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The ELC recognizes the important role that municipalities have in protecting and managing Alberta’s environment.  Looking at the discussion papers developed in preparation for the Municipal Government Act consultations, it seems that this important municipal role may have been overlooked, so we have requested that the consultation process be expanded to expressly and fully consider the environmental role of municipalities in Alberta.

Here’s our letter:

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While the recently issued Environmental Protection Order that mandates the reclamation of an abandoned wellsite is a good step for the site (and the landowner)  it also stands as an illustration of how things need to change.  As reported in the Calgary Herald the well at issue has been the subject of concern since 2006 (and possibly prior).

It would be interesting to know the amount of time and money spent by the department to get compliance in this instance (and they aren’t there yet).   Then consider a similar regulatory approach in the context of 16,975 wells that were abandoned between 1963 and 2002 (see AESRD) and the additional 35,856 wells that have been abandoned since 2002 (for a total of 52,831 abandoned and unreclaimed wellsites at the end of 2012).

Granted, one must assume only a small portion of these abandoned wells would require the same amount of regulatory oversight.   Nevertheless one is confronted by the enormity of the task in tackling this legacy of abandoned wellsites and the thought that there must be a better way.

In 2013 the ELC released Reclaiming Tomorrow Today, a report that proposes regulatory amendments that set timelines on reclamation and abandonment.  The timelines would bring environmental, social, and economic benefits to Albertans and assist in managing the cumulative effects of our development.

The approach is straightforward and would provide a high level of regulatory certainty.  Granted the transition from our current approach to one with regulatory timelines on reclamation will bring some economic pain to those holding long abandoned sites.  I anticipate that regulatory timelines  would also reveal the true nature of liabilities on the landscape and the ability of the operators who own these sites to reclaim them as required.

We can continue to spend our enforcement and compliance pennies on these sites one at a time but I think it is time to go “in with a pound” and change our regulatory approach to manage this backlog of unreclaimed wellsites.

Section 91 (12) of Canada’s Constitution clearly states that “Sea Coast and Inland Fisheries” are the jurisdiction of the federal government. It appears, though, that the federal government might no longer want this authority, as a recent proposed regulation is set on deferring management of waterway pollution to provincial regulatory bodies.

The focus of the proposed regulation is s.36 of the Fisheries Act and the type of regulations that may be passed to allow for the deposit of harmful substances in waters frequented by fish. The pollution prevention provision of s. 36(3) of the Fisheries Act is an example of a proactive and precautionary approach to environmental management.

s. 36(3) Subject to subsection (4), no person shall deposit or permit the deposit of a deleterious substance of any type in water frequented by fish or in any place under any conditions where the deleterious substance or any other deleterious substance that results from the deposit of the deleterious substance may enter any such water.

This approach to pollution control should be emulated elsewhere, yet the proposed federal approach seeks to undermine this precaution in favour of broad-ranging adoption of provincial standards.

The proposed regulation outlines the scope of Ministerial regulatory powers, stating at section 4:

The power that is conferred by subsection 36(5.2) of the Act may be exercised in relation to any other subject matter if the following conditions are met:

(a) the deleterious substance to be deposited, its deposit or the work, undertaking or activity that results in the deposit is authorized under federal or provincial law or is subject to guidelines issued by a federal or provincial government and is subject to an enforcement or compliance regime;

(b) the federal or provincial law or guidelines set out conditions that result in a deposit that is not acutely lethal and contains a quantity or concentration of deleterious substance that, when measured in that deposit or in the relevant water frequented by fish, satisfies

(i) the recommendations of the Canadian Water Quality Guidelines for the Protection of Aquatic Life that were published in 1999 by the Canadian Council of Ministers of the Environment, as amended from time to time, or the recommendations that were derived from those guidelines on their site-specific application, as amended from time to time, or

(ii) the recommendations of any peer-reviewed guidelines that are established for the purpose of protecting aquatic life and adopted by a federal or provincial body; and

(c) the effects of such a deposit on fish, fish habitat and the use by man of fish have been evaluated in accordance with generally accepted standards of good scientific practice.

Basically, this approach is focused on, with some qualifiers that raise significant uncertainty, giving polluters with provincial authorization a “pass” for s.36(3). If regulatory equivalency was one end of the constitutional inter-delegation spectrum (wherein provincial regulations mimic federal standards), this approach would be leaning to the other.

The regulations promulgated under this section can rely on dilution of pollution (unlike the approach taken in section 36(3)) with the focus on “the relevant waters frequented by fish”. This approach to regulation, if to be effective for environmental outcomes, requires significant knowledge of the assimilative capacity of water bodies at all relevant times as well as a fulsome understanding of cumulative contributions (both anthropogenic and natural) to water quality. Further, the reliance on Canadian Council of Ministers of the Environment and site-specific guidelines, an undefined peer-review process, and the inherent inability to manage and asses provincial compliance monitoring and enforcement under the proposed regulation add to the likelihood that accountability for outcomes for fish and their habitat will be elusive.

The Regulatory Impact Analysis Statement (RIAS) itself provides the following justification for the approach:

deposits from an industrial sector that are managed by a provincial permitting program may not be authorized under the Act, even if they comply with the provincial permit requirements. This uncertainty could pose a challenge to some industries in that it could discourage investment decisions or delay business development.

In effect, the RIAS statement appears to be saying that ignorance of (and/or frustration with) federal law is now a valid argument to have blanket authorizations of harmful deposits driven by provincial standards and permits.

It is becoming increasingly clear that s. 91(12) of the Constitution has become viewed as a major nuisance to development rather than a positive mandate to protect fish and their habitat. The proposed approach is divergent from sound environmental law principles, directly undermining pollution prevention and the precautionary principle, both of which are embodied in the section 36(3) prohibition. The federal government may not readily get “out” of managing sea coast and inland fisheries but our environment need stewards not spectators.

For more commentary on the proposed regulations see the brief of the Canadian Environmental Law Association and West Coast Environmental Law.

 

In our recent post on the Northern Gateway decision report, we mentioned an ongoing court case brought by Ecojustice on behalf of several environmental organizations. The Western Canada Wilderness Committee v Canada (Fisheries and Oceans) case concerns governmental delay in developing recovery strategies under the Species at Risk Act (SARA), including several species that are likely to be impacted by the Northern Gateway Project.  In mid-February, the Federal Court issued its decision in this case.

Highlights of the Western Canada Wilderness Committee v Canada (Fisheries and Oceans) decision

Under SARA, the federal government has an obligation to prepare and publish recovery strategies for listed species at risk. The recovery strategy is a crucial step for providing protection to endangered or threatened species under SARA. This includes identification and protection of critical habitat necessary for the survival of a species. Timelines for the preparation and publication of recovery strategies are set by SARA (depending on the status of the species, up to four years from the date of listing plus a 90 day public comment and finalization period).

The federal government has consistently failed to meet the statutory requirements for the preparation and publication of recovery plans. While this case specifically considered the failure to develop recovery plans for the White Sturgeon, the Humpback Whale, the Marbled Murrelet and the Woodland Caribou in a timely fashion, these species are merely representative of the systemic problem of substantial delays [paragraph 35].

The Court determined that the federal government acted unlawfully in failing to post recovery strategies for the four species in accordance with the statutory timelines set by SARA. The Court did not find any of the federal government’s reasons for delay to be justified (time needed to develop new policies, standards, administrative structures and consultation processes with the enactment of SARA;  organizational capacity issues (such as staff turnover);  scientific challenges; and attempting to understand various court decision regarding SARA).

The Court recognized that the development of a recovery strategy is a complex process that raises administrative challenges and involves an evolving base of scientific knowledge. However, it noted that a recovery strategy should be “science-based, not consensus-based” [paragraph 70]. Further, the Court noted that, in accordance with the precautionary principle, the development of a recovery strategy should not be postponed for a lack of scientific certainty.The Court stated [paragraphs 101 and 102]:

To state the obvious, the Species at Risk Act was enacted because some wildlife species in Canada are at risk.  As the applicants note, many are in a race against the clock as increased pressure is put on their critical habitat, and their ultimate survival may be at stake.

The timelines contained in the Act reflect the clearly articulated will of Parliament that recovery strategies be developed for species at risk in a timely fashion, recognizing that there is indeed urgency in these matters.  Compliance with the statutory timelines is critical to the proper implementation of the Parliamentary scheme for the protection of species at risk.

In making its decision, the Court commented that it is “apparent that the delays encountered in these four cases are just the tip of the iceberg. There is clearly an enormous systemic problem within the relevant Ministries, given the respondents’ acknowledgement that there remain 167 species at risk for which recovery strategies have yet been developed” [paragraph 85].

How does this impact the Northern Gateway decision report?

The Court specifically commented on the government’s failure to develop recovery strategies in time for consideration by the Northern Gateway Joint Review Panel (in response to the lawsuit, the recovery strategies were posted but too late for consideration by the Joint Review Panel). While the Court accepted that the work done in relation to the proposed recovery strategies may have assisted with the Ministries’ submission to the Joint Review Panel, it found that cannot be “equated to the level of protection that would be provided to the four species, had the recovery strategies been posted for them in a timely fashion” [paragraph 60].

It remains to be seen how this decision will affect the outcome of the Northern Gateway decision-making process. While the relevant recovery plans were posted too late to be considered by the Joint Review Panel, the final decision in this matter is yet to be made by the federal cabinet. Will the federal cabinet be required to consider the recovery strategies while looking at the Northern Gateway Joint Review Panel decision report?  How will the pending applications for judicial review of the Joint Review Panel be impacted by the Federal Court’s decision in this matter? We will keep you posted on new developments in the Northern Gateway decision-making process and pending litigation.

Answer:  No one who doesn’t ask.

Here’s a little story from the CBC about their efforts to access information on a not so little pipeline explosion. In response, the National Energy Board disclosed an incident report that the article implies was altered in response to CBC’s request. The characters in this story provide some increasingly familiar views. The policy expert notes that this evidence of TransCanada’s track record was not available during the Keystone XL Pipeline review. The Aboriginal informant claims that what’s happening in the northern bush is out of sight, out of mind.

Here’s a similar story under Alberta law: Global Forest Watch requests mass disclosure of oil sand incident reports that must be made available by law. (see Environmental Incidents in Northeastern Alberta’s Bitumen Sands Region, 1996-2012). The exception to disclosure is where incidents are under investigation.  The allegation is that such incidents were not returned to the database after investigations closed, meaning that the worst spills were not disclosed.

So . . . Canada and Alberta share dismal grades for access to information . . . but mostly when graded by “public interest” information seekers. Here’s a contrast: Alberta Views provides great coverage of the scathing view, and it transcends environmental concerns. Our article in the Wildlands Advocate is more tempered given that more environmental information is legally available than ever before.  Note that neither the CBC nor the Forest Watch case involved legal denial of information. They highlight the more practical issue of information delivery.

Perhaps “Out of sight out of mind” applies to Information Seekers too. The allegation that the public is clamoring for information that governments and corporations want to conceal is based on experience but it’s hard to substantiate with numbers.  Most requests for information on spills and contamination come from private interests like other companies or real estate buyers doing their due diligence. A million people can read a newspaper or belong to an environmental group, but there’s still only one information request.  If everyone who follows CBC or Global Forest Watch filed separate requests, the most efficient use of public money might dictate that these incident reports  be posted online.

It’s completely fair for normal people with busy lives to rely on public interest watchdogs to do the heavy lifting. Just don’t expect information sharing to improve this way. We’ll have access rights based on public values but delivery systems catering to unrelated private concerns.

Things could even get worse if the 2013 review of the Alberta FOIP Act is any indication. The review is finished, and its focus – to provide “the right information to the right person for the right purpose” – couldn’t be farther from public interest disclosure. It shouldn’t matter who wants the information or what they will do with it, but they do need to ask for it.

Municipalities have the potential to play a key role in environmental protection. Many private land uses are controlled and regulated at the municipal level. As well, municipalities are responsible for local land-use planning through municipal development plans, area structure plans and so forth. We would like to see environmental protection as a priority in the activities of municipalities.

It is with this goal in mind that we will be participating in the recently announced consultations on the Municipal Government Act (the MGA). Starting in February and throughout the spring, the Alberta Government will be conducting consultations on the MGA. Consultations will consist of written workbooks and surveys, as well as, in person meetings throughout Alberta. Meeting dates are as follows:

  • Edmonton: February 5-7, 2014
  • Fort McMurray: February 12-14, 2014
  • Vermilion: February 19-21, 2014
  • Lethbridge: February 26-28, 2014
  • Edson: March 5-7, 2014
  • Red Deer: March 12-14, 2014
  • Brooks: March 26-28, 2014
  • Grande Prairie: April 2-4, 2014
  • Calgary: April 9-11, 2014

If you are interested in learning more or participating in the consultations, check out the Alberta Government consultation website at http://mgareview.alberta.ca. In support of the consultations, the Alberta Government has published a series of discussion papers relating to various aspects of the MGA. These papers can be found at http://mgareview.alberta.ca/additional-information.

The proposed Northern Gateway Project (the “Project”) consists of two pipelines and a marine terminal. The pipelines are anticipated to follow a 1 km wide route from Bruderheim in northern Alberta to Kitimat in northern B.C. covering over 1,170 km (see a map of the route here). The proposed route for the pipeline crosses over a small amount of private lands, over public lands and over lands claimed by various aboriginal groups. The marine terminal associated with the Project will be located in Kitimat, B.C. at the eastern end of the Douglas Channel. It is anticipated that the marine terminal will have two tanker berths and 19 storage tanks (for condensate and petroleum).

Over a period of several months, the National Energy Board (the “NEB”) conducted the hearing on the proposed Project. The hearing considered matters under the National Energy Board Act and the Canadian Environmental Assessment Act. Firstly, the NEB considered an application under the National Energy Board Act for a Certificate of Public Convenience and Necessity. Secondly, the NEB was appointed as a Joint Review Panel (the “JRP”) under the Canadian Environmental Assessment Act. As well, the Government of Canada indicated that it is relying upon the consultation efforts of the proponent and the JRP to discharge its duty to consult with Aboriginal groups.

In late December, the JRP released its decision on the Northern Gateway Project. The decision report has been released in two volumes entitled Connections (Volume 1) and Considerations (Volume 2). The JRP concluded that, on weighing the evidence, Canadians would be better off with the Project than without it. Hence, the JRP recommended that the Project be approved subject to 209 conditions (set out in Volume 2). The conditions address a range of matters through different stages of the project – some apply before construction, some during construction and some during operation of the Project.

The decision covered issues raised in relation to social and cultural impacts, economic impacts, safety concerns and environmental impacts associated with the Project. However, the JRP did not consider any issues related to trade policy, renewable energy or industrial strategy. Nor did the JRP consider issues related to increased greenhouse gas emissions or any other environmental and social issues associated with oil sands development.   

The reason provided by the JRP for this latter exclusion was that it “did not consider that there was a sufficiently direct connection between the project and particular existing or proposed oil sands development or other oil production activities to warrant consideration of the effects of these activities”. This is an interesting conclusion considering that the pipelines and marine terminal are being built to transport the results of oil sands production. 

Here are some key points in the decision:

  • The JRP found that the Project will likely cause adverse – albeit not significant – environmental effects on a number of ecosystem components including rare plants, rare ecological communities, soils, old-growth forests, wetlands, surface and groundwater resources, fish habitat, and marine water and vegetation. As well, the JRP found that the project will likely cause adverse impacts on a variety of animal species (including many species at risk). Unfortunately, due to governmental delay in developing recovery strategies under the Species at Risk Act, recovery strategies for many species that are likely to be impacted by the Project were not available to the JRP (such as the North Pacific Humpback Whale population).[1]
  • The JRP found that – even in light of Northern Gateway’s mitigation and scientific research commitments – the negative impacts on certain woodland caribou and grizzly bear populations were significant. The JRP concluded that the significant negative impacts could be justified in the circumstances because “[t]he potential adverse environmental outcomes are, in the Panel’s view, outweighed by the potential social and economic benefits described [in Chapter 2]” (volume 2, page 10).
  • A contentious issue discussed in the decision report  is the behavior of dilbit in case of a marine spill (“dilbit” is short for diluted bitumen – given the viscosity of bitumen it must be diluted with condensate or synthetic crude oil prior to transport through a pipeline). Several intervenors were concerned that dilbit would, at least in part, sink in a marine environment making cleanup more difficult (a recent report issued by Environment Canada appears to provide support for this concern). The JRP acknowledged that there is uncertainty regarding the behavior of dilbit spilled in water  but concluded that dilbit is unlikely to sink within the timeframe in which initial on-water response might occur (volume 2, page 99). The JRP found that more research is required in order to inform detailed spill response planning and noted that the Northern Gateway  Pipelines Limited Partnership committed to conducting such research.
  • With respect to a potential pipeline or tanker spill, the JRP concluded that a spill was unlikely and that environmental, social and economic  adverse effects  would be temporary. The JRP concluded that “environmental, societal, and economic burdens of a large oil spill would likely by reduced by effective spill response, financial compensation, and natural recovery processes within the environment, in weeks to months.” (volume 2, page 12). The JRP further found that “[s]ome components, such as individual species and habitats, would likely recover within weeks, months or years. In the case of large mammals, recovery times could extend to decades.” (volume 2, page 12). Large marine mammals that could be impacted by a spill include the North Pacific Humpback Whale population, a threatened species.

Ultimately, the final decision as to whether or not the Project will be allowed to proceed rests with the federal Cabinet. The federal Cabinet may either reject or accept the recommendations made by the JRP.  It is also possible for the federal Cabinet to send one or more of the recommended conditions back to the JRP for reconsideration.

It is not surprising – given the scale of the Project and the level of public engagement in the hearing – that the decision report has already been subject to legal challenge. It appears that at least four applications for judicial review have been filed in response to the JRP’s decision report (two by First Nations and two by environmental groups). The Victoria Environmental Law Centre has filed a judicial review application on behalf of BC Nature on the grounds that the JRP’s decision report contains several legal flaws – including a conclusion that adverse effects on caribou are justified and that there were no likely significant adverse environmental effects associated with  a large oil spill (see the media release).

A judicial review application has also been filed by Ecojustice on behalf of Forestethics Advocacy, Living Oceans Society and Raincoast Conservation Foundation (see the media release).  The judicial review application filed by Ecojustice argues that the JRP’s decision report contains several legal errors and is based on insufficient evidence. In its application, Ecojustice has raised concerns with the JRP’s:

  • conclusion that dilbit is unlikely to sink in a marine environment,
  • conclusion that the Project is unlikely to cause significant adverse effects without an assessment of the geohazards not being completed prior to construction,  
  • failure to consider the recovery strategy for the Humpback Whale,
  • failure to identify adequate mitigation measures for caribou, and
  • decision to not consider environmental effects associated with oilsands development even though it did consider the economic benefits of that development.

Both the Victoria Environmental Law Centre and Ecojustice have requested that the approval process be halted until the judicial review applications have been heard. Neither the Canadian Environmental Assessment Act nor the National Energy Board Act state that the approval process must be stopped until the judicial review applications have been heard; however, it is possible that the Federal Court of Appeal might impose such a restriction.   


[1] Ecojustice is currently engaged in a lawsuit that challenges the government’s delay in developing recovery strategies for four species that could be affected by the Project.  For more information, see the Ecojustice website.

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