Federal Court

Environmental Law

No public trust duty requiring Crown to take positive steps to protect environment

Motion by federal government for summary judgment dismissing action brought by public interest group. Public interest group was non-profit society dedicated to preserving large peat bog and raising public awareness of its ecological significance. At least part of bog had been purchased by municipalities and provincial government for conservation purposes. Municipalities and provincial government entered into conservation covenant requiring them to refrain from altering bog. Several years later, municipalities and provincial government finalized management plan for protecting at least 5,000 acres of bog. Provincial government intended to construct road adjacent to bog. Federal government agreed to contribute funding. Environmental assessment indicated no adverse environmental effects if certain mitigating measures were followed. Public interest group commenced action against federal government for order compelling it to protect bog. Motion granted; action dismissed. There were no contested facts that needed to be resolved in order to determine action had no chance of success. Central issue was whether construction of road adjacent to bog might impact ecology of bog. Related issue was whether federal government had duty to ensure construction of road did not impact ecological integrity of bog. Public interest group provided little evidence or authority in support of its claims. There was no evidence at all of federal government having legal obligation to prevent provincial government from constructing road in manner that might compromise bog’s ecological integrity. Public interest group simply asserted legal duties in abstract and made no effort to show how such duties could arise on facts of this case. Public interest group had not even provided factual underpinning showing what alleged dangers to bog were. Federal government did not have duty to protect bog’s ecological integrity. Federal government did not own bog. Conservation covenant and management plan did not impose any obligations on federal government. No Canadian courts had yet recognized public trust duty requiring Crown to take positive steps to protect environment. Circumstances did not give rise to any fiduciary or statutory duties.

Burns Bog Conservation Society v. Canada (Attorney General) (Aug. 29, 2012, F.C., Russell J., File No. T-1963-10) 221 A.C.W.S. (3d) 356.

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