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.

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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.

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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.

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Environment or economy? The divergent perceptions of the purpose of environmental assessments

This blog was triggered by a recent media report that a mining company in BC was planning to sue the BC government over the refusal to issue an environmental assessment certificate for a project.  It was a reminder of the divergent perceptions of why we undertake environmental assessments (EA).

On the one side we have those (like many environmental groups) viewing EA as a tool to inform environmental decision making; a mechanism to determine whether a project should proceed.

On the other we have those (primarily activity proponents) viewing EA as a way to identify and mitigate environmental impacts of a project so that it can proceed; a mechanism to determine the relevant conditions and mitigation measures for a project.

In one scenario it is planning and decision making tool for deciding whether environmental impacts are acceptable, while for the other it is more of a regulatory hurdle or check box that precedes project approval.

The litigation in BC is not the first, nor will it be the last.  In 2007 a three member joint panel recommended against a basalt quarry at Whites Point, Nova Scotia.  The recommendations were agreed to by the provincial Minister of Environment and the project was rejected.  The company subsequently brought an action under Chapter 11 of the North American Free Trade Agreement.  (This arbitration continues, with the most recent procedural order being issued on Nov. 15, 2012).

Similarly, the Government of Alberta was unsuccessfully sued over a decision that found an activity proposed in Kananaskis Country (in 2000) was not in the public interest.   In that case, a full EA had yet to be completed.

Refusals to issue permits are typically a valid exercise of government discretion under environmental legislation, albeit sparingly used.  When governments do refuse to issue permits it may spark litigation for various reasons, from attempts to recover some funds that have been otherwise spent to meet EA requirements, to a perception that governments have acted in a biased fashion or in bad faith, insofar as the process (and the actors in it) may have created certain expectations of a positive decision.  This is not to say that a given litigation is not without merit, only to note that when governments (and tribunals) do refuse permits they are likely assessing the risks associated with being sued over the decision, something which is counterproductive when considering good environmental decisions.

Should we empathize when a project is refused?  In most instances, I would argue not, as there are plenty of examples of EA not being treated as a mechanism to earnestly discuss ways of mitigating environmental harm.  Rather the process is often a calculated effort by the proponent to minimize costs, often through proclamations that environmental impacts are insignificant.  These proclamations are often accompanied by unsubstantiated and untested (through rigorous scientific and statistical assessments) expert opinion.

One need only consider the times when a proponent, faced with a negative decision or the potential of one, shifts what is “feasible” in terms of environmental protection.  No doubt this is a reflection of proponents trying to conserve money and maximize shareholder return, but it often comes off as being disingenuous in terms of corporate claims of concern for the environment.

Several recent examples stand out including:

• rerouting of the Keystone XL pipeline around environmentally sensitive areas which was earlier reported as not being  feasible,
• reapplication for a mine that had previously been turned down, premised on avoiding impacts on a formerly expendable lake; and
• alterations to safety measures proposed as part of the Northern Gateway pipeline project.

In the end, starkly different perceptions of what EA should accomplish need to be addressed.  EA should bring science to decision making.  This science creates a cornerstone for a fulsome discussion of societal values that should go into planning, policy and project approvals.

The difficulty of course is having sufficient scientific knowledge to know current and future impacts on complex ecological systems.  In the absence of sufficient scientific knowledge deferral or refusal of projects is justified; as is the case when environmental impacts are irreparable, when biodiversity is significantly impacted or where the resilience of a system is exceeded.

The perception that economic arguments always justify the impacts of projects must end.  Granted, it doesn’t help when you get rhetoric out of the federal Minister of Natural Resources labeling those validly participating in hearings as “environmental and other radical groups” with their “radical ideological agenda”.   Such rhetoric only acts to emphasize these divergent perceptions and, more fundamentally, taints the EA process.

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Another government consultation? Why Albertans need to speak up about the new energy regulator.

Image courtesy of Victor Habbick / FreeDigitalPhotos.net

Many of you may have missed the most recent news about Alberta’s single energy regulator, just before the Family Day long weekend. The Alberta government issued a press release on Valentine’s Day, announcing 18 public consultation sessions throughout the province and an on-line survey. This initiative is intended to gather public input on the regulations to be made under the Responsible Energy Development Act, which created this new body, the Alberta Energy Regulator (AER), scheduled to begin work and decision-making June 2013.

Now, I know there are those of you who look at government consultations the same way you look at those mushroom fairy rings that keep popping up on your front lawn each summer: you can never really predict when they’re going to show up; they always seem to create more work and hassle than you expect; it usually feels like you don’t have any control over the situation; and often the effort you put into dealing with them doesn’t match the result you see. Plus, it’s the middle of another long Alberta winter; who can win against “big energy”; and have I seen how long that Responsible Energy Development Act is anyhow?? (Yes, it’s 73 pages long and I’ve read it several times – for work, not for pleasure).

Admittedly, government consultations are not things that excite most Albertans. However, below are a few reasons why you should get involved and speak up on this initiative. You don’t need to read the Act. Just think about your concerns about energy development; what you think needs to happen to ensure that energy development takes place responsibly in  our province; and most importantly, what you want your Alberta and your environment to look like in the future.

Reason #1:  This is your chance to let the government hear your concerns, thoughts and ideas about energy development, including how its activities and impacts should be regulated and managed. Energy development is a key economic engine and influence in Alberta. The provincial government hears consistently from industry operators and associations about their concerns and their ideas for solutions. You know, better than anyone, what your concerns and questions about energy development are, but the Minister of Energy and his staff aren’t mind readers. If you don’t take the chance to speak up, you won’t have the chance to be heard and the Department of Energy won’t know your issues and ideas.

Reason #2:  This consultation is your chance to influence the substance of Alberta’s new energy regulatory system. Remember the talk and news stories last fall about this Act being a “Frankenbill”? Much of the buzz arose due to uncertainty about exactly what the AER would look like, how its processes would work and how the environment and individual interests would be protected in the face of energy development. It’s probably more accurate to liken the Act to a skeleton, as it provides the bare bones that this new regulatory system will need to work. The focus of this consultation, the regulations, is putting the meat on those bare bones. The regulations will provide the details for the following matters:

• How far the AER’s responsibilities will reach, as compared to Alberta Environment and Sustainable Resource Development or other decision-makers;
• Who can be involved in the AER’s decision-making processes;
• What the AER will have to consider in making decisions;
• How the AER’s decision-making processes will work; and
• How information about energy development and the AER’s decisions will be made public.

Reason #3:  The AER will take on responsibility for many topics and issues; odds are there’s at least one that will affect you or that you’re otherwise concerned about. Looking only at the energy aspect, the AER will regulate exploration, recovery, construction (where relevant), closure and processing for:

• Oil;
• Gas;
• Oil sands;
• Coal; and
• Pipelines (within Alberta only).

The AER will also be responsible for regulating the environmental aspects of this energy development. This is equally broad:

• Environmental assessment; substance releases; contaminated land; preservation of soils and cleanup of contamination (reclamation and remediation); and authorizations for processing activities (Environmental Protection and Enhancement Act);
• Allocation of water rights; and regulation of activities affecting water (Water Act); and
• Regulation of exploration activities, such as seismic; and authorizations for activities on public land (Public Lands Act).

Can you be sure that someone else will raise the same concerns that you have? Or that they’ll suggest the same solutions that you want to see?

So, how can you participate in this consultation? One option is to engage in the structured processes set up by the Department of Energy: either by going to one of the consultation sessions being held around the province from now till mid-March, or by answering an on-line survey. More information about these processes is available here. Another option is to get your input directly to the Minister of Energy by letter, e-mail, fax or phone call. If you take this route, consider sending a copy to your MLA as well. Regardless of how you participate, if the government’s questions don’t address your concerns, take steps to ensure you make your issues and ideas are heard. This is an important initiative and no one is going to take away points if you color outside the lines.

Interested in the ELC’s views on the Responsible Energy Development Act, potential regulations and this consultation? Watch the blog for future posts in the coming weeks.

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Province seeks input on new energy regulator

Alberta Energy is seeking input on the new energy regulator created by the Responsible Energy Development Act. Public consultation sessions are being held in 18 communities around the province. They started yesterday. The official media release is here: http://www.gov.ab.ca/acn/201302/33676D9589382-F6E0-918B-3525D0EF57D1DD31.html From there you can find links to the schedule, the online survey, session registration, etc.

We’ll have more to say about this next week, but in the meantime here are a few links to relevant background and analysis:

Single Regulator or Franken-Child? (page 7)

ELC Comments on Bill 2 – Responsible Energy Development Act

Single energy regulator bill a poor deal for Alberta’s environment

And, from Ablawg: http://ablawg.ca/category/responsible-energy-development-act/

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An environmental tune to celebrate the season

Last year we had “Twas an Alberta night before Christmas” – this year is a much shorter environmental round up – sung to “Let it Snow”

 

Oh the omni-bus bills were frightful

But the PR is so delightful

And since the fish have no place to go

We’ve been snowed! We’ve been snowed! We’ve been snowed!

 

It doesn’t show signs of stopping

And funds for science, they keep on dropping

Environmental assessments are turned way down low

We’ve been snowed! We’ve been snowed! We’ve been snowed!

 

Caribou get a kiss goodnight

Now wolves hate going out in the storm!

But if EA models are proven right

The environment will be all out of form

 

Statutory rights are slowly dying

And, my dear, we’re still a crying

But as long as you love me so

We’ve been snowed! We’ve been snowed! We’ve been snowed!

 

Happy holidays everyone!

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Single energy regulator bill a poor deal for Alberta’s environment

Last week, the Alberta government introduced Bill 2, the Responsible Energy Development Act,which is intended to create aone window regulator that will “improve the energy regulation system for landowners, industry and the environment.” While this new regulator would address energy development from initial applications to reclamation, it should be noted that this is not a cradle to grave initiative, as the process of issuing mineral rights is not included.

Why is government making this change?

This move to a single energy regulator has its roots in steps the Stelmach government took seeking to ensure the competitiveness of Alberta’s energy sector. It began with a strict energy focus coming from 2010’s royalty review and competitiveness review. In the wake of those reviews, the Regulatory Enhancement Task Force was created in 2010 to oversee “regulatory improvement efforts.” The task force looked at processes and policies related to upstream oil and gas development; its recommendations to the Minister of Energy included “creating a single oil and gas regulatory body.” This is an initiative that has been expanding in scope since its creation. What started as a process examining the competitiveness of the upstream oil and gas sector has evolved to encompass creation of a new regulatory body that will address not only oil and gas recovery, but also pipelines, extraction and processing activities (including all related environmental aspects) for oil, gas, oil sands and coal resources in Alberta.

What will Bill 2 create?

Bill 2 proposes to abolish the Energy Resources Conservation Board (ERCB) and replace it with a new regulatory body named the “Alberta Energy Regulator” (the Regulator). In addition to carrying out the ERCB’s current regulatory responsibilities, the Regulator would also take on environmental regulatory responsibilities related to energy development that are now dealt with by Alberta Environment and Sustainable Resource Development. This includes regulation that takes place under:

•  Environmental Protection and Enhancement Act (environmental assessment; substance releases; contaminated land; reclamation; authorizations for industrial processing activities);
• Water Act (allocation of water rights; regulation of activities that affect water); and
• Public Lands Act (regulation of exploration activities; authorization of activities on public land).

The Regulator would be a corporation with board members appointed by the provincial Cabinet. This board of directors would be responsible for the general business of the Regulator. Bill 2 explicitly states that the Regulator is not a Crown agent. The Cabinet would also establish a roster of hearing commissioners to carry out hearings as required under Bill 2. It appears that the types of energy development matters to be regulated would remain the same and what little process is set out in the Bill draws from current energy legislation and regulation. However, most of the details of this new system are left to be set out in rules to be made by the Regulator or in regulations to be made by Cabinet. As such, it is difficult to get a clear picture of future energy and environment regulation in Alberta from the Bill alone.

What’s the ELC’s initial reaction?

From our first readings of Bill 2, it’s unclear where the environment will gain under this new system. Bill 2 appears to ignore many of the long-standing concerns and problems related to energy development and environmental protection in Alberta, such as standing and public input limitations; the separation of the mineral rights licensing process from the balance of energy, environmental and land use decision-making; and transparency and accountability concerns, including the need for independent review of regulator decisions.

While this initiative has been touted as addressing energy and environment as two sides of the same coin, it seems the coin is loaded in favor of energy. Existing environmental regulatory processes would be curtailed and limited:

•  the current standing test of “directly affected” under the Environmental Protection and Enhancement Act (EPEA)and Water Act would be changed to the narrower “directly and adversely affected” test for energy developments; and
• appeals under EPEA and the Water Act to the Environmental Appeals Board, an independent quasi-judicial body, would be eliminated for energy developments and replaced with self-reviews by the Regulator of its own decisions.

The Bill would also give Cabinet the ability to modify how environmental legislation applies to the Regulator.

In the Legislature, Energy Minister Hughes stated: “The new regulator will provide effective processes for Albertans to be heard and respected on an ongoing basis.” However, on its face Bill 2 appears to place greater limitations on public engagement and participation in environmental decision-making related to energy development. As mentioned above, the use of “directly and adversely affected” as the test for standing narrows the standing currently provided under EPEA and the Water Act; it is also inconsistent with the Kelly trilogy of cases from the Alberta Court of Appeal, which moved to expand standing in sour gas hearings. In addition, the Bill specifically excludes consideration of the adequacy of First Nations consultation from the Regulator’s jurisdiction.

We also have concerns regarding the potential transparency and accountability of the Regulator. Bill 2 specifically states that the Regulator is not a Crown agent. There is no clear accountability of the Regulator directly to the public. It will be required to report to the Minister of Energy upon request, but there is no further obligation on either the Minister or the Regulator to make such reporting public. The checks and balances on regulatory action are also limited. The ability to seek judicial review of the Regulator’s actions, as well as related legal remedies, is excluded by the Bill. Options for other review are somewhat limited: the Bill provides for two forms of self-review by the Regulator, as well as appeals on questions of law or jurisdiction to the Alberta Court of Appeal.

What happens next?

Bill 2 is now at second reading stage, which means it will be debated in relation to its broad principle. Once a bill passes second reading, it is referred to Committee of the Whole (effectively meaning the whole Legislature), where it is reviewed clause by clause and can be amended. Following this review, a bill is then put to third reading for final approval (or not) by the Legislature.  The current legislative session is scheduled to continue through the first week of December 2012. The government’s intent is to have the Regulator operative by mid-2013.

When he introduced Bill 2 for second reading, Minister Hughes indicated that the government is in the process of developing the regulations to support this legislation and stated: “This is essential work that will require feedback and consultation from Albertans to ensure we’re hitting the mark by providing for effective participation.” Given the framework nature of Bill 2 and the significant implications for our environment and all Albertans, we believe these regulations should be publicly released in draft before Bill 2 is passed, to allow all concerned parties to review and understand the proposed system as a whole.

At the ELC, we’re preparing a detailed analysis and critique of Bill 2, which will be sent to Minister Hughes and other decision-makers and made publicly available. Watch for our brief and further blog posts on Bill 2 in the near future.

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Rio + 20 = 1867? Canada’s interesting math.

On the verge of the end of Rio +20 and the passage of the federal budget bill (C-38), I felt it worthwhile to do some math.  Rio +20 is intended to move “sustainable development” into 2012 and beyond.  Yet, Canada has just referred its sweeping budget bill, which revamps our federal environmental laws, to the Standing Senate Committee on National Finance.  The drafters of the Bill, it appears, had Cher’s “If I could turn back time” blaring in the background; to a time when approaches to environmental management and understanding of species habitat requirements were rudimentary at best; to a time when our Constitution was enacted, 1867.

Bill C-38 amends one of the most protective fish habitat protection provisions in the country to a provision requiring proof that a  “work, undertaking or activity” results in a “serious harm to a fish” that is part of a commercial, recreational or Aboriginal fishery (or a fish that supports such a fishery).  (This provision come into force at a date fixed by Order in Council).  The Bill also adds a provision that guides administration of the Fisheries Act with a focus on impacts on specific fisheries.   This, in essence, is a throwback to the narrow terms of section 91(12) of the Constitution Act that provides federal jurisdiction over “Sea Coast and Inland Fisheries”.

The approach ignores the relevance of habitat and creates substantive evidentiary issues.  Specifically, rather than acknowledging the scientific linkages between protected habitat and fish  (under current legislation) the approach requires the Crown to establish (beyond a reasonable doubt) that there is “serious harm to fish” and that “harm” is the direct causal result of a work, undertaking or activity.  The provision is tantamount to saying “if the fish aren’t dying, we don’t care”.   While “serious harm” includes permanent alteration to habitat this ignores the ongoing requirements of fish for intact habitat.  Is this approach reflective of our current knowledge of ecosystems and species habitat requirements? Not quite.

Similarly, the restructured Canadian Environmental Assessment Act seeks to limit federal environmental oversight and assumes that provinces have the capacity and wherewithal to effectively manage environmental matters.  (Ignoring for the time being whether federal-provincial delegation and substitution around environmental assessments and decision making regarding “inland fisheries” is even feasible).  Again, the Bill appears to be an attempt to simply and erroneously isolate environmental impacts based on a narrow jurisdictional view and reflects a direct rejection of the scope of jurisdiction granted by the Supreme Court of Canada in Friends of the Oldman River Society v. Canada (Minister of Transport).

The RIO + 20 website notes:

Sustainable development emphasizes a holistic, equitable and far-sighted approach to decision-making at all levels. It emphasizes not just strong economic performance but intragenerational and intergenerational equity. It rests on integration and a balanced consideration of social, economic and environmental goals and objectives in both public and private decision-making.

Being “far-sighted” in one instance and joining the 19^th century in the other just doesn’t add up.   The courts of our land have done the math and have clearly indicated that Parliament has the power to manage and legislate environmental matters in a way that reflects 21st century knowledge.

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Failing Grade: New Federal Approach to Environmental Assessment Leaves Canadians at Risk and Without a Voice

West Coast Environmental Law released a report card yesterday that “measures the final content of Bill C-38 – the omnibus Budget Bill passed Monday by the House of Commons – against a checklist of principles endorsed earlier this year by over 55 Canadian organisations coast to coast representing scientists, physicians, lawyers, advocates for democracy and citizen groups.”

Click here to read the release, see the checklist and download the report.

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