FLASH-EL-Cases.txt

• JR-Lack of Jurisdiction will be reviewed by correctness
• Two NGO's sought review of six forest management plans. The Minister failed to adhere to the legislation when creating the plans which was a condition precedent. The Minister's duties to act in accordance with the statute are NOT discretionary

JR-REASONABLENESS-Decision was discretionary in nature, polycentric.Scoping-Approval of a winter road. Whether the Minister had complied with the Act, given amendment making ecological integrity the first priority in parks management. Questions of discretion with respect to competing priorities are not held to the standard of correctness. Pre-Dunsmuir!

JR-REASONABLENESS-Scoping of environmental assessment of a proposed forest development /Decision was split between questions of statutory interpretation (correctness) and discretionary decisions (reasonableness)

• JR-reasonableness-legal mixed w/ fact-cannot be extricated from the legal question
• Alleged breach of duty to consult regarding the design of the regulatory and environmental review processes related to the Mackenzie Gas Pipeline. The question of whether there is a duty is a question of law. Whether the duty has been met is reasonableness. BOTH-as long as there is evidence that the government has made legitimate and reasonable efforts to consult, then the process doesn�t have to be perfect

• Difference between provincial adjudication vs. legislation
• protected aboriginal right. Additionally, he argued the Forest Appeals Commission lacked constitutional jurisdiction to adjudicate matters relating to aborg. provincial statute authorize a provincial board or agency to adjudicate in regard to s. 35 The doctrine of IJI does not get triggered for adjudication, only legislation

Private Prosecutions:the trend has been for the Crown to intervene and stay the proceedings. Kostuch alleged the Oldman River Dam project violated federal legislation. Prosecutorial discretion will only be review where there is flagrant impropriety or bias (misconduct bordering on corruption, violation of the law, bias against or for a particular individual or offence).

• (Kostuch)1. Can�t be just �abstract interest of all Albertans� but don�t have to show affected in a way �unique or different than that of any other Albertan� (unlike public nuisance) � Personally directly affected � Causal connection
• 2. Doesn�t have to be a legal right or entitlement that is affected (although that helps)
• 3. Level of Proof � a preponderance of evidence that he will potentially be harmed

meaning of �deleterious substance� and �water frequented by fish�-depositing a deleterious substance into water frequented by fish-The act prohibits deleterious substances, NOT ones that may becomes deleterious. it is just anything capable of making it deleterious. IT IS STRICT-The offence is complete even if it does not render the water polluted

• Precautionary principle applies indirectly. Pesticide, landscaping spraying company challenging the bylaw that non-essential use of pesticides is prohibited on the ground of ultra vires the municipal government. Discussion of the�precautionary principle� as potentially strong enough to be customary international lawInternational law may be used as an interpretive aid because it is presumed that the legislature respects the values and principles enshrined in international law. Customary law may be directly applied or may be indirectly applied. Municipal by-laws must fit within the parameters of the enabling statute
• - by-laws must be passed with a municipal purpose and not an ulterior motive
• - The federal legislation is permissive
• By-laws may be enacted within the parameters of the provincial enabling statute. As long as they do not create an impossibility of dual compliance with federal legislation they will be deemed operative.

JR:correctness-Open pit coal mine near Jasper National Park. EA trigger was s.35(2) HADD approval required. Minister found that the Project may potentially result in significant adverse environmental effects and then referred to a panel under CEAA (joint review). AWA challenged that the Panel hadn’t met its obligations under s.16. duty to consider cumulative effects under s.16, including gathering the relevant info needed to make recommendation. Also was a duty to consider the alternatives. Have to consider cumulative effects and alternative means that are technically and econo feasible under s.16 -Should have considered forestry and mining operations in area-error of law=correctness review

• s.16 CEAA Scoping-RA was entitled to scope the PROJECT as it wants under s.15 (1) and then consider all aspects under s.15 (3). RA was required to consider cumulative effects, including the effects from the logging road and forestry operation.
• The RA incorrectly limited their review to the items in Federal jurisdiction.
• Originally the project was the logging road and two bridges to move logs to one of the mills. Then the two bridges became the focus. NWPA was the EA trigger. RA was Minister of Fisheries and Ocean, delegated to Canadian Coast Guard. Challenged the RA’s decision to scope the project as the two bridges. RA scoped the assessment incorrectly- Independent utility principle doesn’t apply
• - 15 – RA has discretion to scope however
• - 16 – RA must consider cumulative effects outside federal juris and outside the project scope

• CEAA/public interest standing 1-Compliance with CEAA raises a serious and justiciable
• questionAs proposed and presented by the company, nature of the project was the size that it required a comprehensive study. S.21 said at the time that a project on the comprehensive study list required public consultation as to the scope of
• the project. The RA downgraded the project and rescoped to only tailings ponds(screening level assessment + no public
• consultation). Language in s.21 requires public consultation to occur in order to scope. Go to the regulations first, then scope.- TJ – rescoping the project goes against the principles of CEAA to ensure public consultation for large projects- Fed CA–s.15 gives broad discretion to scope
• however they want, including downgrading *Note* 2010 Amendments – Addition of s.15.1 – Minister may limit scope (re-scope)Change of s.21 – removes mandatory public consultationpublic interest standing:
• 2. Applicant has sufficient interest – more than a mere bona fide interest and concern about environmental issues
• 3.Geo proximity is not a consideration. Just because there are others who might have but haven’t commenced action, should be NOT reason for denial.Where the applicant
• has a genuine interest and there is no evidence of another party that could reasonably be expected to bring challenge.