May long weekend is here.

New Enforcement Strategy or Flavor of the Month?

“There’s no God-given right to mud-boggers”

(Minister of Justice and Solicitor General, Nanton News, May 13, 2013)

It’s May “two-four”:  begin the bush parties, litter, trucks in the river. . .  the real Fubar.  I wish I could find last year’s Sustainable Resource Development blog post about the perennial rotting couches.

There will be liquor bans, fire bans, trail closures, bear warnings and check stops. Responsible recreationalists will understand and plan ahead. They should also support enforcement.

Unruly “random camping” has come up in question period and we are led to expect more boots on the ground this summer.

Next time you head out, stop by the MD Ranchland Hall at Chain Lakes and check out “The New War Zone”, a classic  newspaper feature about the efforts of rural municipalities to address destructive recreation.

The war’s not over. In 2012 near every municipality on the Eastern Slopes met collectively with three ministers–  Justice and Solicitor General, Alberta Environment and Sustainable Resources Development, and Tourism Parks and Recreation – to request action on public use of public land.

Enforcement is a top issue on the list of countless others.  Examples include:

• The Recreational Stakeholder Workshop (2005) convened by OHV user groups and environmental groups;
• Watershed Protection on Public Lands, Agricultural Service Board Resolution #12, 2003);
• The Voluntary Planning Off Highway Vehicle Task Force Report for Nova Scotia (Eastern Provinces may be ahead. They’ve had public land for longer);
•  Review of Access Management Strategies and Tools, Foothills Landscape Managers Forum, 2009) .

What strikes me about the Foothills Forum findings is a possible challenge to assertions that most users are responsible and a few bad apples ruin it for everyone. The report indicates a sizeable middle class who are neither deliberately destructive nor knowledgeable stewards.  We need education and enforcement, but definitely more of both.

Thus when the Solicitor General traveled to Chain Lakes for an announcement on May 13^th, the question was whether this was the annual summer kick-off spiel or something deeper?

Look past the debate over public land access under the South Saskatchewan Regional Plan (for the polarized version listen to Recreation or Conservation on CBC Radio ”the 180″ with Jim Brown).  In reality multiple ministries are trying to deal with the impacts of undesirable recreational behaviour.

In 2011, the Public Lands Administration Regulation (PLAR) created new tools to address public use of vacant land.  PLAR showed excellent efforts by Sustainable Resource Development to fit the issue under a outdated Public Lands Act that barely considers recreational use. Sadly there has been little implementation, perhaps due partly to the next change.

In 2012, officers responsible for Fish and Wildlife, Commercial Vehicle Enforcement and Parks Conservation were consolidated under the Solicitor General. This makes sense if one considers that all ‘peace officers’ have a similar enforcement functions. The ministry’s goal of consolidating enforcement services to “ensure effective specialized enforcement” could be helpful. Creating a specialized OHV enforcement force was a top recommendation from the Nova Scotia report (above).

The officer transfer creates new challenges as well.  All ‘peace officers’ have powers to enforce regulatory offenses but not all officers have all powers under every statute. Then there are other policing priorities.  If your job was to promote a safe Alberta, where would you put sustained resources?  Perhaps impaired driving on Highway 63 to Fort Mac?  One can see why back road rowdies don’t top the list.

The Information Bulletin really doesn’t promise more than the annual weekend blitz.  It does, however, give much attention to the health of public land. And it isn’t alone. The Solicitor General is blogging about the outdoors. The  Nanton News quotes our political head of public security speaking the language of land managers-  asking users to ”respect the land”, to not abuse public resources and to leave it for the future. He acknowledges resistance to a “police state” but suggests that legislation dealing with OHV issues will be reviewed.

Now note the quotes from municipal councillors on watershed management solutions: like a real trail system.  Moving recreation up the land use planning agenda could make enforcement a whole lot easier.

Enjoy your weekend.

More Changes to Federal Environmental Assessment Laws on the Horizon

The federal government has recently proposed amendments to the Regulations Designating Physical Activities (RDPA) which are central to the operation of the Canadian Environmental Assessment Act, 2012. With the exception of individual projects designated by the Minister on a discretionary basis, only those projects which appear on the RDPA may be subject to federal environmental assessment.

The amendments will result in the addition of some projects to the RDPA. These additions include diamond mines, apatite mines, railway yards, international and interprovincial bridges and tunnels, bridges that cross the St. Lawrence Seaway, the first offshore exploratory wells in Exploration Licence areas and expansions to oil sands mines.

Unfortunately, the list of projects being removed from the RDPA is much larger. Those items that will no longer be subject to federal environmental assessment include:

• ground water extraction facilities,
• heavy oil and oil sands processing facilities,
• pipelines and electrical transmission lines not regulated by the NEB,
• potash mines and other industrial mineral mines (salt, graphite, gypsum, magnetite, limestone, clay, asbestos), and
• a variety of industrial facilities (pulp and paper mills, steel mills, metal smelters, leather tanneries, textile mills and facilities for the manufacture of chemicals, pharmaceuticals, pressure-treated wood, particle-board and plywood, chemical explosives, lead acid batteries and respirable mineral fibres).

It is disappointing that projects – including oil and gas seismic activities in marine areas, oilsands steam assisted gravity drainage (SAGD) projects and projects within national parks – suggested for inclusion in the RPDA in our previous comments do not form part of the draft regulations.

The federal government is seeking comments on the proposed amendments by May 20th. The proposed amendments, along with the process to submit comments, can be viewed here.

The federal government also has changes in store for environmental assessment in Nunavut. Currently, the environmental assessment process in Nunavut is conducted by the Nunavut Impact Review Board established under Articles 10 and 12 of the Nunavut Land Claims Agreement.

With Bill C-47, the federal government intends to enact the Nunavut Planning and Project Assessment Act. This act is intended to confirm the establishment of the Nunavut Impact Review Board (and also the Nunavut Planning Commission) and to describe the processes under which these bodies will operate. As well, the act is intended to establish a more streamlined process for environmental assessments and land-use approvals in Nunavut.

Currently, Bill C-47 has passed through the House of Commons and is working its way through the Senate. The status and text of Bill C-47 can be accessed on the LEGISinfo website.

Environmental groups denied standing on water appeals.

Water brokerage puts water conservation at risk.

An appeal by Alberta Wilderness Association, Water Matters and Trout Unlimited  ended when the Alberta Court of Queen’s Bench found that the Environmental Appeals Board (EAB) cannot grant “public interest standing” under the provincial Water Act. The groups sought to challenge a change to the purpose of water licenses that will allow Irrigation Districts to sell water for other uses.

The brief decision in Alberta Wilderness Association v Alberta (Environmental Appeal Board) is far from the policy-driven approach to standing emerging from the Supreme Court of Canada.

A case that could have been a missing link in public interest jurisprudence does little to enrich the law. If the EAB had power to grant standing then it might have been unreasonable not to.

“No Jurisdiction”

The case distinguishes the statutory jurisdiction of administrative tribunals from the inherent jurisdiction of the courts. All parties agreed that the powers of administrative tribunals must fit within statutes.  The question is what fits. The court found that Section 115 of Water Act limits appeals to persons who are “directly affected”.

The environmental groups argued that the EAB is created by the Environmental Protection and Enhancement Act (EPEA).  EPEA distinguishes between when appeals “must” be dismissed and when they “may” be [EPEA Section 95].  Appeals that “must” be dismissed are those that duplicate other agencies’ proceedings.  Not being “directly affected” is a situation where the EAB ”may” dismiss appeals.  Other such situations include “frivolous or vexatious” appeals.  EPEA suggests a discretionary approach to appellants that lack legal rights in order to screen out unmeritorious cases.  This approach would be consistent with common law public interest standing.

The Alberta Wilderness case will likely stand for the issue being settled when it really isn’t. Imagine that the EAB granted standing to Alberta Wilderness Association, Trout Unlimited or Water Maters.  Now imagine that the province of Alberta and the Irrigation Districts went to court claiming that the EAB has no power to hear a justiciable issue that falls within its role. Would a Court find that the EAB exceeded its jurisdiction by granting standing?  I have my doubts.

The missing rationales

The purpose of public interest standing is to uphold legality. Perversely, the Alberta Wilderness case enables official decisions to be shielded from scrutiny by the same appeals board whose role is to scrutinize them. It does not consider provincial cases that connect standing to legality, such as Reece v. Edmonton or Reese v. Alberta.

No one argued that “public interst standing” is a right. It is a discretionary move that must balance access to justice against the need to conserve judicial resources. The leading authority is the Supreme Court of Canada (SCC) decision in Downtown Eastside Sex Workers United Against Violence Society. The SCC’s reasoning may recognize that fear of opening the floodgates to litigious busybodies is overblown.  This 2012 ruling has already been applied in one environmental review: the New Prosperity Mine in BC.  The review panel noted that the importance of the public law context in deciding to apply the test for public interest standing.

The conservation of judicial resources acquires a new dimension where appeals tribunals are involved.  Consider this morrass:  Persons who want to challenge the legality of Alberta Environment decisions but fear that they will be denied standing by the EAB may have to file for judicial review of the Alberta Environment official before the EAB makes a decision on standing.  If an EAB hearing proceeds then the court proceedings will be premature. There remains a question of whether persons who are not directly affected could be third person interveners at the EAB, and whether this allows their issue to be heard. The balance between access to justice and conserving everyone’s resources might best be met by granting standing in the first instance. It is hard not to conclude that keeping people out is the real issue.

The missing test:

“No jurisdiction” means the Court did not need to consider the test for standing.  It’s a test that these groups could likely meet:

1.   A serious issue

Irrigation Districts have previously applied to the province to transfer away a portion of their water license allocation.  An example is the Balzac mega-mall north of Calgary which was enabled by a transfer from the WID to the Municipality of Rocky View.

The difference in the Alberta Wilderness case is that a change to the purpose of licenses will allow the Western Irrigation District and the Bow River Irrigation District to directly supply water for non-irrigation purposes.

Whether Alberta Environment has authority to make these amendments is unclear. Irrigation Districts are corporations established by the Irrigation Districts Act (IDA). The purpose of irrigation districts under section 6(1) of the IDA requires that irrigation districts use water according to the terms of their Water Act licenses and deliver it in accordance with the IDA.  Water Act licenses have historically been for irrigation. The IDA provides for agreements for household water use and rural water use but it makes no reference to agreements for larger amounts of water for new developments.

1.  A “genuine interest” or “real stake” in the issue

The interest of the environmental groups are covered in the EAB’s decision and a sister decision featuring the same organizations and the Eastern Irrigation District (EID). Alberta Wilderness Association is the oldest conservation organization in the province and has a large membership in the Bow Basin. Trout Unlimited is focused on freshwater ecosystems, holds statutory consents in the Bow Basin, and performs restoration work.  Water Matters is involved in water policy development and was formed in part to raise awareness of contentious water transfers involving Irrigation Districts.

The public policy contest is relevant as well. A moratorium on new water licenses in the South Saskatchewan Basin makes the availability of water a limiting factor for residential, commercial and industrial development.  Irrigation Districts hold rights to withdraw more water from the basin than gets used for irrigation. In the event of a water shortage, the water licenses held by Irrigation Districts will be very secure under the ‘first in time first in right’ system even if the end use to which that water is put has changed.

Enabling a direct supply system avoids a water conservation holdback that can be required when a license holder makes applies to the province to transfer away part of their license allocation. It could also avoid an IDA requirement that irrigation districts seek the approval of their member irrigators for transfers of license allocations that could impact the availability of water for irrigation.

The result is a triple threat:  less government intervention for water conservation, less prioritization of agricultural needs, and continued use of water for unsustainable development.

The environmental groups weren’t asking the court to debate water policy.  It simply helps show why they were appropriate parties to question the license amendments.

1.  A “reasonable and effective means” for the issue to be heard.

The decision did not consider how holding hearings relates to the mandate of administrative boards, as the Court of Appeal did in in the most recent Kelly case. The EAB is an independent quasi-judicial body with legislative authority to hear appeals from decisions

under the Water Act.  Basically the EAB provides scrutiny of regulatory decisions as an alternative to court challenges.  There were no directly affected parties to bring this appeal and no precedent of circumventing the EAB with judicial reviews.  Basically there was no other way for the issue to be heard.  The environmental groups might have passed even the most stringent formulation of the test.

The court’s disinterest in the cutting edge of public interest environmental law is discouraging. Fortunately the decision is so narrow that its only direct application may be to Water Act proceedings at the EAB.

Western Irrigation District -  “The Future”

The next 50 years for the Western Irrigation District will differ greatly from the last 50 years. The WID will evolve from being a pure agricultural service provider to a multi-faceted utility. This is as an act of necessity in response to the new societal pressures of Southern Alberta.

The Bow River was closed to new water license applications in 2007 and no new water will be allocated in the foreseeable future. As a senior license holder on the Bow River the task will fall to the District to share supply with new customer demand.

Environmental Appeals Board -  “Role of the Board”

Individuals and groups concerned about the environment, such as fish and game associations, recreational groups and conservation organizations, were also concerned. They told the review panels they wanted an independent appeal process as a way to have a say in the approval of projects that might degrade the environment. The Board was created to respond to these concerns.

World Water Day: Celebrating a public resource, now about those laws…

When my three year old and six month old see water they vibrate with excitement and want to jump right in. If they had their druthers they would stay in it until they were little prunes. They celebrate every time their toes are about to touch the water. Lucky for them they live in a country (and a region of the province) where water is relatively clean and relatively abundant, so they get many opportunities to celebrate. What they don’t understand yet is that our behaviours have direct impacts on the water resource and this has implications for others who may want to use the same resource.

When we treat water as a private resource, we disregard its fundamental nature and invariably impact others’ enjoyment and celebration. We might use it, pollute it and discard it, trusting that new high quality water is on its way down the stream. This in turn begs the question, how can we ensure we recognize water as a shared, common resource that benefits everyone? This is a timely question for those in government as they consult on various water issues around the province as part of their “water conversation.”

My message to government is that we need to treat water properly as a public resource and update our laws to reflect this. To this end, the ELC has produced a backgrounder on the topic of water as a public resource and this forms part of ELC recommendations to government around how water law and policy should evolve.

In brief, the ELC recommends amending the Water Act to ensure the public interest and environmental sustainability, as one pillar of the public interest, are fully embodied in our legislation. We can look to the common law as illustrative of how protection of water has traditionally been viewed as a public goal. Aspects of the Water Act advocate for shared responsibility over water resources, but in other areas the Act fails to adequately recognize the public nature of the resource.

We as individuals need to recognize our impacts on water, and we need to share and celebrate this vital resource. We also will need our governments to commit to recognizing water as a public resource. Our daughters and generations that follow should be able to enjoy their watery celebrations, but it takes more than conversations to make it so.

Be sure to participate in the government’s conversation.

The image from the Government of Alberta’s “Water Conversation” website. A very laudible sentiment but let’s make it a reality.

Reclaiming Tomorrow Today: Regulating well site retirement to benefit the environment

Tens of thousands of oil and gas wells sit unproductively on the landscape, either suspended or abandoned. These sites reflect an ongoing liability and have continuing impacts on the environment.  Few regulatory tools exist to prescribe timely abandonment and reclamation and this leads to continued delay in dealing with environmental impacts. The Government of Alberta is on the verge of moving energy activities to a “single energy regulator,” and this, according to an Environmental Law Centre (ELC) report, is an opportune time to address the continuing impacts on biodiversity, landowner rights, and ecological function. 

“The Government of Alberta has reported on how delays in reclamation continue to pile up” says Jason Unger, Staff Counsel with the Environmental Law Centre. “Current policies and regulations are ill equipped to properly deal with unwarranted delays in addressing the impacts of wells that have sat suspended and unreclaimed for years.”

The ELC’s report, Reclaiming Tomorrow Today, proposes specific regulatory amendments that would see abandoned sites and related infrastructure begin the reclamation process within 1 year. Suspended sites would have to justify their continued suspension through an application to the Regulator, resulting in the well being designated inactive. Where continued suspension is not justified, abandonment of the well site would be required within 9 months.

“These regulatory timelines will provide concrete environmental benefits to Albertans and assist in managing the cumulative effects of our energy development. It is one step in what needs to be a broader strategy to reign in impacts on our environment,” says Unger.

The ELC proposal would see two separate systems of abandonment and reclamation, one for private land and one for public. The private land proposal enables a landowner to object to ongoing suspensions which might then lead to a written hearing about whether the ongoing suspension is justified.

You can download Reclaiming Tomorrow Today at http://www.elc.ab.ca/Content_Files/Files/Reclaiming_Tomorrow_Today.pdf.

What would a good law look like? A Model Environmental and Sustainability Assessment Law may hold the answer.

Federal omnibus budget bills passed in 2012 brought dramatic changes to environmental regulation, particularly in the area of environmental assessments. Many of us are wondering what this means for environmental protection in Canada. This remains to be seen, and leaves us with another question: What would a good law – a law that incorporates environmentally sound principles – look like?

A Model Environmental and Sustainability Assessment Law, recently released by the Environmental Law Centre (ELC), strives to answer that question.

The Model Law:

• incorporates environmentally sound principles, enabling sustainable decision-making to become part of Canada’s landscape;
• embraces sustainability as its core objective;
• provides strong rights for public participation;
• provides fair, predictable and accessible assessment procedures; and
• provides a legal framework for strategic and regional assessment.

It is the ELC’s goal that the Model Law will be used by both provincial and federal governments to improve Canada’s environmental assessment processes.

You can read the annotated version, which provides background discussion and commentary at http://www.elc.ab.ca/Content_Files/Files/AnnotatedEAModelLawsDGLFinalJan2013.pdf. The version without annotations is available at http://www.elc.ab.ca/Content_Files/Files/EAModelLawsDGLFINAL.pdf.

The ELC thanks its funders – the Alberta Ecotrust Foundation and the Alberta Law Foundation – for supporting this project.

 

Filling in the gaps – more reasons to speak up about Alberta’s new energy regulator

Image courtesy of Rosemary Ratcliff / http://www.freedigitalphotos.net

Alberta Energy is now half-way through its consultation workshops on regulations under the Responsible Energy Development Act, which will set out process and rules for the new Alberta Energy Regulator (AER). The workshops will be completed by mid-March. Earlier this week, we set out some broad reasons why Albertans should get involved in the consultations. Having gathered more information to let you know what Alberta Energy is asking and how these workshops are carried out, we’re back with a couple more reasons why you should speak up. Remember, you don’t need to read the Act, just have some opinions and ideas about how energy development in Alberta works and doesn’t work; how it should work responsibly in the future; and what you want your Alberta and your environment to look like going forward.

So what should you expect if you’re thinking of going to a workshop? These sessions are set up as 3-hour public meetings with facilitated discussions. The workshop begins with a brief introduction by an Alberta Energy official, who provides some background on the single energy regulator initiative, the Act and the AER. This is followed by break-out discussions on three topic areas that parallel the broad questions being asked in the government’s online survey.

One topic area is titled “engagement in the process” and deals primarily with communications from the AER: How should notices and AER decisions be communicated? What timelines should apply for people to respond? A second topic area is “protecting the interest of Albertans” and deals with procedural questions. What should the AER consider in making decisions? What circumstances should move applications to hearings? How should the AER use alternative dispute resolution, such as mediation?

This brings us to a gap that needs filling and another reason to speak up and participate: none of the questions being asked address who should be allowed to participate in the AER processes. When the Act was before the Legislature, we and many others raised concerns that the system being created was too narrow; that it took away long-standing procedural rights for Albertans related to energy decision-making; and that it would limit the ability of Albertans to raise environmental concerns caused by energy development. The questions being asked in the consultation do not directly deal with participation rights. It’s key for Albertans who are concerned about the limits and reductions that the Act will create on public engagement in energy regulatory decisions to speak up about this gap and how it should be fixed.

The third topic area to be addressed is the landowner registry, a tool created by the Act to allow landowners to register and seek enforcement of private surface agreements with energy companies. The government is asking how the registry and AER should be set up to honour these agreements, and what these agreements should contain to make them eligible for registration. While the creation of a registry is a positive step to assist landowners, an important detail will make a big difference for many landowners and is another gap we see: the registry is not available for private surface agreements that pre-date the Act. This means that only agreements created after the Act comes into effect will have the benefit of registration and enforcement assistance from the AER. Landowners with agreements created before the Act are in the same position as they were before; they will see no benefit from the creation of this registry. The consultations give these landowners an opportunity to express their opinions on whether and how they should be able to use the registry.

What if you can’t make it to a workshop? How can you make yourself heard? There are a couple of options available to Albertans beyond the workshops. One step is to complete the online survey (see the link above); the questions are largely the same as those being discussed at the workshops. Another step is to send your written comments to Alberta Energy’s Policy Management Office, to the attention of either Wade Clark (wade.clark@gov.ab.ca) or Cynthia Farmer (cynthia.farmer@gov.ab.ca) by e-mail or regular mail. The mailing address is: Alberta Energy, Policy Management Office, 3^rd Floor, Terrace Building, 9515 – 107 Street, Edmonton, AB, T5K 2C3.

Have you participated in the consultations so far? We want to hear about it! Share your experience and thoughts with us by posting a comment below.