Grassy Mountain and the Limits of Adaptive Management

 By Gavin Fitch, Q.C. and Cesar Agudelo


On June 17, 2021, the Joint Review Panel (“JRP”) of the Alberta Energy Regulator and the Impact Assessment Agency of Canada (“IAAC”) rejected a proposal by Benga Mining Ltd. (“Benga”) to develop a metallurgical coal mining project in the Crowsnest Pass region of southwestern Alberta. The JRP concluded the Grassy Mountain Coal Project (“Project”) would result in significant adverse environmental effects that would not be outweighed by the Project’s modest positive economic impacts.

A close review of the Decision shows that the JRP found that Benga put forward a highly optimistic Project that lacked a systemic approach to dealing with the significant uncertainties it posed. As a result, the JRP did not have confidence in Benga’s ability to mitigate the environmental impacts.

The Decision is significant for a number of reasons, in particular the extent to which a proponent can rely on promises to undertake adaptive management to ameliorate uncertainties about the effectiveness of mitigation.

The Project

The Project involved the construction, operation, and reclamation of a new, open-pit metallurgical coal mine in the Crowsnest Pass. By its own estimates, the Project would produce a maximum of 4.3 million tonnes of coking coal a year. Production would occur over 23 years, followed by four years of active reclamation and decades of passive site management to deal with selenium in surface water.

The assessment of the Project considered a wide variety of environmental issues, but the most prominent one was water quality. The high risk of discharge of selenium into local watercourses (Blairmore Creek and Gold Creek, both tributaries of Crowsnest River) and the potential impacts on the threatened Westslope Cutthroat Trout (“WSCT”), which is protected under the federal Species at Risk Act (“SARA”), were major issues at the hearing.

Significant Adverse Effects

The JRP concluded that the Project would result in significant adverse effects on surface water quality and the WSCT. The JRP also found that there would be significant adverse effects on the Whitebark Pine (another protected species under SARA), native vegetative species and biodiversity.

Benga claimed it would use proven mitigation methods to address these potential adverse effects on water. Further, in the event these methods did not prove successful, Benga would rely on adaptive management to deal with it.

With regard to surface water specifically, Benga placed significant reliance on a single technology: the saturated backfill zone (“SBZ”). A SBZ is water saturated waste rock, which is kept in a submerged state and fed with a carbon-based feed to create a chemical reaction that is supposed to attenuate selenium in the water. This method is currently being used in B.C. by Teck Resources (“Teck”) at its Elk Valley mines. However, the JRP found that it had not been demonstrated to be effective at scale (i.e., on an actual operating mine as opposed to demonstration sites). Further, the JRP found that although Benga stated it would have several years to adaptively manage if the SBZ did not perform as expected and that Benga failed to provide sufficient detail about what it would or might do, leaving the panel with little confidence.

The Past

The hearing of the Project occurred against the backdrop of the long history of coal mining in British Columbia’s Elk Valley. The JRP wrote at paragraph 848, “The Elk Valley serves as a cautionary example regarding what could occur when sources of selenium and calcite formation are not controlled. It affirms the importance of preventing problems before they arise, rather than relying on adaptive management after contamination problems have taken hold.”

The precautionary principle featured prominently in the Decision. The JRP interpreted the precautionary principle to mean that where there are threats of serious irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation. The precautionary principle at the Grassy Mountain hearing took on increased stature because the “threat of serious irreversible damage” was so readily apparent in the Elk Valley, a short distance from the site of the Project.

Dealing with Uncertainty and Adaptive Management

The JRP acknowledged that every project will have uncertainties. However, the public interest consideration required the JRP to assess the environmental effects and the mitigation methods proposed to address those uncertainties.

In the case of the Project, the JRP found that Benga presented optimistic goals, assumptions and measurements were not conservative; and relied on a single, unproven mitigation technology, the SBZ. This last point was particularly important. At paragraph 1148, the JRP wrote “The strategy of ‘putting all one’s eggs in one basket,’ when the basket …is unproven, does not give us confidence that significant adverse environmental impacts can be avoided even if additional mitigation measures were later put in place.”

Benga’s response to concerns over the reliance on the SBZ and other uncertainties was to state that it would apply adaptive management techniques. However, the JRP stated that “a commitment to adaptive management does not eliminate the need to provide sufficient information on the environmental effects of a project.”

The JRP held that proponents must provide sufficient detail to demonstrate that project plans and proposed mitigation measures are technically and economically feasible, and that these techniques will effectively manage risk. Adaptive management, while not fail-safe, must have systematic and deliberate planning and rigorous implementation. As noted at paragraph 169, adaptive management required more than promising to implement a trial-and-error methodology.

Economic Benefits Insufficient

Proponents can often depend on the economic benefits of their projects to balance out any adverse effects. Not this time.

Benga prepared a Socio-economic Impact Assessment (“SEIA”), which is standard practice particularly in oil sands projects. Several interveners criticized this approach, arguing that a true cost-benefit analysis (“CBA”) should have been provided. The JRP held that a SEIA, while acceptable and important in assessing the economic impacts of a proposal, lacked an assessment of the benefits of the Project. The JRP recommended that the federal and provincial governments should require the use of both economic impact assessments and cost-benefit analysis for future EIAs or federal impact assessments to allow decision makers to make more informed decisions.

Among other things, Benga claimed that the Project would create approximately 400 full-time jobs and generate $77 million annually in royalties and income taxes, and hundreds of thousands annually in municipal taxes. However, the JRP found the Benga’s estimate of its royalty and tax payments was overstated. It concluded that the alleged economic benefits were modest and paled in comparison to the potential costs, both economic and environmental, of the Project.

In the result, the JRP found that even if the economic impacts were as great as predicted, the severity and the character of the environmental impact were such that they would have to deny the application anyway.

Take Away

The Project was rejected by the JRP because it determined that Benga presented an overly optimistic goal for selenium capture based on metrics that were not conservative. The JRP found that Benga’s confidence did not hold up to scrutiny and was not supported by the real-world experience of the Elk Valley, which showed that without a conservative, intentional, and well-planned approach, Alberta’s southern river basins could suffer the same fate.

Further, the JRP found that Benga failed to present a coherent adaptive management plan. Rather than a deliberate plan to deal with uncertainty, the JRP concluded that Benga’s promises to adaptively manage amounted to deferring important mitigation plans to an undefined point in the future.

The JRP essentially denied the Project as it found that Benga placed “all its eggs in one basket” with regard to selenium management, had an ill-defined adaptive management plan, and would provide only modest economic benefits. Therefore, the JRP believed denial was consistent with the precautionary principle and in the public interest.

For further information regarding the post above or any other environmental, energy, or regulatory matter, please contact any member of our Energy, Environmental, and Regulatory Practice Group.

Bill 48 and the Land and Property Rights Tribunal

 by Michael Barbero

In a prior post, we reported on Bill 48, the Red Tape Reduction Implementation Act, 2020. As the name suggests, Bill 48 is part of the provincial government’s agenda to reduce “red tape” and speed up approval times while creating jurisdictional harmonization and improving service delivery. The majority of Bill 48’s most impactful changes took effect as of June 2, 2021. Many of these significant changes have been canvassed in our prior post. Here we focus on the creation of the Land and Property Rights Tribunal (“LPRT”) and what this change means for Albertans. 

Land and Property Rights Tribunal

The Land and Property Rights Tribunal Act, SA 2020, c L-2.3, creates a new single body combining four independent quasi-judicial tribunals adjudicating on various matters into one singular body. The four agencies now subsumed into the LPRT are:

  • The Municipal Government Board – which makes decisions about land planning and assessment matters, subdivision appeals, inter municipal disputes and annexation recommendations;

  • The New Home Buyer Protection Board – hears appeals of the Registrar’s decision to refuse, suspend or impose conditions on residential builder licenses as well as appeals of compliance orders and administrative penalties under the governing legislation;

  • The Land Compensation Board – conducts dispute resolution proceedings and hearings to determine compensation for landowners and tenants impacted by the expropriation of land; and

  • The Surface Rights Board – assists land owners, occupants and operators to resolve surface access and compensation disputes.

This consolidation is consistent with steps taken in 2017 to administratively amalgamate these bodies, including such actions as the appointment of a common Chair, combined location and administrative staff. Under the new legislation, the jurisdiction of the various boards is also now consolidated into a single legal entity.

Jurisdiction of the LPRT

Section 5 of the Land and Property Rights Tribunal Act sets out the jurisdiction of the LPRT. Specifically, Section 5 outlines the LPRT’s jurisdiction to hold hearings, proceedings, inquiries, complaints and appeals and determine disputes with respect to:

  • Expropriations;

  • Part 12 of the MGA (annexations, complaints about assessments, intermunicipal disputes, subdivision appeals, etc.);

  • Part 5 of the New Home Buyer Protection Act;

  • Any matters under the Surface Rights Act; and

  • Any other mattes for which jurisdiction is granted to the Tribunal.

Tribunal Members and Procedure

Existing members from the various boards listed above will be transitioned to and become members of the LPRT. Further, a common Rules of Procedure will be implemented. Taken together, these steps will allow the newly created LPRT to “redeploy” board members as needed to address backlogs. In theory, this approach should allow for quicker resolution of claims.

Pending applications or appeals before the various boards will not be affected by these changes; only new applications will be captured under the new process.

Review of Tribunal Decisions

The Land and Property Rights Tribunal Act provides an internal review process for any decision made by the LPRT (see Section 16). Any review is to be a hearing de novo; new evidence and issues not raised in the hearing may be considered during the review. The Act also sets out the standard of review for applicable decisions of the LPRT in the context of judicial review proceedings. Section 19 states the standard shall be that of reasonableness. Neither an internal appeal nor judicial review serves as a stay of any decision made by the LPRT (see Section 18).


Given that no applications have been adjudicated by the new LPRT, it remains an open question as to the full impact of these changes on Albertans and their counsel who have historically appeared before these previously discrete boards. It is anticipated that the LPRT will issue Rules of Procedure shortly. These will provide greater certainty as to how exactly the LPRT will conduct its hearings. One thing that does seem clear is the emphasis on increased efficiency and reduced time. Parties and counsel should expect shorter timelines and quicker hearings as a result.

Should you have any questions regarding the information outlined in the post above or any other questions on this topic, please feel free to contact Michael Barbero or any other member of our Energy, Environment, and Regulatory team.

Announcement of New Policies and Recent Decisions by the Mackenzie Valley Land and Water Board

 by Stuart Chambers & Jeremy Dixon

The Mackenzie Valley Land and Water Board (the “Board”) recently announced the release of several new policy documents that provide new rules for small projects in the Northwest Territories.[1] These new rules are designed to ease the burden of the Board’s regulatory system on smaller operators and projects. These new sets of rules are:

  • the Method for Determining Available Winter Water Use Capacity for Small-Scale Projects;
  • the Standards for Reporting Water Quality Information in the NWT; and
  • the new Closure and Reclamation Tool (and the supporting policy manual).

At the same time, the Board announced the release of a decision on a request by the Northwest Territories and Nunavut Chamber of Mines (“Chamber”) to extend all existing land use permits (“LUP”s) that the Chamber had previously issued for two years to help industry through the COVID-19 pandemic.

The Board is organized and operates under the federal Mackenzie Valley Resource Management Act (“MVRMA)”.[2] The MVRMA governs the use of land throughout most of the Northwest Territories.[3] In southern Canada, the Provinces have full regulatory authority over lands within their boundaries.[4] In 2014, the Government of the Northwest Territories (“GNWT”) was given or “devolved” significant authority over its own lands and other natural resources to make it more like a province,[5] but the MVRMA and the authority over land it represents remains in the hands of the federal government. As a result, regulatory authority for land use in the Territory remains split between the two governments. The MVRMA system was created in significant part not just to update the existing regulatory regimes in the Territory when it was implemented in 1998, but as part of the resolution of several major Indigenous land claims in the Territory. The MVRMA creates the Board and three “regional panels” within it, each of which represents a region in the Territory with a settled land claim and provides the local land claimant with an ability to appoint some of the local regional panel’s members.[6] The Board currently makes decisions on projects in parts of the Northwest Territories without settled land claims.[7]

The use of water is formally regulated by the GNWT under its Waters Act.[8] However, the GNWT has delegated the power to make water licenses to the MVRMA board system, so functionally this system of federal boards also regulates the use of water in most of the Territory.[9]

Method for Determining Available Winter Water Use Capacity for Small-Scale Projects (“Method”)[10]

Before releasing this Method, the Board used a method developed by the federal Department of Fisheries and Oceans (“DFO”) to determine how much water an operator could reasonably extract from a frozen body of water for all projects. The risk of using certain bodies of water, particularly in the North where long and hard winters can leave very little water unfrozen, is that taking too much water from one can kill the fish living in what remains of the liquid water during the winter.[11]

However, DFO’s standard requires technically complicated work that imposes a significant burden on operators. The Board has created the Method to provide smaller operators with a simple rule that provides wildlife with the protection it needs and DFO wants, but without imposing an excessive burden on smaller operators.

To determine how much water can reasonably be taken from a given frozen body of water, the operator only needs to multiply the surface area of the body of water (in square meters) by 0.1 meters. Operators can determine the surface area of the body of water using simple, easily available mapping tools, including Google Earth.[12]

There are limits to the application of this Method. It may only be used on bodies of water that can be shown to have a minimum under-ice depth of 1.5 meters and a minimum total depth of 3 meters. Any bodies of water smaller than this “should not” be proposed as water sources unless the proposed water withdrawal from it is less than 100 cubic meters per day or it can be demonstrated that the body of water does not have fish in it. However, as the document uses the word “should”, rather than “may” or “must”, it would seem that the Board is open to operators using such small bodies of water, presumably in circumstances where other options for the operator are limited or unavailable.[13]

Whether an operator qualifies to use the Method is assessed on a case-by-case basis by the Board, so there are no hard-and-fast rules for operators to assess whether they can rely on it. The Board did state in the method that it will be typically applied to operators needing a Type B water license (usually, a water license for a project that uses at least 100 cubic meters of water per day, but less than 300)[14] for early-stage exploration or small-scale projects.[15]

Standards for Reporting Water Quality Information in the NWT (“Standards”)[16]

Developed in association with the GNWT (as it regulates most water in the Territory), this document provides a set of requirements for reporting water quality data to the Board. The GNWT would like to collect and compile all of the data about water quality in the North that operators are creating through their work, to form a public record of this information. However, different operators have collected, catalogued, and analyzed their data in different manners, and this makes it difficult to compile, compare, and assess accurately. Operators will now need to follow these Standards whenever they are required to provide the Board (or one of its regional panels) with water quality data.[17]

This document provides two tables that each list different kinds of data an operator will need to report for each water sample they collect. The first table is for “metadata”, which here means basic information about the program within which the sample was collected (e.g., an operator’s on-site water monitoring program) and how the sample was collected.[18] The second table is for information about the sample itself, such as where it was collected, how it was analyzed, and what the results of the analysis were.[19]

Closure and Reclamation Tool[20]

Closure and reclamation requirements are one of the most financially onerous parts of executing a project in the North. They can be technically complicated and are used to calculate the security deposit an operator will need to pay under their LUP before starting their project.[21] The Board will soon replace its old, out-of-date tool for assessing these issues.

The new tool is a spreadsheet that runs an LUP applicant through a series of questions focused on how the site is accessed (e.g. by road, by a winter road, or by air), the amount of space the project will occupy, whether heavy machinery will be used to modify it, the amount of fuel that will be stored on site, buildings and construction that will occur on site, and whether post-closure monitoring of some kind will be needed. It also accounts for other securities held against the same project under other regulatory systems.

Decision on LUP Extensions[22]

LUPs issued under the MVRMA have an initial life of five years and can be “extended” once for an additional two years. The Board has maintained this position for over 20 years, but the regulation on which this position is based is ambiguous. It can also be read to allow for repeated two-year extensions, effectively allowing an LUP to be extended indefinitely.[23]

This is important for operators because the process of “renewing” an LUP after its lifespan has ended is effectively the same as applying for a new permit altogether. “Extensions” have shorter, more limited procedural requirements and shorter windows during which potentially affected Indigenous organizations and stakeholders can be engaged with or consulted. As a result, for an operator that holds an LUP, having access to the “extension” process can save time and money.[24]

Recently, the Board was called upon by the Chamber to offer automatic “extensions” of all LUPs that are currently in force to ease the burden of the COVID-19 pandemic. The Chamber asked the Board to reconsider its interpretation of the “extension” regulation to allow for a second extension of any LUPs that would require it to be granted the blanket extension of all LUPs the Chamber had asked for.[25]

The Board declined to change its position or to grant the blanket extensions of all LUPs in the Territory. The Board cited several reasons for maintaining its position despite the arguments of the Chamber. First, the Board held that because a reading of the language of the regulation in question in its “grammatical and ordinary sense” led to two possible interpretations, the provision needed to be read in its “statutory context”. The Board interpreted the overall “statutory context” in which the regulation exists as one in favor of greater, rather than lesser, regulatory oversight and intervention to protect the environment. The Board also held that related statutes that govern similar permits in the Northwest Territories have the same permit lives, including one that was recently revised to make it more consistent with the Board’s interpretation of the regulation in question.[26]

Interestingly, the Board also discussed its decision in light of the Supreme Court of Canada’s recent decision in the Vavilov[27] case. While courts are bound to follow the rules laid down in past decisions, administrative tribunals were not. Vavilov has significantly changed this – administrative tribunals are now obliged to follow their “longstanding practices or established internal authorit[ies]” unless they can justify their departure from these practices.[28] This offers both challenges and opportunities to operators who regularly require authorizations, like LUPs, from administrative tribunals like the Board. For existing practices that do not favor operators, it will be more difficult to persuade tribunals to depart from such practices in any one situation. However, for existing practices that favor operators, operators will have leverage to compel these tribunals to continue to follow them.


Natural resources regulation in the North remains in a state of continual adjustment as settled land claimants, the GNWT, and the federal government work together to iron out the creases in their shared system. Changes and policy updates such as these can be expected to continue for the foreseeable future, particularly as those regions in the Territory without settled land claims work towards resolving them.

For more information on these issues and how they may affect you or your business, please contact Jeremy Dixon in Yellowknife, Stuart Chambers in Edmonton or another member of our Energy, Environment and Regulatory Practice Group.

[2] Mackenzie Valley Resources Management Act, SC 1998, c 25, s. 99(1).

[3] MVRMA at s. 2, definition of “Mackenzie Valley”, which includes essentially all of the Northwest Territories outside the Inuvialuit Settlement Region, and s. 6, which applies the Act to the entire Mackenzie Valley.

[4] The Constitution Act, 1867 (UK), 30 & 31 Victoria, c 3, ss. 92(5), (13) and 92A.

[5] Northwest Territories Devolution Act, SC 2014, c 2.

[6] MVRMA ss. 54-57.2.

[7] Cf. MVRMA at s. 102.

[8] Waters Act, SNWT 2014, c 18.

[9] Compare ibid. at s. 1, definition of “Board” to include the MVRMA boards, with s. 26 granting power to issue licenses to “Board”.

[11] Cf. Method at p. 2.

[12] Ibid. at 3.

[13] Ibid. at 2.

[14] Waters Regulations, R-019-2014, at Schedule D, setting rates for “industrial” projects.

[15] Ibid. at 3.

[17] Ibid. at 2.

[18] Ibid. at 4.

[19] Ibid. at 5.

[21] See e.g., ibid. at Question 18.

[23] Decision at pp. 1-2. The regulation in question is Mackenzie Valley Land Use Regulations, SOR/98-429, s. 26(6).

[24] Ibid. at 6.

[25] Ibid. at 2.

[26] Ibid. at 5-8.

[27] Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (CanLII).

[28] Ibid. at 131.

Spot the Trend: Increasing Environmental Penalties in Canada

by Sean Parker and Kimberly Wasylenchuk[1]

On March 26, 2021, Teck Coal Limited (“Teck Coal”) entered a guilty plea on two counts of unlawfully depositing a deleterious substance into water frequented by fish, contrary to s. 36(3) of the Fisheries Act. Teck Coal was ordered to pay a total of $60 million in fines and monetary court orders arising from the infractions under the Fisheries Act. In addition to the monetary penalty, Teck Coal was ordered to comply with direction given under the Fisheries Act requiring pollution reduction measures.[2] The charges resulted from an investigation by Environment and Climate Change Canada (“ECCC”), which concluded that Teck Coal’s operations were depositing deleterious coal mine waste rock leachate (consisting of selenium and calcite) into the upper Fording River in southeastern British Columbia.[3]

This article examines the trend of increasing penalties in Canada resulting from prosecution of environmental offenses.

Shift in Policy?

The penalty to Teck Coal is the highest ever imposed by a Canadian court for violation of the Fisheries Act and the majority of the fine, $58 million, will go to the Government of Canada’s Environmental Damage Fund. By imposing this large fine, the Government of Canada appears to be taking an aggressive stance in relation to environmentally damaging conduct. Does this indicate a shift in policy on a broader scale?

Trend of Increasing Environmental Penalties in Canada

There appears to be a trend of increasing penalties for environmental offences in Canada as environmental issues continue to be at the forefront of public and political discussion. Governments at both the Federal and Provincial levels continue to seek stiff penalties for individuals and corporations that break the law.

The Canadian Environmental Protection Act 1999 (“CEPA, 1999”) came into force in March 2000 with the aim to prevent pollution and protect the environment and human health. Building on the legislative framework introduced under CEPA, 1999, the Environmental Enforcement Act (“EEA”) was introduced in stages:

  • Stage 1 in December 2010 wherein the bulk of the EEA came into force;
  • Stage 2 in June 2012 wherein amendments related to the fine regime and sentencing provision of CEPA, 1999 came into force with an accompanying regulation to allow enforcement with increased penalty provisions;
  • Stage 3A in June 2017 wherein the Environmental Violations Administrative Monetary Penalties Regulations (“EVAMP”) came into force, enabling the use of administrative monetary penalties for certain violations of legislation administered by the ECCC;
  • Stage 3B in July 2017 wherein all remaining amendments to the Canada Wildlife Act, Migratory Birds Convention Act, 1994 and Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act came into force; and
  • Stage 4 in December 2020 commenced the beginning of the mandatory review of fine and sentencing provisions of the Acts enforced by ECCC.

The EEA established a stiffer penalty regime to give the Federal Government a stronger tool to use when pursuing environmental offenders and sanctioning harmful conduct. The EEA strengthened and harmonized enforcement regimes under nine of Canada’s Federal environmental statues. ECCC is responsible for the administration and enforcement of the pollution prevention provisions of the Fisheries Act and the enforcement provisions in other legislation under the EEA.

In many cases, the Federal officers (as members of ECCC and certain other agencies) will coordinate their investigations and efforts with the respective Provincial environmental authorities or ministry. In Alberta, the Environmental Protection Enhancement Act (“EPEA”) operates to promote the protection and wise used of the environment. Fines and penalties can be issued when an individual or corporation contravenes the provisions of the Act.

Recent Trend of Environmental Fines in Canada

Our review indicates that since 2014 there has been an increasing number of fines over $1 million issued in Canada. There are examples of large fines prior to this time, however, amendments to the Fisheries Act in 2012 and other factors appear to have resulted in precedents for larger penalties in recent years. In our view, one of these other factors is the “ratcheting-up” effect of increasing fines. Essentially, as fines increase, the baseline for assessing a penalty also increases. The effect is that the baseline continues to rise and accordingly so will the penalties ultimately issued. Inflation also contributes to the “ratcheting-up” effect as there is often a perception that penalties should increase commensurate with the purchasing power of the dollar. As an illustrative example, when looking at precedents in consideration of an appropriate sentence, a penalty of $200,000 issued for an offence 10 years ago would be viewed in the context of how much that amount was worth at the time, and a penalty of $250,000 may be viewed as comparable for a similar offence today.

Each matter is unique and will turn on the specific facts, however, in our view there is little doubt that environmental penalties are increasing in Canada. The following discussion looks at a number of the more significant penalties in recent years.


Bloom Lake:

After pleading guilty to 45 charges under the Fisheries Act, Bloom Lake General Partner Limited (“Bloom Lake”) was ordered to pay $7.5 million in relation to several incidents including the breach of a tailings pond dam in Quebec. Infractions at the Bloom Lake mining site included releases of non-compliant effluent and ferric sulfate into fish bearing water. A likely aggravating factor taken into account for the stiffness of the penalty was Bloom Lakes’ failure to follow direction given by the Inspector.[4]

For a time, the Bloom Lake penalty was the largest fine ever imposed in Canada for environmental infractions. Over 200,000 cubic meters of deleterious substances was released following the breach of the Triangle Tailings Pond dam and the value of the fine likely reflected the severity level of the release.


Gwaii Wood Products:

In January 2016, three companies were fined a total of $2.2 million and other penalties for offences committed in October 2010. The provisions of the Fisheries Act in force in 2010 applied in this case as the new legislation came into force after the offences were committed but before the case made its way to court.

The three corporate defendants were involved in logging operations in British Columbia. Each conviction arose from harmful alteration, destruction, or disruption of fish vegetation near tributaries which fed into the Kumdis Bay Estuary, Mallard Creek and Mallard Creek itself, all in violation of Section 35(1) of the Fisheries Act.[5]

Teck Metals:

In March 2016, Teck Metals Ltd., (“Teck Metals”) pleaded guilty to three offences under the Fisheries Act and was ordered to pay a $3 million penalty for numerous deleterious effluent discharges into the Columbia River in British Columbia.

Teck Metals discharged substances including effluent which contained copper, cadmium, chlorine or pH and ammonia that were all present in high enough concentrations to be harmful to fish. Over 125 million liters of effluent was released between November 2013 and February 2015.[6]


Canadian National Railway:

Canadian National Railway Company (“CN”) pleaded guilty and was fined $2.5 million in relation environmental infractions that occurred in April 2015. The investigation determined that the oil-water separator and fuel storage system at Bissell Yard in Alberta was not compliant with the applicable Regulations, which caused about 90 liters of diesel to be released to the storm sewer. CN attracted the largest of its fines for deposit of a deleterious substance to fish-bearing water, in violation of the Fisheries Act, resulting in a $2 million penalty.

In addition to the Federal penalties, CN was fined $125,000.00 under Alberta’s EPEA for release of a substance that may cause a significant adverse effect and failure reasonably remediate after a release to the environment.[7]

Prairie Mines:

In June 2017, Prairie Mines & Royalty ULC (“Prairie Mines”) pleaded guilty to two offences contrary to the Fisheries Act and was sentenced to pay a monetary penalty of $3.5 million. In addition to the fines under the Federal legislation, Prairie Mines pleaded guilty to one count under Alberta’s EPEA and was given further penalties.

These charges arose from a spill at the Obed Mountain Mine. A dike that was holding back waste water at the mine failed, resulting in over 670 million liters of contaminated water and sediment spilling into the Apetowun Creek and Plante Creek which impacted the Athabasca River.[8]


On October 3, 2017, Sherritt International Corporation (“Sherritt”) pleaded guilty to three counts under the Fisheries Act in relation to the Coal Valley Mine spill which occurred near Edson, Alberta. In August 2012, ECCC officers visited the mine and determined that effluent deposited from a wet water pond was deleterious to fish. A direction was issued under the Fisheries Act compelling Sherritt to stop the deposit. However, following a subsequent investigation, it was revealed there were two previous effluent releases from the same waste water ponds into the Erith River (part of the Athabasca River watershed) in July 2011. Sherritt was fined $1.05 million for the violations.[9]

Teck Resources:

In October 2017, Teck Resources Ltd., (“Teck Resources”) was fined $1.425 million for three violations of the Fisheries Act. The charges stemmed from an investigation in 2014 which concluded that Teck Resources was releasing harmful effluent into Line Creek, a British Columbia waterway with a high fisheries value. Several dead fish were spotted in ponds near Teck Resources’ Line Creek coal operation near Sparwood in southeastern British Columbia.[10]


Irving Pulp:

On November 5, 2018, Irving Pulp & Paper Limited (“Irving Pulp”) was ordered to pay a $3.5 million penalty following pleading guilty to three offences under the Fisheries Act. In addition to the fine, Irving was given direction pursuant to the Fisheries Act to implement appropriate planning to work toward building a new effluent treatment system.[11]

The charges arose from several infractions that occurred between June 2014 and August 2016 wherein improperly treated and deleterious effluent was released into the St. John’s River in New Brunswick.



Syncrude Canada Ltd., (“Syncrude”) was ordered to pay a fine of $1.775 million in relation to one count of violating the Migratory Birds Convention Act, 1994. Syncrude was charged with depositing or permitting the deposit of a substance that is harmful to migratory birds as 31 great blue herons were found deceased in an abandoned sump near Fort McMurray, Alberta. Additionally, Syncrude pleaded guilty to one count under Alberta’s EPEA and was ordered to pay an additional fine of $975,000.[12]


Kirby Offshore Marine Operating LLC (“Kirby”) plead guilty to three charges of violating Federal legislation in relation to a spill from the ‘Nathan E. Stewart’ vessel into the Seaforth Channel near Bella Bella, British Columbia on October 13, 2016. The tugboat ran aground, resulting in the release of approximately 107,552 liters of diesel fuel and 2,240 liters of lubricants into the water. Both substances are deleterious to fish and migratory birds. Kirby Offshore Marine Operating LLC owned the Nathan E. Stewart.[13]

Kirby was given the following fines:

  • $2.7 million for the offence of depositing a deleterious substance into water frequented by fish, in violation of the Fisheries Act;
  • $200,000 for the offence of depositing a substance harmful to migratory birds, in violation of the Migratory Birds Convention Act, 1994; and
  • $5,000 for the offence of failing to comply with the pilotage requirements under the Pilotage Act.[14]

Husky Oil:

In June 2019, Husky Oil Operations Limited (“Husky Oil”) was ordered to pay $2.7 million in fines for one count of violating the Fisheries Act and one count of violating the Migratory Birds Convention Act, 1994. The charges arose from an incident in July 2016 where 225,000 liters of heavy crude oil leaked from a Husky Oil pipeline, near Lloydminster, on the Saskatchewan side of the border. Of the total leakage, 90,000 liters entered the North Saskatchewan River.[15]

Husky Oil also pleaded guilty to one violation under the Saskatchewan Provincial environmental legislation for this incident.


Volkswagen Aktiengesellschaft

In January 2020, Volkswagen Aktiengesellschaft (“Volkswagen”) was ordered by the Ontario Court of Justice to pay a $196.5 million fine after pleading guilty to 60 charges for offences under CEPA, 1999; 58 counts for unlawfully importing vehicles into Canada that did not conform to prescribed vehicle emissions standards, and 2 counts for providing misleading information. The fine was directed to the Government of Canada’s Environmental Damages Fund. This was by far the largest environmental fine in Canadian history; however, it is somewhat on an outlier given the highly unique facts. This matter was part of Volkswagen’s global emissions cheating scandal where they faced hefty penalties in several countries.[16]


On February 18, 2020, Drever Agencies Inc., (“Drever”) pleaded guilty to an offence under the Fisheries Act in relation to a charge for depositing a deleterious substance into water frequented by fish and was fined $1.25 million.

The ECCC responded to a solvent spill located on commercial property in Wetaskiwin, Alberta. The investigation determined that approximately 1800 liters of Petrosol solvent leaked from a storage tank owned by Drever and entered a nearby creek. Through laboratory analysis, it was confirmed that the solvent was deleterious and harmful to fish.[17]



In March 2021, Gibson Energy ULC and GEP ULC (collectively “Gibson”) was fined $1.5 million for two counts of violating the Fisheries Act. The charges arose from an incident that occurred in March 2014 when employees located a leak in the fire suppression system. From the leak site, chlorinated water escaped the system and entered an unnamed creek and the North Saskatchewan River. The chlorinated water was of a sufficient level to be harmful to fish in the river.[18]

What to Expect in the Future

Based on the trend in the recent years, there is little doubt that governments will seek, and courts will impose significant fines for contraventions of various Federal and Provincial environmental legislation. Powerful sentencing provisions, particularly in Federal legislation, give governments a strong tool to make offenders pay. The prevalence of stiff penalties and “ratcheting-up” effect often leads to fines that sting, which can no longer be viewed as a cost of doing business.

For more information on these issues and how they may affect you or your business, please contact Sean Parker in Edmonton, Michael Barbero in Calgary or another member of our Energy, Environment and Regulatory Practice Group.

[1] With thanks to Dolores Noga.

[5] R. v. Gwaii Wood Products Ltd., et al, 2017 BCPC 6