Environmental Law for Business 2022: Developments in Western Canada

Maya:              Alright, well we're just a minute past the hour so we might get going here. Hello, everybody. Thank you so much for joining us today. So my name is Maya Stano and I was born and bred in Blackfoot territory in Southern Alberta. Today I'm honoured to have the opportunity to live and play within the traditional territories of the Tsleil-Waututh, Squamish and Musqueam Nations here in Vancouver, where I practice environmental, resource and Indigenous law with our colleagues across the Western and National offices. Although based in Vancouver my practice often takes me across Western Canada, including up North where I just came back from a cold but very refreshing winter wonderland. Next slide, please.

                        So today we have a full packed schedule covering hot topics that have emerged in the environmental law realm over the past year. I'm please to be joined with a number of Gowling WLG Western Canadian Environmental Law group members for our discussions today. We'll be covering EPR, or extended producer responsibility requirements, the increased regulatory focus on plastics, including their use and management, Indigenous ecosystem stewardship rights and approaches and finally, hot off COP27, climate change litigation. As well, if we have time, we'll do a bit of a brief overview over ESG. Next slide, please.

                        So with that I'll start with turning the mic over to my colleague, Emma Hobbs. Emma is originally from London, Ontario and now lives and works in Vancouver. Prior to joining Gowling Emma completed a Master's degree in biology and worked in Municipal Government. Today her practice covers Indigenous, environmental and regulatory law, including advising companies on their private stewardship and extended producer responsibility obligations. Emma and Mark, who will be speaking after Emma, regularly publish stewardship updates with the next one planned for mid-January. So keep an eye out for those helpful publications that come out twice a year and please feel free to reach out to them if you have any questions following today or moving forward. With that, over to you, Emma.

Emma:             Thanks, Maya. Hi, everyone. I'll start with a brief overview of these programs. So throughout Canada Provincial Governments and non-governmental agencies have developed programs to divert waste from the residential stream away from landfills. These programs shift responsibility for product waste away from consumers and governments and onto the producers of the products themselves, to various degrees. There are two types of programs. The first are product stewardship programs which are partially funded by government or consumer paid environmental fees. The second are extended producer responsibility programs, or EPR programs, which place the full responsibility and costs for products onto the producers. Currently there are 84 of these product stewardship and EPR programs across Canada, covering a number of product types as you can see. These include electronic products, packaging and printed paper and beverage containers, and the number of these programs is increasing. Next slide, please.

                        So starting with British Columbia, since 2004 BC has regulated the most packaging and other products of all Canadian jurisdictions. BC's EPR programs have collected over 4.5 million tonnes of products and packaging since they began in 2004. A 2016 study by the BC Government found that in a single year BC's EPR programs recovered more than 40 million dollars worth of materials and reduced greenhouse gas emissions by over 200,000 tonnes. Currently, the BC government is working to expand EPR in the Province. So earlier this year BC released its Extended Producer Responsibility Action Plan for 2021 to 2026, which outlines the priorities that BC must focus on to advance as a leader in EPR and waste management. There are two main focuses of the plan. The first is adding more products to the recycling regulation. So some of these products include a hybrid and electric vehicle batteries, mattresses, compressed cannisters, medical sharps and emerging electronic devices. The second focus is researching options for how packaging and paper can be diverted from industrial, commercial and institutional sectors instead of just the residential system, which is the current focus of these programs. Next slide, please.

                        Moving on to Alberta. Until recently Alberta's recycling programs have operated under product stewardship model, but at the end of last year the Alberta Government passed the Environmental Protection and Enhancement Amendment Act, which sets out an EPR framework for Alberta and provides for Provincial systems for managing single use plastics, packaging and paper products and hazardous and special products. On October 3, so just a few weeks ago, the Alberta Government approved the Extended Producer Responsibility regulation, which comes into force tomorrow, on November 30, 2022. This new regulation creates two EPR frameworks in Alberta. The first is for single use products, packaging and printed paper. So that will include products such as newspapers, single use straws and single use cups and the second focuses on hazardous and special products. So that will include things like batteries and household chemicals and pesticides. So both of these programs will be overseen by the Alberta Recycling Management Authority, or ARMA, which currently oversees recycling programs in Alberta. There are a couple of key dates to keep in mind for these new programs. So producers need to provide verification of collection and management plans to ARMA by April 1, 2024, and the EPR systems will be fully operations by April 1, 2025. So for Albertans, they won't see any changes until that date, April 1, 2025, but there will be progress in between. If anyone is interested in learning more about this new framework, Mark and I published an article this morning which covers this topic in more detail, and you can find it on our website. Next slide, please.

                        Finally I'll touch briefly on Saskatchewan and Manitoba. Both of these Provinces are currently working to transition their packaging and printed paper recycling programs to full EPR models. So in Saskatchewan the government released a draft regulation earlier this year for public comment and consultation is ongoing on that. In Manitoba, Multi-Materials Stewardship Manitoba which currently oversees Manitoba's recycling programs, is reviewing feedback from the public regarding their draft transition plan. The plan outlines the transition of Manitoba's packaging and printed paper program, which is currently under a producer model to a full EPR model. So our group will continue to monitor these programs. As Maya said, we'll be releasing another update in mid-January, so stay tuned for that. I'll turn it back to Maya now.

Maya:              Thanks so much, Emma. Next slide, please. So we'll now turn to my colleague, Mark Youden. He's one of my partners here at Gowling WLG. Mark is a proud Maritimer but he's been living now for several years and working in Western Canada. Prior to law Mark worked as a environmental consultant and is now called to the Bar in BC, Alberta, Ontario and the Yukon, with a practice covering both the advisory and litigation aspects in environmental and regulatory law. Mark, could you please take us through some recent developments in respect of plastics?

Mark:               Thanks, Maya. So Emma just told you about the dynamic world of EPR and product stewardship. Plastics Regulation Canada is related and it's also in a state of flux. So all three levels of government in Canada have been very active as of late in restricting, and even in some cases banning, the use of plastic manufactured items. On the Federal side of things most of you will remember in 2020 the Government of Canada made a pretty big splash by announcing that they planned to ban single use plastics from sale, manufacturer and import to Canada. This came following a pretty comprehensive scientific assessment that found that plastic is polluting Canada's rivers, lakes and oceans, harming wildlife and generating micro-plastics in our drinking water. The Federal Government has since implemented that ban by adding plastic manufactured items to the toxic substances list under Canada's Environmental Protection legislation. Very briefly, when a chemical or in this case plastic manufactured items, are added to the toxic substances list it allows the Federal Government to restrict or prohibit the use of a substance. So these plastic manufactured items are characterized as macro-plastics because they are larger than 5mm in size. Micro beads, which are a type of micro-plastics, are characterized by being smaller than 5mm in size. They were added to the toxic substances list back in 2015. So people will be aware of micro beads. They often did show up in cosmetic products, in your shampoos and the like. They are no longer showing up because they are banned and Canada has implemented those bans by way of regulation. So the latest development in this policy initiative occurred this summer with the registration of the single use plastics prohibition regulations. These regulations fall under the Environmental Protection Act, so the Canada Environmental Protection Act, 1999, and they provide further detail on the Government's plan for the ban. Specifically, the regulations prohibit the manufacture, import and sale of six categories of single use plastic manufactured items, namely check-out bags, cutlery, straws, food service ware, so that's your disposal cartons that come with your burgers and your sandwiches that you get from fast food joints, or any carriers that you find on our beer or soft drinks, and finally, stir sticks. As of today it's only those six example of micro-plastics or plastic manufactured items that are banned by the Federal Government. Now for consumers, the important dates to remember for the prohibitions on sale are December 20, 2022, so within a month all check-out bags across Canada will be banned. Also, cutlery, food service ware, stir sticks and certain straws will be banned as well. So December 20, 2022. Then by June 20, 2024, ring carriers and flexible straws on juice boxes will be banned. So for all you parents out there, you have a few more years of packing the juice boxes with the nice little bendy straw.

Just further on the Federal front, Canada's also been carrying out consultations on two other plastic related regulations. So the first one would require certain plastic items to be made of at least 50%25 recycled materials. So the proposed categories for those 50%25 recycled materials threshold are beverage containers, bottles, rigid containers, foam packaging, flexible packaging, garbage bags and waste bins. So these proposed regulations are expected late this year but probably going to be early next year. The second proposed regulatory change is focused on labelling and registration of plastics. So these new regulations would prohibit the use of the recycling label and other recyclability claims on products unless at least 80%25 of Canadians have access to recycling systems for that product. So if you think about that in remote areas, it's going to be very, very difficult to sell certain items now to the consumers simply because the access to recycling systems just is not there. So this will of course affect companies using a coveted mobius loop on their products, it's on a slide here. Another aspect of these regulatory changes is the introduction of mandatory third party certification for products labeled as compostable or biodegradable. So this gets into the spirit of greenwashing, and I won't dwell on it, but it's going to be quite significant for manufacturing companies and retailers to take a mindful eye of their labels and making sure that the products are in fact compostable or biodegradable when they say so.

The final Federal regulatory initiative is the implementation of a national registry for tracking plastics. So this is interesting because it requires the producers of plastic products to track where their products are going in the Canadian marketplace, and how such products are being diverted from landfills, with a focus on the end of the life of the plastic product. That's still in the consultation stage. Sorry, in fact the consultation stage just recently finished but the target date for implementation has not yet been released. Next slide.

So I just told you all about the Federal Government in plastics. On the Provincial side of things the Provinces are also very active. So for example, Nova Scotia, PEI, Newfoundland, Yukon and the Northwest Territories have regulations prohibiting and restricting the use of plastic bags. So other Provinces are in consultation stages or otherwise waiting for full implementation of the Federal bans before taking action. In BC, starting January 2023, BC's recycling regulation will be amended to cover some new items. Of those are stir sticks, straws and utensils, party supplies, freezer bags and cardboard moving boxes. Now this is interesting because in BC there's a pretty robust extended producer responsibility program for packaging and printed paper, which covers some cardboard that would ultimately end up in the Municipal waste stream. Now for the first time the Provincial Government will start to regulate the end of life of cardboard moving boxes. So whether that goes to business to business, cardboard or any corrugated cardboard that is currently not covered we'll see, but it's a pretty interesting move for the Provincial Government to be seen doing that. As part of this initiative BC carried out a pretty extensive public engagement. It's garnered a lot of attention. The results of this public consultation will be published pretty soon and the report will be called 'What We Have Heard'. Next slide, please.

So finally, the third level of government. So on the Municipal side of things, there are currently over 120 municipalities across Canada enacting or developing single use plastic bylaws. They range in the Province that they're covering, most have the similar suite to what we see in the Federal Government targeting. So your plastic straws, your plastic bags, but some municipalities are only implementing bylaws for banning plastic bags. At this time the majority of them, so the majority of the municipalities that have taken action, are actually in British Columbia and Quebec. But every day, every week we're seeing announcements in other Provinces. I believe there's eight currently in Alberta. So what's really interesting about many of these plastic bylaws is that unlike the EPR and product stewardship programs that Emma told us about, the plastics bylaws actually impose an additional burden on the consumer. So for example, as of January, 2022, the City of Vancouver banned plastic bags and required businesses to charge a minimum fee of 15 cents for paper shopping bags and a minimum of one dollar for the reusable cloth bags. So as part of that same law coffee drinkers are now also required to pay another 25 cents, so a 25 cent cup fee on their disposable cups. So the policy argument behind these bylaws is, well, the fees will change consumer behaviour. However, most bylaws don't actually require businesses who collect the fees to use them for an environmental initiative. So in those circumstances these businesses are simply increasing their profits. So there's no requirement in any of these bylaws to use that additional fee to pump it back into development on the sustainability or even going as far as making your products biodegradable or recyclable. It's simply a metric to curb consumer behaviour. So a lot of criticism of those municipal bylaws. That's it for me. Next slide. Thanks, Maya.

Maya:              Thanks for that, Mark, and some good food for thought there especially for municipalities looking to enact new bylaws. So next we have Quinn Rochon. Quinn is an avid skier who has fingers crossed for snow this week and looking outside I expect his wishes to come true with fresh powder coming down at any point. Quinn's practice includes a wide range of environmental rights based matters, with a particular focus on regulatory and governance in this space. Today we'll be hearing from Quinn on some Indigenous lands stewardship update that happened over the past year or two. Over to you, Quinn.

Quinn:             Thanks very much, Maya, and my fingers remain crossed for snow later today and through this week. So as Maya mentioned I'll be discussing some developments at the intersections of environmental and Indigenous law, particularly Indigenous land management and government. So as many of you may know the BC Supreme Court last year released its decision in Yahey and British Columbia. So admittedly this is cheating a little bit because it was a development in 2021, but we've included it because we think its impacts have continued throughout this year, and have been significant throughout this year. So as a very brief refresher, the claim was brought by Chief Yahey on behalf of Blueberry River First Nation, and the claim was brought against the Province of British Columbia. Blueberry alleged that the Province had permitted industrial development throughout their traditional territory to a degree to which the Blueberry members were prevented from exercising Treaty rights to, for example, hunt, trap and fish and the Court ultimately agreed with Blueberry. What you see on the right hand side of the slide there is a map prepared for the purposes of litigation, that illustrates the extent of industrial development throughout the territory, that was used during the case. So as far as the impact of the Yahey decision goes, it's focus on cumulative effects really put a spotlight on the environmental assessment regulatory regime as a whole, rather than as single decision points or single projects which had largely been the focus of past challenges and litigation. From our perspective the decision helps inform how stakeholders should think about cumulative effects and, also crucially, how to determine how and when those effects are reaching or have in fact passed thresholds of significance or severity. This is really important because the environmental assessment regimes or impact assessment regimes, for example in BC, Alberta and at the Federal level, all require that decision makers consider, in almost all cases, the potential cumulative effects of a proposed project. So being able to assess cumulative effects, and determine when they might infringe on Aboriginal rights or Treaty rights, will be a vital consideration going forward in environmental assessments.

Also in early 2022, February, the Province of BC created a new Ministry. A Ministry of Land, Water and Resource Stewardship. The Ministry is accountable for integrated land and natural resource management, including filling objectives for land and marine environments; effectively managing cumulative effects; advancing reconciliation and environmental stability and economic growth. According to the Province, the Ministry was created to deal with the complex matters of Indigenous reconciliation and the overall impacts of decades of development and so on that basis, in our view, the creation of the Ministry stems directly from the Yahey decision and it's a good example of how the Yahey decision impacts that have flowed through this year and we expect will continue on. So as you might know, the Yahey decision was very fact specific, as usual, and was also quite data driven as this map illustrates. So it's a bit of an open question about the degree to which we'll see similar cases brought in other jurisdictions and in other contexts, but if it's any indication about what's to come, a similar case is in fact working its way through the courts in Alberta. Next slide, please.

That is the Duncan's case. Duncan's First Nation and Alberta. Duncan's First Nation is located, of course, in Alberta. It's near Peace River, a few 100 kilometers to the East of Blueberry River, and like Blueberry Duncan's is a signatory of Treaty 8. Duncan's filed a statement of claim against Alberta in July of this year that echoes or mirrors the claims in Yahey. So similar to Blueberry First Nation, and again at a high level, Duncan's alleges that the Province, in this case Alberta of course, has infringed Duncan's member's Treaty rights by permitting industrial and agricultural activity in its traditional territory. Again, to a degree that Duncan's members are, for practical purposes, unable to exercise their Treaty rights. The main sources of industrial disruption at issue in Duncan's are agriculture, oil and gas, energy, so things like power transmission lines, forestry operations, mining operations, transportation and settlement and these are similar, not exactly the same but quite similar, to the sources of disruption that were considered in the Yahey case. Duncan's argues that these disruptions have led to impacts like habitat fragmentation, the degradation of land and water quality, the introduction of hazardous substances into the environment and these are also similar to the effects that were discussed in Yahey. So as of September of this year, the Province had not filed a statement of defense and we still have yet to see one. So we're not quite sure yet how the Province will respond exactly to these allegations, nor the way in which it will try to differentiate this case from the Yahey case, assuming it will. As far as whether or not Duncan's is a harbinger of things to come, it remains to be seen, and it is worth emphasizing that both of these cases, Yahey and Duncan's, have arisen out of Treaty 8 and arisen out of Treaty 8 territory of course, and have at their core a similar set of disturbances. Also as I mentioned the Yahey decision was of course fact specific, context specific and involved a significant amount of data and analysis. This calls into question, somewhat, whether the case can be easily transplanted into different context, or at least the approach the court took in the case. But the Duncan's case is clearly an example that this is happening within Treaty 8 territory and that the court's overall approach in Yahey may be mirrored in future proceedings. It's also worth noting that Beaver Lake Cree First Nation and Treaty 6 Territory has been attempting to advance similar claims since around 2008, but these have been delayed by preliminary court hearings. So we expect First Nations across Canada are keeping a close eye on these cases and we are as well, of course. Next slide, please.

Thank you. So lastly we wanted to address developments in Indigenous land management outside the world of litigation, because of the steady increase in negotiated resolutions. I would just add at the outset that these examples are by no means exhaustive, but we provide them to highlight developments and trends that we think were important this year and that will continue to be important in the short, medium and long term. So first, with respect to shared decision making, the BC Environmental Assessment Act came into force back in 2018 and it has a mechanism built into it that allows BC to enter into agreements with other jurisdictions, including First Nations, that involve these other jurisdictions participation in environmental assessments. In the First Nations context, this can include First Nations carrying out specific portions of an assessment in cooperation with the Province, or carrying out the entire assessment in which case the First Nations Environmental Assessment is actually substituted for the Provincial assessment when it comes time to make a decision on whether to allow the project to go forward or not.

So again, this is cheating a little bit because it occurred at the very end of 2021, but again we think it's important enough to mention here. The Lake Babine Nation and the Province of BC entered into the first agreement under section 21, which is the mechanism in the BC Environmental Assessment Act, and it's a collaborative agreement to advance reconciliation, social and community well-being as well as regional economic growth under BC's EAA. So very, very briefly, the collaboration agreement describes how BCs Environmental Assessment Office and the Lake Babine Nation will work together on future environmental assessments for projects that are in Lake Babine Nation's territory. It also sets out Lake Babine's own assessment criteria for those proposed projects. The Tahltan Mining agreement is another example of shared decision making of a type that we expect to see more of and it was, again, a first of its kind. This agreement was entered into under section 7 of BC's Declaration on the Rights of Indigenous Peoples Act, which among other things seeks to implement the United Nations Declaration on the rights of Indigenous peoples for free prior and informed consent. So this agreement is specific to a particular mining project within Tahltan's territory, but the current Provincial Government has expressed the hope that this agreement will become something of a model for future agreements, and for future industrial development in the Province. The agreement itself is described as consent based and a true partnership that incorporates shared decision making. Again, among other things, it provides an opportunity for Tahltan to review project applications and to actually authorize mining permits. So of course we'll be keeping a close eye on how this agreement and the principle of free and informed consent are implemented.

Lastly, we wanted to address Indigenous land based decision making in the context of Indigenous constitutions and in the context of land laws enacted under the framework agreement on First Nations land management. We've continued to see a proliferation of Indigenous constitutions and of laws enacted under the framework, and among other things, constitutions set out an Indigenous groups governance structure and this is important for a whole wide range of reasons. But what we wanted to highlight today is that these constitutions can, and often do, establish multiple forms or multiple layers of governance. This can include elected Chief in Council structures as well as hereditary structures. Of course we've seen some high profile cases recently of disputes between elected and hereditary governance structures and how this can affect environmental and land based decision making, both inside and outside Indigenous communities, and so we just highlight that in our experience Indigenous constitutions can be effective at mitigating these risks, to some degree, by establishing respective jurisdictions and the roles of governing bodies in a community at the outset. Thanks, Maya, that's all for me. I'll pass it back to you.

Maya:              Great. Thanks, Quinn. Just before we move on to Nick, I just want to make a couple of comments on some of the comments that have been put in the Q&A on the webinar here from Nathan Prince from McLeod Lake Indian Band. Nathan, thanks for posting these comments. Just quickly, very briefly, but in terms of the comment with respect to the Blueberry Nation has not consulted with other Nations before using some of the information that was prepared collectively, there is always an intellectual property question here and that's very important to consider whenever you're working with traditional knowledge, trying to blend it or use it to guide or inform Western science and marrying of the two. I think that that's definitely a piece that needs to be considered from any party. Be it First Nation, a government, a proponent or so on. Further, Quinn touched a bit on the governance pieces and governance is something that we definitely are seeing a lot of expansion from. Right now within Reserve lands there's a relatively clear level of authority in terms of Indian Act bylaws, if you're not under the First Nations Land Management Act. If you are then you've got your land code and, as Quinn was saying, greater jurisdiction and authority over your Reserve lands. But through other agreements such as the Tahltan section 7, the DRIPA agreement, we've also got a number of G2G agreements and I think there's another consent based DRIPA agreement coming out shortly here on heritage matters. So that's where that governance aspect will be secured in a more substantive manner by Nations and it's important to consider that authority in looking at projects or activities within traditional territory. With that, Mark, did you want to say anything quickly about municipalities and local governments have done on pesticide use and so on?

Mark:               Sure just briefly, and thanks, Nathan. I appreciate and agree with your comment that municipalities and Indigenous groups alike are increasingly regulating things like herbicides and pesticides on Crown Land as well as their own lands. There's obviously a long history of jurisdictional issues in the environmental space covering pesticides. Many will know of the Spraytech decision from 2001 where the Supreme Court of Canada indicated that most, if not all, municipalities have general welfare provisions, was in their enabling legislation that allowed them to restrict the use of pesticides. So what we've seen, at least lately, is that a lot of municipalities are moving to use this power and the latest one that I'm aware of, at least in the bigger cities of the City of Edmonton, just this summer the counsellors met and discussed whether or not to implement an additional ban of pesticides and herbicides that would cover cosmetic application. Inevitably there was enough pushback from stakeholders and that, that I believe may have tabled that for now at least. But it's an example of a municipality who is taking on that role and implementing bylaws where jurisdiction, arguably, falls also within the Provincial and Federal sphere.

Maya:              Great. Thanks, Mark. Okay, lots to talk about when we talk about Indigenous stewardships so we're happy to chat about that afterwards if you have any questions and so on. But with that we'll turn over to Nick Tollefson. So Nick is another West Coast transplant, originally from Toronto. He works primarily in advocacy and litigation and in recent years has noticed and increasing focus on climate change in a wide variety of environmental disputes, particularly in judicial reviews of environmental or impact assessments, conducted by the Federal, Provincial or Territorial Governments. Nick, can you take us through some updates in respect of climate change litigation?

Nick:                Absolutely. Thanks so much, Maya, for the introduction. As Maya said I'm going to be speaking today about developments in the legal sphere regarding climate change and in particular some recent court decisions on the subject of climate change. Now the cases I'm going to discuss today show that the courts are really still grappling with what role, if any, they have to play in addressing climate change and kind of distinguishing the role that the court should play versus the role that the legislative and the executive branches of government should play in addressing climate change. So the first slide here talks about the jurisdiction over environmental assessments and, specifically in recent years, the courts have been kind of put into the position of mediator between the Federal and Provincial and Territorial Governments as to which of those parties has jurisdiction over the environmental assessment of major resource extraction or oil and gas projects. So the primary regulatory tool used by these governments to consider the environmental impacts and the climate change impacts of major projects is environmental assessment legislation. In June 2019 there was a major overhaul of the Federal environmental assessment framework when the Federal Liberal Government enacted the Impact Assessment Act. Now the Impact Assessment Act replaced the prior legislation which was the 2012 Canadian Environmental Assessment Act. There are really important differences between the new versus old legislation. From a climate change perspective, I have two main points, and the first is that the new Impact Assessment Act introduced new factors that the Federal Government must consider when it's assessing a project subject to the Impact Assessment Act. It specifically has to consider now the impact of that project on Canada's commitments and its ability to meet its various climate change commitments. The Impact Assessment Act also contains new triggers about when a Federal assessment of a project will be required. So under the former legislation, a project would only have to go through a Federal environmental assessment if there was some sort of Federal hook. Say for example, the project required Federal permit, for example, perhaps in the Fisheries Act, or alternatively, maybe the Federal hook is that the project is at least partially located on Federal land. In contrast, under the new Impact Assessment Act, projects must undergo a Federal assessment if they fall within one of the project categories listed in the Act's regulations, regardless of whether there are any specific Federal hooks. The project list includes projects such as hydro electric projects, certain types of mining projects and other types of projects that we've typically associated with Provincial environmental assessments, and would primarily in times past only have subjected them to a Provincial assessment.

So after the enactment of this new Federal impact assessment, in particular some Provinces, such as Alberta, were concerned that the new Act infringed on their Provincial jurisdiction. So on September 10, 2019, the Government of Alberta referred two questions to the Alberta Court of Appeal regarding the constitution validity of the new Federal Act. For those who aren't familiar, a constitutional reference is essentially government asking the court for an advisory on whether legislation is constitutional or unconstitutional. In May of this year the Alberta Court of Appeal finally released its decision on the reference and the Court found 4 to 1 in favour of the Government of Alberta and found that the Federal Impact Assessment Act had intruded on the Provincial jurisdiction that was held by the Government of Alberta. While the Court of Appeal's ruling was quite detailed and lengthy. At a high level the Alberta Court's reasoning boils down to their finding that the essential character of this new Federal Impact Assessment Act was the establishment of a Federal regime that subjects any activity designated by the Federal executive to a potential Federal impact assessment. Now the implications of the Alberta Court of Appeal determining that the Federal Impact Assessment Act is unconstitutional, the implications could be quite dramatic. While the opinion is advisory in nature, meaning that the Impact Assessment Act remains on the books for the time being, the decision could alter the scope of Federal decision making power over Provincial projects and other projects that aren't located on Crown Federal Land, if they don't have that type of previously discussed Federal … of some sort.

So, however, we will note that the decision is currently being appealed to the Supreme Court of Canada and the Federal Government does have the ability to appeal as of right from the Court of Appeal's decision, and the Supreme Court of Canada very well could overturn the Alberta Court's decision as it did in another recent reference case regarding the greenhouse gas pollution crisis. The implications of the Alberta Court's decision moving forward, given that we're kind of in a bit of a limbo period before the Supreme Court of Canada releases its decision, is that proponents and other people who are supporting major projects would traditionally be Provincial projects, they may want to assess whether it makes more sense to wait and see whether the Supreme Court of Canada actually upholds the Alberta Court of Appeal decision and whether their project may actually be subject to no Federal assessment going forward. I think the second main takeaway is that there's a high degree of uncertainty in the legal landscape regarding environmental assessment jurisdiction and that it's going to be another year or two while the courts kind of grapple through this issue. The hearing for the Supreme Court of Canada appeal is currently scheduled for March of 2023, which means that we're probably, earliest, looking at a decision in summer of 2023. More realistically probably in the fall of 2023 or the winter. I'll go to the next slide now.

The second topic I want to cover briefly is an uptick in climate litigation brought by the public and public interest groups against government. In recent years we've been seeing an increasing number of cases that have legally challenged the Federal Government's climate policy, as a whole, and that marks a bit of a departure from the more common environmental legal challenges we've seen in the past, where environmental public interest groups have challenged individual government decisions. For example, the approval of a pipeline by the Federal Government and having these individual decisions reviewed by a court. But in recent years we've seen decisions, like the one I'm about to talk about, which challenged the Federal policy regarding climate change as a whole. One of the primary decisions that we have now is the Environnement Jeunesse versus Attorney General of Canada decision. So regarding that decision, in 2018 the environmental public interest group, Environnement Jeunesse, brought a class action lawsuit against the Federal Government on behalf of Quebecers under 35. The lawsuit asked the Quebec Court to declare that the Government of Canada had failed in its obligation to protect the fundamental rights of young people under the Canadian Charter of Rights and Freedoms and the Quebec Charter. The claim specifically took aim at Canada's adoption of GHG emission targets that the claimants said were harmful to human life and health and violated the classes rights to life, liberty and security of the person under the Charter. Now recently the claim was actually dismissed by both the Quebec Superior Court and the Appeal Court. Now at the appeal level the Court found that the claim wasn't justiciable. Which means that it wasn't the type of constitutional claim that the Court could properly adjudicate. The Court found that claimants were essentially asking the Court to rule on the Federal Government's climate policy and to order the Government to take greater action on climate change. The Court found that ordering an end to governmental inaction was tantamount to forcing the government to act and that wasn't the proper role of the Courts in our constitutional arrangement. In other words, the Quebec Court of Appeal viewed the court's purpose in our constitutional order is to review specific government action and not to challenge or compel government to take positive action on complex social issues and societal issues like climate change.

Most recently, in July of 2022, the Supreme Court of Canada denied leave to appeal from the Quebec Courts' decision. Now this puts us in an interesting position because we now have a Provincial Court, the Quebec Court, denying that this type of claim is justiciable. But the Supreme Court of Canada still hasn't actually ruled on the issue so it may take a different case to get a more global ruling on this topic. There are a couple of cases that we've seen, primarily in British Columbia, that are still under appeal and which the Supreme Court of Canada might ultimately determine it should take out and we'll look for it in the coming years as to how those cases get decided … …  I'll go to the next slide now.

The final thing that I wanted to talk about briefly is another kind of interesting series of cases, or potential cases rather, that are about climate litigation brought against industry and private parties. So in recent years we're seeing more and more catastrophic natural disasters across Canada such as flooding, drought and having these events links, in one way or another by science, to climate change. So these events have taken an extensive humanitarian toll, but also a fiscal, and to date this fiscal toll has had to primarily been borne by the Provincial and Municipal Governments, who are left to rebuild public infrastructure after a major climate event. Additionally, public bodies are increasingly looking to invest to build climate resiliency in public infrastructure to withstand anticipated future effects of climate change. This is led by two campaigns by some public interest groups to effectively lobby Municipal Governments to band together, in an attempt to recover some of the costs associated with climate change from certain private industry participants, who the claimants say have profited from the industrial activity that's leading to climate change. On that note, in July of 2022, the Vancouver City Council actually passed a motion to set aside approximately $700,000.00, or roughly $1.00 per Vancouver resident, in order to fund the litigation against Canada's biggest producers of oil and gas. This is partially in response to the public interest campaigns that I was talking about previously. Now, this litigation hasn't actually been commenced and isn't likely to commence anytime soon, but it is interesting to note that this litigation will be the first type of its kind in Canada but it's actually modelled on suits launched by 20 different municipalities across the US in recent years and that highlights, we think, the potential of things to come in this area. With that said that's about it for me regarding climate change litigation and I'll turn things back to Maya.

Maya:              Thanks so much, Nick. Okay. Final word on ESG before we turn to questions. Next slide, please. So as you likely know ESG is really an increasing area of focus and we're seeing it at all types of our clients. Now this growth is really tied to increasing reach and influence of sustainable and social responsible investment. ESG standards really offer investors a standardized approach for evaluating a company's commitment to sustainable development. It refers to three key factors. These are used to evaluate companies and governments with respect to sustainability and ethical impact. So first, obviously is 'E' for environment, which covers things like water quality, climate change, land use, resource use and the list goes on and on. The second one is 'S' for social issues, which includes local community interests, human rights and consumer relations. The third is governance, which includes corporate management and leadership. In having these standards it enables investors to go beyond traditional financial analysis to include in their investment decision making, the impacts that a company's social activities, environmental performance and overall governance can have on its bottom line. So in Canada, as with other countries that have Indigenous populations, there's also a growing emphasis on Indigenous matters, with an increasing call to expand this ESG to ESG+I, for Indigenous, to capture Indigenous rights and interests. This is really based on the understanding that relations with, and support from, Indigenous Nations is really key to achieving long term sustainable development within Indigenous traditional territories. So even though there is this important role of recognizing and respecting rights of Indigenous peoples, that's not really captured so much in what we're seeing in Canadian companies so far. In a recent poll done by PWC this year, in 2022, they looked at Canadian ESG reporting and it reveals that only 30%25 of companies report policies to attract and retain Indigenous employees, managers and board directors, with an even smaller number, less than 20%25 of those top Canadian companies, currently disclosing an Indigenous Truth and Reconciliation action plan. So that kind of plan is really useful for supporting the activities of corporate entities and governments here in Canada operating within Indigenous territories, and if any of you have any questions or seeking for some advice on implementation of ESG+I, please let us know because we have very skilled people working on all those areas to help advance ESG.

                        With that we'll open up for questions. Does anybody here have any questions? If so, actually I see Q&A here, so let's jump to that. So Nathan Prince, how could this decision be placed to a company like LNG in Northeast BC, per se? So I'm not sure. Quinn, are you able to answer that? I'm not sure which decision is that.

Quinn:             If I'm reading Nathan's question right, he was actually wondering about the air quality emissions, and the $1.00 per resident decision. I think that was a decision that Nick was describing that Municipality of Vancouver took with regards to funding climate litigation. Nick does that make sense to you?

Nick:                Yeah. I think that does make sense. I think it's a really interesting question whether that type of municipal cost recovery action to recover the cost of public infrastructure building. I think there's a lot of parallels to the potential for Indigenous governments in seeking creative ways to recover the cost associate with climate change. I know that in such certain situations there's the cost of climate change to Indigenous Nations is almost unquantifiable in fiscal terms. But to the extent that it is, I think it's really an interesting idea, but it's certainly not something that we've seen in practice yet. But it's certainly very interesting.

Maya:              I think too there's a lot of emphasis on carbon credits and carbon offsets and we're seeing increasingly G2G agreements for sharing of that so perhaps that's an avenue as well. So thanks for those questions, Nathan. Just going back to Emma's talk and I do have just a question.  Emma, thanks for covering EPR and stewardship initiatives in Western Canada. What about what you're seeing across Canada? Similar actions or is the West really leading?

Emma:             Sure, thanks, Maya. The West is definitely leading the way. BC for sure is a leader in this space but there are developments across Canada kind of constantly happening. So in terms of what's happened in the past few months, Newfoundland is currently working to implement an EPR program from packaging and printed paper. That's been recently announced. New Brunswick is also looking to implement the same type of program sometime next year and Yukon has recently released a paper saying that they want to establish EPR by 2025 and there it will be packaging and printed paper, household hazardous waste and automotive wastes. So that's a bit of a new stuff in this space. Currently, I'll just note that there are programs in every Province and Territory, except Nunavut. So we have quite a broad array of programs.

Maya:              That's interesting. Thanks for that, Emma. That leads me to some questions to you, Mark. So in terms of the Federal Government's ban on single use plastics, do you see any exemptions or exceptions to that?

Mark:               Sure, Maya. I think what's interesting about it is how blunt the initiative is and, as I'd mentioned before, first showed up in the Canadian Environmental Protection Act, and now there's recently been some regulations registered this summer and enacted soon with deadlines coming as soon as December 20 on certain plastic manufactured items. The main focus of stakeholder consultations, with regards to exceptions came in with respect to the accessibility, so many people with disabilities and organizations representing people with disabilities and medical needs, put forward many concerns around a pure ban of plastic straws, and everybody here has seen some of the alternatives out on the market, paper straws and we're just not there yet with the technology and so one of the things, the only exception really to these six items is on the plastic straw front. So the bendable straws. So plastic straws that have a bend in them will be allowed in certain context. In hospitals and, for example, retailers of flexible straws in packages so they can sell them of 20 or more but they can't display them to the public. So what that is intending to do is people who need them and who are seeking them can go to retail shops and ask for them. But you won't see them readily available and advertised for the general public. There's some other nuanced interesting notes about that exception, but for the purposes of today, that is the main exemption that we've seen for these plastic manufactured items and the prohibition on them.

Maya:              Okay. Well thanks, Mark. Quinn, you know it's a very interesting decision, the Yahey and the Blueberry River decision. Then we Duncan's which is also a Treaty 8 Nation. What are your thoughts about how it can be applied outside of the Treaty 8 realm?

Quinn:             That's a great question and like we said there are Nations that are trying to extend, like Treaty 6 for example. It's a tricky question because Yahey didn't to some extent, or to a large extent, revolve around the interpretations of certain clauses in Treaty 8. For example, a clause referred to as the taking out clause that allows the Crown to quote/unquote "take up land" for public purposes from time to time and so the case revolved, again, to some extent around the interpretation of what that clause meant and whether there were limitations on that clause. Whether the clause was unlimited and the Crown could effectively take up all territory in a particular Treaty, in this case Treaty 8, or whether there was a reasonable limitation. For example, they could take up land to the extent that First Nations, the Treaty signatories basically on the First Nations side, could still exercise Treaty rights. Of course the Crown found that, yes, the taking up clause was internally limited by exactly that. Then there was also a bit of interpretation of the actual rights recognition clauses in the Treaty 8, so recognizing the rights of the First Nations signatories to hunt and to fish and to trap, for example. What did those grants of rights actually convey? Did it mean you have a right to hunt, fish, trap within a meter of your home? Or did it mean you had the right to hunt, trap and fish anywhere within Treaty 8? Which, as some on this webinar will know, covers a massive geographical area. So transplanting the decision or using the decisions in jurisdictions outside of BC or Alberta or in other Treaties, will just involve sort of figuring out the degree to which those types of clauses are similar between the Treaties, or different, and whether or not the interpretations of those clauses in Yahey can be used with respect to other Treaties. So to the extent that are similar clauses, and to the extent that the Yahey decision won't be overturned if BC doesn't appeal, but to the extent future decisions, for example the Duncan's decision, don't directly interfere with the approach in Yahey. I think it could be used in other Treaties and in other jurisdictions.

Maya:              Thanks, Quinn. And it will be interesting as you say. There are different jurisdictions in terms of Provinces so different courts. I notice we have one final question on Q&A that I'm going to take. So have you seen companies get penalized if they fail to register for their EPR obligations? Emma or Mark? Do either of you want to take that one?

Emma:             Sure. That's a good question. So there are in some regimes options for penalties, fines, things like that. Enforcement action is rarely published unless it's by prosecution so we don't see a ton of publicized sort of penalties. But generally given that these programs are all new there's essentially a start from a communication approach. So normally the agency will reach out to the company and try to help them get into compliance before going to penalties, and it's only really when companies fail to respond to these types of communications that enforcement is escalated.

Maya:              Wonderful. Okay, well, that brings us right up to the hour. Time flies but thank you everybody for joining us today, and again, if you have any questions please feel free to reach out to any of us. Have a wonderful day.