Project-specific Regulation of Resource Users

• Author: Elaine L. Hughes, Arlene J. Kwasniak, Alastair R. Lucas
• Pages: 171-188

171

CHAPTER 8

PROJECT-SPECIFIC

REGULATION OF

RESOURCE USERS

Alastair R Lucas

A. ADMINISTRATIVE LAW

In all provinces and areas of federal public lands, use of particular

resources is governed by resource-specif‌ic regulatory statutes. This

includes water resources, forests, and f‌isheries. Other uses of public

lands, such as grazing and other agriculture and recreational activities,

are regulated under provisions of relevant public lands statutes. Parks,

recreation, and other forms of preservation, as well as wildlife manage-

ment, typically have separate statutes. Mines and minerals, including

energy resources, are also the subject of specif‌ic statutory regimes.

All of these statutes address the roles and responsibilities of gov-

ernments as public land s and resources regulators. This is the province

of administrative law — the area of law that governs relations between

citizens and the state.1

Included are development approvals (access, exploitation, facilities,

and transportation works), conservation and management, monitoring,

and enforcement. Specif‌ic powers are delegated to administrative off‌i-

cials or to tribun als. Typically, the legal approach is a requirement for an

approval from an authorized public off‌icial or agency to underta ke public

resource exploitation activities. The authorized agency will be empow-

ered to attach terms and conditions to the approval concerning facilities,

technology, operations, monitoring, and reporting. Some administrative

1 David J Mullan , Administrative Law (Toronto: Irwin Law, 2001) at 3–5.

PUBLIC LANDS AND RESOURCES L AW IN CA NADA172

powers may be delegated by one government to another. An example

of such interdelegation is enforcement under the federal Fisheries Act,

which in a number of provinces is delegated to provincial regulatory

agencies and to provincial attorneys general. The limits of constitu-

tional delegation and interdelegation must be respected. Administra-

tive delegation must be explicit. It is not implied routinely. A delegation

must be supported by a statutory power, the language of which author-

izes the delegation in clear language or by necessary implication. Put

another way, there is an interpretive presumption against delegation —

the power must be exercised by the n amed person or agency personally,

unless the lang uage of the particular provision in the context of the Act

and its broader externa l context sugge st, in effect, that “another person

authorized by the named authority” can be read into it.

Though some traditional public lands dispositions such as leases

for agricultural uses amount to approval of the agricultural “project,”

other dispositions require specif‌ic project approvals for facilities, such

as mines, dams, and roads. In some cases, project approvals are built

into dispositions that link ongoing dispositions and plans and approv-

als for resource use. Forest resources are the best example with “ten-

ures” granted that contemplate susta inable yield harvesting th at is then

implemented through regulatory approval of plans and specif‌ic cutting

permits. Water rights may also contemplate approvals for storage or

withdrawal facilities. Other water uses that involve industrial plants

requiring water as an element of production processes may be subject

to a separate regulatory regime for energy, industrial, or water power

projects.2 For public resource projects of this kind, environmental ap-

provals for release of contaminants into water will also be required.

There are two levels of law to consider. The f‌irst is tribunal or

agency law — the procedural rules and decisions made by the public

lands off‌icials, tribunals, or agencies. Though decisions such as land

use approvals are typically case by case, the agencies do attempt to

establish policies to facilitate consistency and coherence in their deci-

sions. However, while agencies may consider relevant government poli-

cies in their decisions, they cannot fetter their discretion — simply

accept these policies as given.3 These policies may also be expressed

as rules and issued as regulations either by the agency itself or by the

authorized minister or cabinet. Examples include rules of practice and

2 Responsible Ene rgy Development Act, SA 2012, c R-17.3, ss 2(1)(b)(iii) and 67(1)

(b); Bill 18, Water Sustainability Act, 2nd Ses s, 40th Leg, British Columbi a, 2014,

cl 127(1)(k) (third reading 29 Apr il 2014).

3 Halfway River First Nation v British Colum bia (Ministry of Forests), [1997] BCJ No

1494 (SC) [Halfway River First Nation].