Project-specific Regulation of Resource Users

AuthorElaine L. Hughes, Arlene J. Kwasniak, Alastair R. Lucas
Pages171-188
171
C H A P T E R 8
PROJECT-SPECIFIC
REGULATION OF
RESOURCE USERS
Alastair R Lucas
A. ADMINISTRATIVE LAW
In all provinces and are as of federal public lands, use of par ticular
resources is governed by resource-sp ecif‌ic regulatory st atutes. This
includes water resources, forests, and f‌isher ies. Other uses of public
lands, such as gra zing and other agriculture and recreational activities,
are regulated under provisions of relevant public lands statutes. Parks,
recreation, and other forms of preser vation, as well as wildlife manage-
ment, typically have separate statutes. Mines and minerals, including
energy resources, are al so the subject of specif‌ic statutory regi mes.
All of these statutes add ress the roles and responsibilities of gov-
ernments as public land s and resources regulators. This is the province
of administrat ive law — the area of law that governs relations between
citizens and the state.1
Included are development approvals (access, exploitation, facilities,
and tra nspor tation work s), conservat ion and ma nagement, monitoring,
and enforcement. Specif‌ic powers are delegated to admini strative 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 authori zed agency will be empow-
ered to attach terms and conditions to the approval concerning facilities,
technology, operations, monitoring, and reporting. Some adm inistr ative
1 David J Mullan , Administrative Law (Toronto: Irwin Law, 2001) at 3–5.
PUBLIC LANDS A ND 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 provinci al regulatory
agencies and to provincial attorneys general. The limits of constitu-
tional delegation and interdelegation must be respected. Adm inistra-
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 necessar y 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 lease s
for agricultural use s amount to approval of the agricultural “project,”
other dispositions requi re specif‌ic project approvals for facilities, such
as mines, dam s, 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 t he 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 faci lities. Other water uses that involve industrial plants
requiring water as an element of production processes may be subject
to a separate regulatory reg ime for energy, industrial, or water power
project s.2 For public resource projects of this kind, env ironmental ap-
provals for release of contaminants into water will al so 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, t ribunals, or agencies. Though decisions such as land
use approvals are typically case by ca se, 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, t hey cannot fetter their discretion — simply
accept these policies as given.3 These policies may also be expre ssed
as rules and is sued as regulations eit her by the agency itself or by the
authorized mini ster 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].

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