The Supreme Court of Canada dismissed the application for leave to appeal in the case of Highlands District Community Association v. British Columbia (Mines). Ian Knapp of MacKenzie Fujisawa LLP was lead counsel for the community association, with generous help and support from Eugene Meehan Q.C. and his team at Supreme Advocacy LLP and Calvin Sandborne Q.C. of the University of Victoria Environmental Law Centre.

This case was about the relevance of climate change to resource extraction projects. The decision maker, in this case an inspector under the BC Mines Act, in effect said that climate change considerations were irrelevant environmental impacts and expressly ignored local community concerns about this most significant environmental challenge.

The thrust of the HDCA’s argument was that Canada’s international commitments and the significance of climate change as an environmental problem made it patently obvious that the decision maker should have investigated and assessed the climate change impacts of the project. Alas, all courts deferred to the decision maker on what constituted relevant environmental impacts on these facts.

The result is indeed disappointing to our client, but should also be disappointing to Canadians in general, particularly in light of the ongoing COP26 summit. Our law presently has no mechanism to enforce as a matter of course the lofty promises that politicians routinely make and then quietly abandon out of political expediency, leaving our younger generations an uncertain future and a more challenging natural environment to contend with.

That said, there is a window of hope. Our Court of Appeal provided guidance to community groups and industry on how to handle climate change considerations into the future. Madam Justice Fisher rejected the absolute statement made by decision maker that climate change “is not relevant”, but said that the decision turned on the facts of the case and the hard evidence (as opposed to common knowledge and international commitments).

Community and environmental groups seeking to push climate change assessments forward should be prepared to tender hard evidence and reports to decision makers, to ensure that these concerns are simply dismissed out of hand. While community members raised concerns about climate change throughout the process, no hard evidence was ever provided to the decision maker about the climate change impacts of this project. Had that evidence been tendered, the court may have taken a very different view.

For their part, developers and industry proponents should consider getting out ahead of this type of litigation and ensure that their environmental consultants assisting them in developing a proposal also undertake a carbon footprint analysis of each proposed project.

Climate change litigation is proliferating, community associations are far better organized and funded now than they once were, and it is only a matter of time that a similar case with better evidence from community associations or environmental groups arises. Because courts will only rarely second-guess the ultimate judgment call of a decision maker weighing competing evidence, ensuring that you have already gathered evidence and addressed the issue in your planning process will fortify your ultimate project plan against future challenge.

The lawyers at MacKenzie Fujisawa have considerable experience with resource development issues and litigation, having acted for both a wide range of industry and development clients and community associations.  We would be happy to use our experience and objectivity to help you with your legal needs in the future.

Canadians have re-elected a Liberal government. Although little has changed in terms of the composition of Parliament and, as is typical, most campaign promises made were spending initiatives, we expect to see several significant legal measures in the coming sessions there, based on the promises made and issues fought during the highly competitive election.

The purpose of this blog post is to look at two central planks of the successful party’s platform – Housing and Climate Change – and to provide some predictions of what is to come. 

HOUSING & REAL ESTATE

The first big-ticket item was real estate, and the Liberal Party put considerable detail in their campaign promises on efforts the party plans on making in the coming Parliament to make housing more affordable for middle-class families.

The Liberals’ platform promised a change in the Canadian housing situation since the dream of owning a house for the younger generation is far from attainable. Justin Trudeau stated during the election, “Let’s put Canadians’ health and safety first. Let’s build more homes for the middle class and put a stop to profiteering and unfair speculation.” Of note, the platform proposed aggressive regulatory measures to cut down on foreign ownership of real estate; and suggested a sweeping housing “bill of rights,” which the party claims will build more housing and boost consumer protections for home buyers, including banning the practice of blind bidding. Includes the price a buyer is willing to pay, as well as any conditions, such as home inspections, closing dates and financing. 

Not all of these changes are without controversy, particularly the proposed ban on blind bidding. Blind bidding is a practice in which competing bids are concealed from the market, and parties must make offers to purchase a property “in the dark.” In the overheated housing markets that were common last year, this created situations where buyers were bidding tens of thousands of dollars more than the asking prices and potentially much more than what was needed to come out on top. Many say the proposed ban is a needed reform. The British Columbia Real Estate Association, however, as opposed to some of the proposal statements. The British Columbia Real Estate Association encourages the new federal government to make collaboration a central focus of upcoming work on housing affordability in Canada. 

The catch to this ambitious regulatory agenda is that almost all of the regulatory changes proposed by the Liberals fall within spheres of what is viewed as traditionally provincial jurisdiction. The government will thus need buy-in and cooperation from each of the provinces, and, given experience with carbon tax legislation, that cooperation cannot be assumed. As a result, we expect to see some litigation in the coming years over the ability of Parliament to enact measures. 

The platform also made numerous spending promises to increase housing supply and help fund homeownership for middle-class families; in particular, it promised to set up financial incentives for everyday Canadians to buy homes and fund the construction and repair of affordable housing. We expect that there will be plenty of economic opportunities for property developers to take advantage of in the coming years. 

When that change does materialize, MacKenzie Fujisawa LLP has extensive experience in helping property developers see their plans through to successful completion. Our lawyers have acted for major construction companies and developers, in a wide variety of development contexts, from simple transactions to strata property developments to significant subdivisions, including air space subdivisions. All such transactions we expect to be affected by the new Parliament. Where disputes arise, either with regulators, municipal agencies, neighbours, or other businesses, our seasoned litigation team has the experience to see you through to a successful resolution.

CLIMATE CHANGE AND THE ENVIRONMENT 

The elected Liberal party has also proposed significant changes regarding climate change and environmental protection, continuing a pattern of previous Parliaments. As a result, we expect further laws and investments that emphasize environmental protection and promote green development.

Liberals have claimed that they are focused on solutions that cut pollution, protect the environment, and fund clean technology initiatives and their climate change plan had more detail in terms of policies than any of the other parties contesting the election. The result will continue prioritizing environmental protection and a more challenging regulatory landscape for the forestry, mining, and fisheries sectors. For example, the current government has been pushing the development of marine and land-based parks, particularly in British Columbia. We expect this process to continue, although litigation will no doubt accompany it.

The forecast is not entirely gloomy for business, however. The Liberal platform also promised significant investment in green and clean technology, and companies will have substantial opportunities. 

Running parallel to reconciliation, another important theme of this most recent election was the Liberals’ promise to create deeper relationships with Indigenous communities and provide more meaningful opportunities for Canada’s first peoples to participate in resource management decisions and governance, continuing another trend from recent Parliaments. From now on, businesses involved in property and resource development should be prepared to listen to and accommodate the concerns affected indigenous groups during all phases of resource development, much as they have in the past with municipal, provincial, and federal governments. 

MacKenzie Fujisawa’s Environmental & Natural Resources Practice Group provides advice to domestic and foreign clients on a broad range of environmental issues. The firm has extensive knowledge of the regulatory frameworks that impact several British Columbia industries that will be affected by the changing landscape, including fisheries and aquaculture, forestry, mining, agriculture, and oil and gas.

Need assistance in navigating these changes? MacKenzie Fujisawa has been providing solutions to clients since 1963. Call us for a consultation.