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In Hanna v. MOE, what did the Decisional Court decide about the legal status of the Ministry of the Environment Statement of Environmental Values? Not much, in my opinion.

At paragraph 14, the court described the issues as follows:

Was the minister required to comply with section 11 of the Environment Bill of Rights [which refers to the Statement of Environmental Values] as a condition precedent to his decision to recommend promulgation of the regulation? Did he do so?

At paragraph 31, they added a third question:

If he did not comply with the mandated process, the court would have to decide if the failure to do so means he acted without lawful authority.

In my view, the court didn’t answer either questions 1 or 3. They didn’t have to, because it was so clear that the minister had complied with his SEV when deciding whether to propose the Renewable Energy regulation, including the 550 m setback for wind turbines. The courts have a long tradition of deciding cases on the easiest possible basis, and of refusing to decide the remaining issues if they can. In this case, the easiest question to answer was number 2, and that is all that they answered.

So, what is the legal status of a Statement of Environmental Values?  Can it be enforced at all? I still think the answer is probably not, at least in relation to a regulation, because of the full privative clause Environmental Bill of Rights. But the Environmental Review Tribunal has agreed, in the Erickson case, to at least consider consistency with the Statement of Environmental Values in evaluating whether a particular approval will cause “serious harm to human health”.

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