From Social License to Class Action – Climate Change Litigation
Has Come to Canada, Project Proponents Beware
The bold move towards climate change litigation is progressing in Canada as seen in last year's Voters Taking Action on Climate Change v. British Columbia (Energy and Mines), 2015 BCSC 471 ("VTACC"). Examples of similar litigation in other jurisdictions around the world are outlined below. The Alberta Environmental Law Center noted that at the end of 2013, there were 420 climate change cases in the United States and 173 in the rest of the world out of which approximately 10 cases are in Canada. It has been observed that some of the cases are brought pursuant to common law tortious causes of actions while others challenge decisions of regulatory authorities pursuant to specific legislation and are aimed at driving the course of climate change regulation. Further, some of the cases arise in the context of specific project approvals and others are petitions affecting a particular industry sector. While climate change litigation in Canada is in its infancy and, as in other jurisdictions faces significant legal challenges to its success, it poses a tangible risk to development projects. Read the full article by Chidinma Thompson and Sandi Shannon of Borden Ladner Gervais LLP. 

McCarthy Tétrault Releases Fifth Annual Mining in the Courts
The firm McCarthy Tétrault recently published Mining in the Courts, Year in Review, which provides an overview of legal developments and case law updates on matters that impacted the mining sector in the past year. In this publication, the firm provides perspective and insights on issues important to the mining sector, and is ideal for mining executives and in-house counsel looking to understand the impact of recent decisions on their business and investment strategies.

Fines Could Triple under Proposed Legislative
Amendments to BC Wildfire Laws
The government of British Columbia has introduced legislative changes that, if passed, would result in "significantly increased ticket fines" for behaviour that contributes to increase wildfire risks.

Proposed legislative amendments introduced [in March] as part of the Forests, Lands and Natural Resource Operations Statutes Amendment Act (Bill 12) include provisions aimed specifically at people who interfere with firefighting efforts in BC, the Ministry of Forests, Lands and Natural Resource Operations said in a press release. The ministry said that the legislative changes would result in significantly increased ticket fines for 19 different violations under the Wildfire Act and for seven different violations under the Wildfire Regulation. For example, the fine for failing to comply with a fire restriction under the Wildfire Act is increasing from $345 (including a $45 victim surcharge) to $1,150 (including a $150 victim surcharge). This represents a 333.33% increase over the old fine for that offence. Read the full article published on Canadian Underwriter.ca.

Polluter Still Pays: BC Court of Appeal Upholds
Award of Damages Against Historical Polluter
The British Columbia Court of Appeal upheld a lower court decision ordering ICI Canada Inc. (now PPG Architectural Coatings Canada Ltd) to pay $4.75 million in remediation costs following a trial which enforced the "polluter pays" principle that underpins the Environmental Management Act (EMA). We previously discussed the 2014 trial decision of the British Columbia Supreme Court in an earlier post (see BC Supreme Court Stresses "Polluter Pays" in Awarding Damages for Remediation of Contaminated Site).

Background
This case involved a property known as James Island, which lies just off the Saanich Peninsula and has a long history of use for the manufacture and storage of explosives. ICI owned and used the property for activities relating to explosives between 1954 and 1988 and remediated portions of the island in consultation with the BC Ministry of Environment and Parks in the mid-1980s. At the end of the remediation project, the Ministry provided ICI with a so-called "comfort letter" confirming that it had met the agreed criteria and that the Ministry "did not perceive any further environmental concern". In September 1988, ICI registered a restrictive covenant on a portion of the island which stated, among other things, that some soil may be contaminated despite rehabilitation measures.

Read the full article by Laura Gill, Brad Gilmour and Michael Theroux of Bennett Jones LLP. 

Fish Habitat Damage Goes Unprosecuted Since
Conservative Changes to Fisheries Act
Fisheries and Oceans Canada has not laid a single charge of damaging fish habitat, despite almost 1,900 complaints nation-wide, since controversial changes to the Fisheries Act came into effect two a half years ago.

Fisheries data provided at The Vancouver Sun's request shows that of 1,865 complaints, federal staff concluded 1,290 posed a low risk to fish and fish habitat, or were referred to another agency such as Environment Canada or a provincial ministry.

Another 460 reports resulted in the federal fisheries department providing advice or education to the party involved to improve work practices or undertake mitigation.

In 44 cases, the department took action such as issuing warnings or ordering corrective measures to comply with the Fisheries Act and avoid charges. Three others were referred to a restorative justice process. Other cases remain under investigation. Read The Vancouver Sun article. 

Nadleh Whut'en and Stellat'en Hereditary Leaders
Proclaim BC's First Aboriginal Water Laws
The hereditary leaders of two northern BC First Nations proclaimed the first traditional aboriginal water laws in the province, which could have implications for industrial development including mining and LNG pipeline projects.

The Nadleh Whut'en and Stellat'en First Nation traditional leaders declared on [March 30^th] no development would take place on their traditional territories in the Northern Interior unless the water laws were followed.

"We are here to make it safer for everybody. We are here to make it safer for the animals, ourselves and the plants," said Nadleh Whut'en chief Martin Louie. "You can do it our way, or not do business at all."

The First Nation leaders said their power to enact the water laws were backed by a historic 2014 Supreme Court of Canada ruling that granted a Tsilhqot'in Nation title to 1,740 square kilometres of traditional territory in the Interior, and pushed consultation obligations for government to a higher threshold. They also cited a landmark BC Court of Appeal ruling involving the Stellat'en and nearby Saik'uz First Nation, which allows First Nations to launch lawsuits to protect their territory from companies, even before proving aboriginal title.

The First Nation leaders said they have notified the province and industry about their water policy. Read The Vancouver Sun article.

Environmental Appeal Board Decisions
There were two Environmental Appeal Board decisions released in the month of March:

Water Act

• Bridge Creek Estate Ltd. v. Assistant Regional Water Manager [Final Decision – Appeals Dismissed]

Wildlife Act

• James Darin Weins v. Regional Manager [Final Decision – Appeal Dismissed]

Visit the Environmental Appeal Board website for more information.