1. Section Activities

1. "Judicial Review of Federal Environmental Decisions: Comments on the Point Pleasant Park Injunction" featuring Paul Falvo as a guest speaker. Paul was the solicitor for the Friends of Point Pleasant Park who sought to judicially review a decision of the Minister of Agriculture to cut trees in Point Pleasant Park as a means of controlling infestation by a European Beetle. Meeting notes are attached;

2. "Update on Kyoto: Recent Events in the Hague" featuring Meinhard Doelle as a guest speaker. Meinhard was one of three representatives from Canadian Non-Governmental Organizations to recent international negotiations in the Hague. Meeting notes are attached;

3. "Current Issues in the Atlantic Offshore" featuring James Wooder, Executive Director of the Atlantic Canada Petroleum Institute. The Marine and Environmental Law Program of Dalhousie University Law School sponsored this meeting. Meeting notes are still being compiled.

We are currently finalizing arrangements for three further meetings for topics including "Contaminated Sites/Risk Based Corrective Action", "Clean Water" and an update report on the five-year review of the Nova Scotia Environment Act.

2. Meeting Arrangements

   In order to facilitate meetings, the Subsection attempts to meet at lunch at the office of one of the members. Meetings generally last one to one-and-a-half hours, and we try to involve a guest speaker as much as possible. One attempt is made each year to schedule a meeting outside of Halifax, however, the majority of meetings are held in Halifax.

3. Recent Case Law Developments

The most recent federal case have substantial impact was the decision of the Federal Court in Friends of Point Pleasant Park et al. v. The Attorney General of Canada (F.C. T-1235-00). The decision regarding an injunction is reviewed in the attached notes. The applicant, Friends of Point Pleasant Park, and two personal applicants, sought to quash the decision of the Canadian Food Inspection Agency, that ordered mass cutting of trees in Point Pleasant Park in an attempt to control possible infestation by Brown Spruce Long-Horn Beetle (BSLB). One particularly interesting point was raised, namely: What level of public participation will discharge the duty of procedural fairness?

The first question was raised as a result of a Notice to Dispose that was issued by the Respondent. The question was considered at paragraphs 39 to 41 of the decision:

39. From the record in this case the duty was clearly fully met so far as it was owed to the municipality, and to its advisory committee on the Park, and to industry representatives, all of whom were included in the BSLB Task Force. Moreover, the applicants in this case, and others in similar positions, who were not involved in the formal process leading to the decision, could not have been unaware in early June of the presence of BSLB in the Park and of the fact that CFIA would soon decide what was to be done about it.

40. The applicants are concerned that they could not get information about the scientific basis of the CFIA decision before or even after June 14. Their complaints on this ground may well be taken seriously by CFIA. While I do not agree that the agency, in advance of the Notice of Disposal, had a legal duty to provide scientific evidence on which it acted, in our democratic society accessible information on which public action is based is essential if public understanding is to be generated. That may be as important now as it was in June, assuming CFIA pursues its proposals to eradicate BSLB in the Park.

41. Despite the principle of good public administration, I am not persuaded that the CFIA breached any legal duty owed to the applicants in the process here followed. While the process might have been more open and it might have dealt more efficiently with requests for information, it did not preclude the submission of views, opinions and questions and efforts were made to deal with some of those. IN my opinion, the process did not violate principles of procedural fairness in the circumstances of this case.

4. Legislative Developments

Bill 73, the "Nature Reserves Protection Act" (NRPA), is meant to update and improve upon the existing Special Places Protection Act (SPPA). The latter had provided for the establishment of ecological reserves or nature reserves. Some shortcomings that the government identified in the SPPA included:

• Management planning provisions were time consuming and provided an obstacle
• The Special Places Advisory Committee, which plays a central role, was inactive
• Designations on private land did not explicitly run with the land over time
• There was a lack of flexibility to allow for different management options
• Regulatory and enforcement provisions required updating

One additional criticism made by environmental groups was that the SPPA offered minimal protection of ecological sites.

The NRPA will provide for the following:

• Increased public consultation in planning and designation of Crown owned reserves
• Voluntary designation private lands
• Restrictive covenants to run with privately owned designated lands
• Clear identification of permissible and prohibited activities
• Accommodation (or in some cases, extinguishments) of pre-existing rights
• New selection processes
• Temporary stop orders in light of immediate threats
• Updated enforcement provisions

Environment Act five-year review

Last year, I reported that the Subsection had prepared a lengthy submission to the provincial Department of the Environment (now the Department of Environment and Labour) in accordance with the Department's five-year review process of the Nova Scotia Environment Act. The Legislative Review Committee (the "LRC") reported its findings in October 2000.

In the LRC's report, forty-six recommendations were proposed. These are available at http://www.gov.ns.ca/enla/ecs/review.htm. Few substantive and specific recommendations were included.

Guidelines for Monitoring Public Drinking Water Supplies

In October 2000, new guidelines and regulations were introduced. Specifically, the Water and Wastewater Facility Regulations under the Environment Act was amended. All owners with a minimum of fifteen service connections or serving twenty-five or more people at least sixty days of each year are subject to the regulations, as well as municipal suppliers, commercial or non-profit facilities, restaurants, schools, nursing homes and campgrounds. Previously, this service was performed by the Department of Health in conjunction with the Department of the Environment.

Following a pilot project in Annapolis County, responsibility for the continual monitoring of public drinking water was shifted from government to the private sector.

These suppliers are required to test on a scheduled basis for microbiological quality and chemical and physical quality.

Public Access to Environmental Assessment Information

On January 11, 2001, the Department of Environment and Labour introduced a web-based access program to obtain further information of projects registered for environmental assessment under Part IV of the Environment Act. This may be accessed at http://www.gov.ns.ca/enla/ess/ea/. Unfortunately, at the time of writing this report, the page listing existing projects was still under construction.

5. Summary

   Within the last six months, there has been a substantial level of activity on the legislative end of the environmental law in Nova Scotia, although litigation appears to be limited.

   Should you have any questions, I would be pleased to address them. My contact particulars are:

   Eugene Y.S. Tan
   Cooper & McDonald
   1669 Granville Street
   Halifax, Nova Scotia
   B3J 1X2
   Tel: (902) 429-2191
   Fax: (902) 425-3217
   etan@coopermcdonald.ns.ca
   

   Sean Foreman will be replacing me as chair of the subsection in June 2001.