At OsgoodePD, we frequently talk about our ‘top-notch’ and ‘world class’ instructors. But rather than just talk about them, we’ll introduce you to members of the Osgoode Professional LLM faculty who direct, develop and lead our Specialization programs as part of this blog series.
We spoke with Rodney Northey, an adjunct faculty member of the Professional LLM in Energy and Infrastructure Law at OsgoodePD, teaching the course on Environmental Protection. Rodney is head of Gowling WLG’s Practice Group for Environmental Law.
Adjunct Faculty Member of Osgoode’s LLM in Energy and Infrastructure Law
Please tell us about a few of the projects you have been most excited about in your 30-year career.
In the early 1990s, when I was a junior lawyer in the Environmental Department of McCarthy Tétrault, I had the opportunity to commence a judicial review on behalf of ferry workers and fishers opposed to the construction of a fixed link bridge between PEI and New Brunswick. Ultimately, led by McCarthy’s litigation department, our clients won round one resulting in the rejection of the federal environmental assessment for the bridge and triggering the need for a constitutional amendment to authorize the end of the ferry service. But the governments were determined to move forward, so after further efforts, they obtained the required approvals.
In the mid-2000s, when I was co-founder of a boutique environmental law firm, Birchall Northey, I was retained by the Region of Waterloo to assist it with provincial approval for terms of reference of a proposed light rail transit (LRT) through the heart of the Region. There had been nothing like this under EA before and we came up with many innovative approaches to this environmental assessment. Ultimately, several further steps were required to obtain environmental assessment approval and the project is now operational.
In the late 2000s, following the folding of Birchall Northey into Fogler Rubinoff, I was retained by the Town of Oakville to provide advice on the proposed TransCanada gas plant at the Ford plant site. With my assistance, in 2010, the Town developed an innovative health protection air quality by-law to regulate emissions from the plant that were not subject to any binding health-based provincial or federal standards. Ultimately, the Province cancelled the contract for this facility, but Oakville has implemented this by-law to regulate major emissions from several major facilities in the Town.
Guest speakers of Friends of the Greenbelt Award 2015 alongside former Ontario Premier Dalton McGuinty. L-R: Foundation Chair and Gowling Lafleur Henderson LLP Partner Rod Northey; Broadbent Institute Executive Director Rick Smith; Former Ontario Premier Dalton McGuinty; Foundation CEO Burkhard Mausberg; and Former Mayor of Mississauga Hazel McCallion. Image via Greenbelt Foundation
During this time, I was also counsel for the City of Burlington in a major 100-day hearing involving multiple objectors, including the City, over a proposed quarry expansion in the north part of the City within the Niagara Escarpment biosphere. An Ontario tribunal – the Joint Board – rejected this proposal in 2012 on the basis of unacceptable impacts on the Jefferson Salamander, an endangered species.
Following the passage of Ontario’s ground-breaking 2009 Green Energy reforms, Suncor retained me to assist with obtaining the first-ever wind farm approval under this reform and the first appeal hearing under this reform, which went Suncor’s way in 2011 and led to construction and operation of the 20MW Kent Breeze facility.
Later on, under the same legislation, in 2013, I was brought into the Environmental Practice Group at Gowlings and provided regulatory advice to Henvey Inlet First Nation for a proposed 300MW wind farm on its reserve lands on the shore of Georgian Bay. This work required the development of novel First Nation environmental assessment and protection laws and approvals. After many years and many challenges, including major challenges involving endangered species, this facility commenced operation in 2019.
Pattern Energy & Henvey Inlet First Nation break ground @ 300MW Ontario wind farm – Onshore Wind | reNEWS https://t.co/hkpv74UQeK
— ECO Strategy (@ecostrategy) January 7, 2018
These exciting examples of success keep me going after many losses on environmental disputes in all manner of courts and tribunals.
You’ve done extensive work in environmental assessment and have been on government-appointed expert advisory panels. Can you share your thoughts on what to expect in this area in the next 5 years?
The area is under intense scrutiny, federally and in Ontario, because major projects – public and private – have been mired in lengthy, expensive approval processes and litigation. Canada reformed its main assessment law last year with passage of the Impact Assessment Act, following a lengthy consultation and legislative process – including the 2016-2017 four-person panel that included me.
Image with caption: “Minister of Environment and Climate Change, Catherine McKenna, meets with members of the Expert Panel who will be reviewing environmental assessment processes. (CNW Group/Canadian Environmental Assessment Agency)
In early July 2020, Ontario announced a re-write of its environmental assessment law – the first major re-write since its enactment in 1975. Alongside this legal reform, Ontario announced major changes to a broad suite of regulations and approvals that govern hundreds of projects annually across Ontario.
Despite their currency, these amended legal regimes do not appear to address the challenges facing major projects on the ground – their effects on the climate crisis, the biodiversity crisis (and endangered species), and, most currently, the social justice crisis that is in no small way related to the locations chosen for major projects.
All three challenges to Canadian and Ontario impact assessment seem likely to grow in importance in the next five years.
You completed your own LLM in Environmental Law at Osgoode. What motivated to come back, and teach?
I have an LLM from Osgoode received in 1988 and an MA from York in philosophy also received in 1988. I have always had a strong interest in teaching because of the opportunity to trigger thinking and discussion. This led me to propose and teach a course at Osgoode in 1993 on environmental assessment. My courses have been subject to the ebb and flow of interest in environmental law, resulting in me teaching five different courses at three law faculties in Ontario.
My interest in teaching the graduate course emerged when Osgoode first proposed an LLM in Municipal Law. This intersected with my practice as it has long involved environmental issues arising under land use law. In Ontario, land use law is dominated by municipalities, so I have also ventured into the use of municipal law to address environmental needs. This initiative resulted in me teaching two courses on environmental protection to municipal law students.
When Osgoode ended that program, I looked into the LLM in Energy and Infrastructure Law as this is also closely related to my practice (see examples in my answer to question 1, above). I find I always learn a great deal from every course I teach, particularly the mature students that the LLM program attracts.
Has your involvement in the program benefited your practice?
It has in the past benefitted my practice as I have met future clients through teaching the municipal LLM course. More generally, teaching this course benefits my practice by allowing me to do reading and thinking about where I think the practice is headed and developing classes that address that.
In last year’s class, I organized the days to each focus on a new aspect of law and coordinated that with guest speakers, so that we learned about Toronto’s perspective on Google’s Sidewalk Labs project, the Greater Toronto Airport Authority’s perspective in developing a major transit hub on its property, and the passage into operation of Ontario’s largest wind farm by Henvey Inlet First Nation.
A HUGE congrats goes out to our 2018 @Lexpert #ZenithAward winners: Sandra Barton, John E. Callaghan, Rod Northey & Peter Snell, who’ve been recognized for mid-career excellence in the legal profession! Learn more at: https://t.co/VY4QdJ8nJJ pic.twitter.com/hzr2ewCkON
— Gowling WLG Canada (@gowlingwlg_ca) June 20, 2018
Why would you recommend the LLM in Energy and Infrastructure Law program at Osgoode?
The current COVID crisis is triggering a fundamental re-think of society and economy, particularly for specific sectors and particularly over several, now undeniable adverse effects. Energy and infrastructure projects should be part of the solution, but without a change in attitude by their proponents and regulators, they can also be part of the problem.
This LLM program gives you the time, space, and access to consider what big changes are part of post-COVID solutions.