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As indicated in previous posts, the Alberta government is currently reviewing the Municipal Government Act (MGA). Given the key role that municipalities play in the management and protection of Alberta’s environment, we have participated in this review by making written submissions. Ultimately, we would like to see the MGA amended to require and empower municipalities to manage and protect the local environment.

At the end of July, the government released its first What We Heard document summarizing public and technical consultations held from February to April of this year. This document organizes concerns raised during consultations into 54 policy issues. While several of these policy issues are relevant to environmental matters, there is little discussion of environmental concerns in the What We Heard document. The government has indicated that additional documents will be issued throughout the summer and fall summarizing the workbook and written submissions (these will be available on the MGA Review website).

According to the first What We Heard document, the next steps in the MGA review are collaboration among government ministries and targeted consultations with key stakeholders (see page 18). In mentioning the focus group process designed to engage stakeholders, the government highlights only industry as a key stakeholder. It is certainly our hope that the government will seek the input of environmental stakeholders as well.

The government indicates that legislative drafting will occur later this year. Our key recommendations for strengthening the MGA are:

  1. Protection and management of the environment is a valid municipal planning purpose and, as such, should be expressly recognized in the MGA.
  2. The MGA should incorporate by-law purposes specific to protection and management of the environment.
  3. The MGA should expand the enforcement tools available to municipalities for the purposes of environmental protection and management.
  4. The MGA should expand the revenue generation options available to municipalities to enable environmental stewardship and, particularly, land conservation.
  5. The MGA should enhance opportunities for public participation in municipal planning processes.

We believe that these amendments will empower municipalities to play a pivotal role in the protection and management of Alberta’s environment.

Located in the Baker Centre (10025 106 St NW, Edmonton), 1300 sq. ft. for sublease by tenant until March 2016. Rate negotiable and opportunities available for reception services and board room access. Parkade parking available, with easy access to LRT and bus service.

For more information, please email the Environmental Law Centre, at elc@elc.ab.ca or telephone the Office Manager at 780-424-5099.

Baker

 

This question was raised at the Oldman Watershed Council Annual General Meeting. The “dry dam” proposed for the Elbow River is no small deal. It could be the same type of towering concrete wall that contains permanent reservoirs except that it would usually sit empty. If it is allowed to remain full for long enough to reduce flooding downstream then it might kill the underlying vegetation. The photo of a mountain valley turned into a dustbowl by a similar project elsewhere was one of the more striking images at the meeting.

To figure out whether an environmental impact assessment (EIA) is required you need to find out the height of the dam and how much water it would hold.  A provincial assessment is required for a dam greater than 15 metres in height when measured to the top of the dam “from the natural bed of the watercourse at the downstream toe of the dam.” If the dam isn’t across a watercourse then the measurement is from “the lowest elevation at the outside of the dam.” A provincial assessment is also required for a water reservoir with a capacity over 30 million cubic metres no matter how high the dam is.

The other project being considered as I understand it is to divert the Highwood River around the town of High River. In this case a provincial assessment would be required for a “water diversion structure and canals with a capacity greater than 15 cubic metres per second.” Even if the project doesn’t meet these technical requirements the Minister of Alberta Environment and Sustainable Resource Development could still order an EIA but there would be no way to force one.

If there is a provincial assessment it will trigger an NRCB review of a “water management project.” No person can start such a project without an NRCB review and it shouldn’t matter that the government is the project proponent as the NRCB Act is binding on the Crown. A “water management project” is defined by the NRCB Act as a project for which an environmental impact assessment is required so getting the environmental assessment is the key to getting an NRCB review. As part of the review the NRCB can make investigations or inquiries, prepare studies or reports, or hold hearings. This review could get underway with low key studies or reports. The NRCB only has to hold a public hearing if someone is directly affected. If a hearing is triggered then further persons can apply to participate. Regardless of the review format the NRCB must provide 30 day notice of any necessary proceedings. This notice would likely be in local newspapers, prominent community locations or provided to persons in the area who may be directly affected.

The chance of a federal environmental assessment is lower since the 2012 reforms. For a dam, a federal assessment is required for: “the construction, operation, decommissioning and abandonment of a new dam or dyke that would result in the creation of a reservoir with a surface area that would exceed the annual mean surface area of a natural water body by 1 500 ha or more.” For a diversion project, a federal assessment is required for: “The construction, operation, decommissioning and abandonment of a new structure for the diversion of 10 000 000 m3/year or more of water from a natural water body into another natural water body.” Federal assessments are now only required for listed projects. They will no longer be triggered based on the need for fisheries act permits. Likewise the Elbow and Highwood Rivers are no longer protected under the Navigable Waters Protection Act as reforms reduced protection to listed water bodies. If a Federal assessment is required then the federal government can substitute an equivalent provincial assessment to meet its own requirement. There is no more need for joint provincial-federal panel reviews as there was before 2012.

I have been misrepresented by the Lethbridge Herald in the June 26th article “Nobody at the Wheel.” This needs to be corrected because providing the public with accurate legal information is my job.

Managing recreational use of public land is hard and complicated.  Responsible recreational users might be the first to tell you there needs to be enforcement, education, and a movement towards real trails and campsites instead of industrial disturbances not built for these uses.  That is a lot of work and there are serious legal barriers to moving forward.

The root problem in Alberta is that public land agencies lack clear legislated direction to make recreation management their job.  This lack of mandate is compounded by lack of funding, and currently most users don’t pay for their experience or their impacts. To aggravate matters, improving physical infrastructure creates fear of legal liability should someone be injured.

These problems are way bigger than the polarized debate over “access” to public land. When it comes to access, apparently my position wasn’t clear. If all you want is access, there absolutely are not “too many gatekeepers” or bureaucratic hurdles as the Herald suggests. Public land in Alberta is legally “open unless closed.”  It’s almost hard to remember that recreational access is a privilege, not a right.  The barriers that concern me only come up when one tries to take action.  Under the current regime, efforts to formalize the recreation system can be spun as a rollback as much as an improvement.

The Americans do it differently and arguably better. The Herald has me wrong when it says that American states are creating single agencies. States have just as many public land agencies as we do, more if you count the federal government.  The key is that American legislation gives these numerous agencies similar direction to create recreational opportunities and mitigate impacts. Inside or outside parks, it will be someone’s job. They can get money from users for these purposes and they’re protected from lawsuits when accidents happen.  Their access system is “closed unless open,” but that tired debate becomes academic given the opportunities for responsible use.  We can do this in Alberta, too. The public and our land deserve no less.

Late last year, the National Energy Board (NEB) released its decision on the Northern Gateway Project and recommended approval of the project subject to 209 conditions (see here for our summary of that decision). While the NEB conducted the public hearing and issued a decision, the final decision to approve or not approve the project rested with the federal Cabinet. On June 17th, Cabinet announced that it has accepted the NEB decision in its entirety (see here).

Cabinet’s decision

With Cabinet approval secured, the NEB will now proceed to issue certificates of public convenience and necessity under section 52 of the National Energy Board Act. Issuance of the certificates of public convenience and necessity is merely one step toward full approval of the project. Cabinet’s press release indicates that Enbridge is still required to acquire other permits and approvals. These may be federal (for example, approvals under the Fisheries Act) or provincial (both Alberta and British Columbia).  As well, according to the press release, Enbridge is still required to consult with affected communities and aboriginal peoples.  And, of course, many of the 209 conditions must be met by Enbridge before the project can proceed.

Will the project actually proceed?

Despite approval by Cabinet, a good question is whether or not the project will actually proceed? There are several factors to keep in mind when answering this question:

  • There are still outstanding legal challenges to the NEB’s decision report (there are at least five applications for judicial review filed by either First Nations or environmental groups).
  • Several aboriginal communities have expressed staunch opposition to the project. Aboriginal peoples have a constitutional right to be consulted and accommodated where their aboriginal rights may be affected. While Cabinet’s press release suggests that Enbridge must fulfill the duty to consult and accommodate, this duty actually rests with the provincial and federal governments.
  • The B.C. government has indicated its rejection of this project unless Enbridge can meet five conditions set by the province (see our previous post). This may impact on Enbridge’s ability to obtain the necessary permits and approvals from the B.C. government.
  • There is strong public opposition to this project, especially in British Columbia, which may impact on Enbridge’s consultation efforts and ability to obtain general public acceptance for the project.

So, even though the Northern Gateway project has won Cabinet approval, it is foreseeable that these factors may impact its actual progress.

Recommendations to Strengthen Alberta’s Municipal Government Act

In Alberta, the powers and activities of municipalities are governed by the Municipal Government Act (the MGA). The Government of Alberta is currently conducting a review of the MGA and, as part of this process, we made our written recommendations last week.

It is our view that municipalities play a key role in managing and protecting Alberta’s environment. This occurs through regulation of private land uses and through local land use planning. However, the current MGA does little to require or empower municipalities to manage and protect the local environment. We would like to see environmental management and protection of the environment as a priority in the activities of municipalities.

To this end, we have made several recommendations to strengthen the MGA. These recommendations fall into several broad categories:

1. Protection and management of the environment is a valid municipal planning purpose and, as such, should be expressly recognized in the MGA.

We recommend that definitions of environment and sustainability be incorporated into the MGA, and that environmental protection and management be expressly included as municipal purposes. It is our view that expressly granting municipalities clear legislative guidance and authority for dealing with environmental matters will enhance the provincial approach to regional land use planning under the Alberta Land Stewardship Act (ALSA).

2. The MGA should incorporate by-law purposes specific to protection and management of the environment.

We recommend that bylaw powers granted in the MGA be expanded to include environmental protection (rather than depending on less direct, general welfare provisions). It is the ELC’s view that this will provide clarity and guidance about the municipal role in environmental protection and management.

3. The MGA should expand enforcement tools available to municipalities for the purposes of environmental protection and management.

It is our view that current enforcement tools available to municipalities are insufficient for achieving environmental protection and management. We recommend improving enforcement by establishing enforcement tools similar to those available in the Environmental Protection and Enhancement Act (EPEA)and aligning available municipal tools with ALSA.

4. The MGA should expand revenue generation options available to municipalities to enable environmental stewardship and, particularly, land conservation.

Insufficient funding impairs the ability of municipalities – both large and small – to fulfill their roles, even where municipal powers are otherwise sufficient. We recommend that the MGA be amended to enable directed revenue for environmental initiatives.

5. The MGA should enhance opportunities for public participation in municipal planning processes.

It is our view that current opportunities for public participation in municipal planning and decision-making are too limited. Early, meaningful engagement of the public in decision-making processes leads to better decisions and, accordingly, we recommend that the MGA be amended to improve public participation opportunities.

If you’re interested in reading more, our recommendations can be viewed and downloaded here.

The Government has indicated that it will release a series of “What We Heard” documents throughout the summer to summarize all input received through consultations, workbooks and written submissions. These documents will be available on the MGA Review website.

 

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Gerry Protti at Green Regs & Ham, Calgary, 2014

Last week, over 100 environmental nonprofit leaders, regulatory lawyers and industry representatives gathered together to enjoy Green Regs & Ham in Calgary. This second-annual event featured Gerry Protti, Chair of the Alberta Energy Regulator (the AER), who provided an overview of the regulator’s first year in operation.

Mr. Protti addressed some of the challenges and successes of the past year.  Some highlights of his presentation included:

  • As of April 1st, responsibility for environmental matters related to oil and gas under Alberta’s Water Act and Environmental Protection and Enhancement Act has been transferred to the AER.
  • The AER intends to take a holistic approach to oil and gas development and regulation, including:
    • the adoption of “play-based” regulation, which focuses on regulating the surface and subsurface of a particular formation (as opposed to the traditional one well-one licence approach);
    • use of a performance-based approach to regulate outcomes, which includes managing cumulative effects, minimizing spread of surface infrastructure, and conserving and managing water; and
    • increased planning and collaboration among companies and community stakeholders.
  • With respect to making determinations of standing, the AER is still using the “directly and adversely affected” test.

In addition to the presentation (that you can view here), there was the unique opportunity to direct questions to the AER Chair through our pre-event survey and at the event. We received lots of great advance questions from our guests which Mr. Protti addressed during his presentation. As well, Mr. Protti responded to additional questions in the live Q&A.  When asked what he would like to “do over,” Mr. Protti replied that he felt that, despite working hard on it over the past year, the AER could have communicated better with the public.

Throughout the transition to the AER, we have worked with the government’s Policy Management Office to assist with policy development. This includes addressing the “directly and adversely affected” test for standing currently used by the AER (and other regulatory bodies). We continue to promote and advise that the “genuine public interest” test for standing is superior and ought to be adopted. Our research shows that broadening standing to include genuine public interest results in better decisions and higher public confidence in the decision-making process. Further, broadened standing does not adversely affect timing of development. In fact, we see this kind of decision-making as a win-win for all stakeholders: industry, the public and the environment. Stay tuned for more on this topic in future blog posts, publications and events. You can also find a wealth of information on standing under Public Participation on both our website and our blog.

A very special thank you to the Alberta Energy Regulator, our sponsors, Devon Canada and Cenovus Energy  and our other donors for helping us host this successful event.

As a blog subscriber, we know you care about these issues. Your donations support our outreach and education programs, including this blog and many of the resources you rely on in support of your interests, practices and organizations. We must raise $60,000 before the end of the year to fully support our education and outreach programs. Every donation we receive supports this. Your support is needed to ensure that Albertans enjoy a healthy environment while developing our natural resources. Please give generously.

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Gerry Protti

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Green Regs & Ham 2014

 

 

 

 

 

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