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The Environmental Law Centre (ELC) has been involved with the Land Use Framework (LUF) and Alberta Land Stewardship Act (ALSA) from the beginning. Its activities have included commenting on several cumulative effect management frameworks and conducting research on this topic.

The following feedback on the draft biodiversity management framework (“the framework”) for the South Saskatchewan Regional Plan (SSRP) is relevant to the same initiative in the North Saskatchewan, further regions, and to cumulative effects management generally.

The ELC’s recommendations are based on criteria for the evaluation of cumulative effects management frameworks. These criteria are appended to this letter. The ELC has also considered feedback from the Miistakis Institute, the Oldman Watershed Council, the Alberta Wilderness Association, the Porcupine Hills coalition, and agrees with the main points of those organizations.

Summary Comments

The cumulative effects management frameworks are one of the more promising developments under the LUF as they embody a shift from the prior system and could achieve a purpose of ALSA. The biodiversity framework for the SSRP makes the significant step of recognizing the impact of land disturbance on biodiversity.

The framework includes the necessary components and reflects one best practice by endorsing choice of management actions. The monitoring approach is generally acceptable and the proposed actions include underused tools to reduce land disturbance.

However, the framework lacks most of the best practices for cumulative effects management, including:

  • measurable objectives;
  • the precautionary principle;
  • clear limits;
  • mandatory action; and
  • a focus on proactive action before thresholds are exceeded.

Without these fundamentals the technical details will matter little. Concerning the details:

  • The indicators avoids species at risk in specific sub-regions and sub-basins;
  • The thresholds are vague, complicated and unprincipled; and,
  • The management responses are mostly reactive, favor inaction, and the proposed actions receive no direct enablement from the framework itself.

The framework does not fix the current system of patchwork legislation, uncoordinated decision making, and inadequate conservation tools as intended by the LUF. Nor does it fill the provincial gap around species at risk. It actually perpetuates some negative features of ALSA and the SSRP, including: lack of substantive guidance, broad discretion, limited accountability for outcomes and limited participation in implementation. The framework is fairly concerned with causation and therefore may avoid regulatory impact on cumulative effects.  Nor does it offer regulatory certainty, support or incentives to help overcome the socio-economic barriers to cumulative effects management.

In sum, the draft framework is unlikely to achieve the environmental outcomes of the LUF. The Alberta Government needs to take a step back and imagine the use of ALSA to implement regional plans and fill gaps in the current system.  The ELC’s recommendations respond to that need.

The Environmental Law Centre (ELC) is a charity founded in 1982 to provide information, education, research and law reform services concerning environmental law.  Its mission is to champion for strong laws and rights so that all Albertans can enjoy a healthy environment.

We provide our full submission for download here: BMF ELC comments to assist other organizations seeking to provide input to government on related issues.

For more information, please visit the Alberta Land Use Framework website: https://landuse.alberta.ca/Pages/default.aspx

 

 

This is the second post in the Environmental Law Centre’s blog series exploring climate change law in Canada. This blog series will provide updates on climate change law developments and include insights from our related law reform research. This blog series is generously funded by the Alberta Law Foundation.

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At our third annual Green Regs and Ham Breakfast event in Calgary last October 2015, our keynote speaker was Julie Gelfand, Canada’s Commissioner of Environment and Sustainable Development (the CESD). At that time, Ms. Gelfand was not at liberty to discuss the CESD’s ongoing environmental audit, other than to provide a sneak peek that her report would deal with pesticides and pipelines.

The results of the CESD’s audit are now available as the Reports of the Commissioner of the Environment and Sustainable Development (collectively, the “Report”) were tabled on January 26th, 2015. The Report consists of 5 documents:

  • The Commissioner’s Perspective,
  • Report 1: Pesticide Safety,
  • Report 2: Oversight of Federally Regulated Pipelines,
  • Report 3: Departmental Progress in Implementing Sustainable Development Strategies, and
  • Report 4: Environmental Petitions Annual Report.

In the introductory remarks, the CESD highlights the “two most pressing issues of our times: climate change and sustainable development” (Perspective, page 1). Following on the themes of climate change and sustainable development, the Report looks at pesticide safety, the oversight of federally regulated pipelines, and the progress of federal departments in implementing sustainable development strategies. As well, the Report provides an overview of environmental petitions received during the audit period.

Pesticide Safety

The CESD audit considered the activities of the Pest Management Regulatory Agency (an agency of Health Canada) in administering the Pest Control Products Act. In particular, the CESD audit looked at the Agency’s use of conditional registrations, re-evaluation process, and timeliness of product cancellations. Overall, the CESD found (Report 1, page 24):

… the Agency had not always acted in a timely manner to fulfil its statutory objective of preventing unacceptable risks to the health of Canadians and the environment from use of pesticides.

A conditional registration means that one or more aspects of the risk assessment for a product are incomplete but the product is registered for use pending completion of that data. The CESD audit found that conditional registrations were often used for lengthy periods of time without review and assessment of required studies. The CESD audit found that the Agency never exercised its authority to cancel a conditional registration when a registrant failed to meet conditions. As well, the CESD found that the Agency failed to maintain a complete public registry of conditional registrations.

The CESD found that the Agency failed to make sufficient progress in completing re-evaluations of older pesticides as required by the Pest Control Products Act. As indicated by the CESD, re-evaluations are important for ensuring that human health and environmental risks remain within acceptable limits according to current scientific knowledge. Further, the CESD found that the Agency had failed to consider cumulative health effects when required in the re-evaluations.

Finally, the CESD found that the Agency failed to cancel the registrations of some pesticides that were deemed to have unacceptable risks. According to the CESD, the failure to cancel registrations in a timely manner means that workers, the public and the environment were exposed to unacceptable risks for a longer period of time than necessary.

Oversight of Federally Regulated Pipelines

The CESD audit uncovered some significant issues with the National Energy Board (the “NEB”)’s oversight of federally regulated pipelines. In particular, the CESD audit found that the NEB:

  • does not always adequately track whether companies satisfy pipeline approval conditions,
  • has gaps in its follow-up on company non-compliance with regulatory compliance,
  • has a lack of transparency with respect to pipeline approval conditions (although public access to information about companies’ compliance with regulatory requirements has improved),
  • needs to improve its emergency preparedness, and
  • has human resource capacity challenges.

As stated in the Report (Report 2, page 24):

…the Board needs to do more to effectively adapt and evolve to keep pace with pipeline project proposals, the corresponding public interest and expectations, and recent regulatory changes …

… the Board did not adequately track company implementation of pipeline approval conditions, or consistently follow up on deficiencies in company compliance with regulatory requirements.

As indicated by the CESD, these issues are significant because effective oversight of whether a company meets approval conditions and regulatory requirements are important to reduce the risk of non-compliance and to protect the safety of Canadians and the environment. Further, public access to information is essential to transparency and accountability, and to building public confidence in the NEB. The CESD also notes that emergency preparedness is important because pipeline incidents can lead to significant environmental damage and potential harm to humans.

Departmental Progress in Implementing Sustainable Development Strategies

The CESD audit considered the progress of four federal departments – Agriculture and Agri-Food Canada, Canada Revenue Agency, Canadian Heritage and Department of Fisheries and Oceans – in implementing sustainable development strategies. In particular, the CESD audit looked at the application of the Cabinet Directive which requires environmental assessment of proposed policies, plans, or programs when presented to Ministers. In other words, a department must advise its Minister of potential environmental effects for proposed policies, plans, or programs that are submitted.

The CESD found that none of the departments made satisfactory progress in meeting their commitments to strengthen strategic environmental assessment process. There was inadequate application of the Cabinet Directive and inadequate reporting on extent and results of strategic environmental assessment practices.

Environmental Petitions

An environmental petition process has been established under the federal Auditor General Act. The environmental petitions process allows any Canadian resident (either individually or on behalf of an organization) to bring environmental concerns to the attention of the federal government. An environmental petition is submitted to the Office of the Auditor General who forwards the petition to the appropriate Ministry. The Minister is required to respond to an environmental petition within 120 days of its receipt.

Within the audit period covered by the Report, 15 environmental petitions were submitted. The main themes of the petitions reviewed were governmental commitment to implementing its policies and governmental transparency. The CESD audit found that most responses were timely, complete and relevant. As stated by the CESD (Report 4, page 11), the environmental petitions process “continues to provide Canadians with an opportunity to directly request information and answers from federal ministers and ask for commitments to action.”

Promised Progress for Pesticides and Pipelines

Given the results of the CESD audit, there are clearly concerns with the federal oversight of pesticides and pipelines in Canada. With respect to pesticides, the Pest Management Regulatory Agency’s response to each of the CESD’s findings and recommendations can be found in the Report. The Agency has indicated that it intends to develop options to eliminate the use of conditional registrations, to put a methodology for cumulative risk assessment in place, and to improve its transparency and public communication.

With respect to pipelines, the NEB’s responses to each of the CESD’s findings and recommendations can be found in the Report. In addition, after release of the report, the federal government put interim principles into place (see the press release) to guide the Government of Canada’s discretionary decision-making processes with respect to pipelines. The federal government’s discretionary decision-making process arises after the NEB has conducted a pipeline hearing and has made recommendations to the federal Cabinet which gives final approval or denial of the pipeline. These interim principles are:

  • no project proponent will be asked to return to square one – project reviews will continue under the current legislative framework,
  • decisions will be based on science, traditional knowledge and other relevant evidence,
  • views of the public and affected communities will be sought and considered,
  • meaningful consultation of indigenous people and, where appropriate, impacts rights and interests will be accommodated, and
  • direct and upstream greenhouse gas emissions linked to projects under review will be assessed.

While these interim principles do provide some progress on pipeline decision-making, the ELC would like to see legislative changes to directly amend and improve the NEB process. This includes removal of the public participation restrictions and decision timelines that were put into place with the 2012 omnibus bills (see our posts on the omnibus bills here and here). Given the federal government’s statement that these are interim principles, the ELC looks forwards to fulsome consultations wherein the changes made to the NEB process and federal environmental assessment laws are revisited and a path to sustainability is forged.


This is the first post in the Environmental Law Centre’s new blog series exploring climate change law in Canada. This blog series will provide updates on climate change law developments and include insights from our related law reform research. This blog series is generously funded by the Alberta Law Foundation.

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While still in its infancy in Canada, climate change litigation is likely to become an increasingly important point of legal consideration (especially as governments give increased attention to climate change issues and as climate change impacts begin to manifest).

In Voters Taking Action on Climate Change v. British Columbia (Energy and Mines), the B.C. Supreme Court considered a challenge to administrative decisions based on climate change considerations. In this case, a public interest group (Voters Taking Action on Climate Change (VTACC)) sought review of the decisions which allowed expansion of a coal handling and storage facility.

The primary ground of the VTACC’s challenge was that the Chief Inspector of Mines lacked jurisdiction to issue the amending permit in issue. Rather, the VTACC argued that the Minster of Energy and Mines had jurisdiction to issue the amending permit but erroneously declined to exercise her jurisdiction. As a secondary ground, the VTACC challenged the decisions on the ground that the requirements of natural justice and procedural fairness were breached.

The VTACC indicated that it was opposed to expansion of the facility because the facility was part of integrated plan to increase thermal coal exports from B.C. thereby significantly increasing greenhouse gas emissions (para. 36). The Court noted that the VTACC devotes considerable time, energy and resources to advocacy and education about B.C.’s coal export plans. Ultimately, however, the VTACC was not successful in its bid to have the decisions struck.

The VTACC argued that it ought to be granted public interest standing as it met the necessary requirements. Public interest standing allows a person to bring legal action to protect a matter of public interest even though that person is not directly affected by the matter. In order to be granted public interest standing, the person must raise a serious justiciable issue, have a genuine interest in the action, and the action must be a reasonable and effective means to bring the case to court.

The Court determined that the VTACC should not be granted standing to challenge the government’s decisions because it did not raise a serious justiciable issue (para. 59):

Applying my discretion in the manner directed by the Supreme Court of Canada, I find that the defined issue does not raise a sustainable constitutional issue or one of such public importance that it transcends the interests of those directly affected. It does not address the area of advocacy that VTACC says it represents: urging governments to take meaningful action to address climate change …

The Court found that it would be a poor use of judicial resources to litigate the matter given that the case is limited to review of the decision of the Chief Inspector of Mines and the determination the Minster of Energy and Mines, neither of which are issues of public importance or engage the broader issues of climate change (para. 65). As the Court stated (para. 58):

The issue that is at the centre of VTACC’s advocacy efforts concerning whether the province ought to be authorizing coal projects at all, is not an issue raised by the Mines Act application or the request for exemption under the EMA, even though VTACC perceives a link between the decision of the Chief Inspector and its broader climate change concerns.

In making its decision, the Court also noted that the VTACC did not represent any local resident or the Sliammon First Nation. Given that the Court determined that the VTACC should not be granted public interest standing, the matter was ended. Despite its determination on standing, the Court went on to find that, in any event, the government’s decisions were reasonable and that there was no breach of procedural fairness.

As discussed, the Court found that the particular facts of this case do not engage the broader issues of climate change so as to allow public interest standing. However, a possible implication of the Court’s decision is that the door remains open to allowing climate change concerns to support public interest standing in the future in the right circumstances. [A similar view is expressed by Zoe Thoms in Climate Change & Public Interest Litigation: Voters Taking Action on Climate Change v. British Columbia (Energy and Mines), December 9, 2015 available online at http://energyinsider.ca/index.php/climate-change-public-interest-litigation-voters-taking-action-on-climate-change-v-british-columbia-energy-and-mines/].

A more detailed look at climate change litigation in Canada can be found in the ELC’s paper Judicial Notice of Climate Change (available on the CIRL website here). Our paper explores U.S., Canadian and International cases which took judicial notice of climate change science. Judicial notice is a procedural mechanism that allows courts to accept uncontroversial facts without requiring evidentiary proof.

Although climate change litigation remains relatively novel in Canada, there are already examples of the courts taking judicial notice of climate change science. For instance, the Federal Court in its Syncrude Canada Ltd. v Attorney General of Canada decision observed:

[paragraph 83] … there is a real evil and a reasonable apprehension of harm in this case. The evil of global climate change and the apprehension of harm resulting from the enabling of climate change through the combustion of fossil fuels has been widely discussed and debated by leaders on the international stage. Contrary to Syncrude’s submission, this is a real, measured evil, and the harm has been well documented.

In our view, as climate change litigation accelerates in Canada “the courts should remain alert to the fact that significant scientific consensus on the existence, mechanisms and impacts of climate change is already reasonably established” (Judicial Notice of Climate Change paper at page 11).

A Solstice Jingle

A light-hearted look back at 2015 is in order. (This time to “Jingle Bells” – nice and short to keep with solstice. This blog may be the counter point to my 2012 blog).

 

Dashing to the polls

In a three horse federal race,

Over to selfies we go,

Laughing all the way

Suppression of science sloughed

Making spirits bright

Oh what fun it is to sing

A climate song tonight

 

Oh omnibus, omnibus

Protections they did slay

Oh what fun it is to see a future for EA – hey

oh, COCO2

Deciding who will pay

Bring the PV over and we’ll have a “sunny way”.

 

Dashing to the polls

In a three horse provincial race

Over the left we go

Castle wins the day

Carbon taxes ring

Renewables – so bright

Oh with fun the panel would sing

A climate plan tonight

 

Oh AER, AER

Best in class we pray,

Oh what fun it is to pine for monitoring capacity, hey

Coal phase out, coal phase out,

Let’s stay above the fray,

Oh what fun it is to work on environmental policy, hey.

 

Merry Christmas, Happy Holidays and Happy New Year.

Water Conservation Trust of Canada v Alberta (Environmental Appeals Board), 2015 ABQB 686.

In 2010 the Water Conservation Trust of Canada applied under the Water Act to have a licenced allocation of water transferred to the organization for “habitat enhancement, recreation, fish and wildlife management and water management”.  (Note: Transfers of water allocations are only permitted in certain parts of the province.)

The government refused to allow the transfer citing the fact that only the government can hold licences for the maintenance of water levels or flows in support of a water conservation objective under the Act.  The government’s decision was appealed to the Alberta Environmental Appeals Board (EAB) which recommended that the Minister confirm the government’s decision.

The EAB decision was appealed to Alberta Court of Queen’s Bench resulting in a recent decision confirming the EAB’s interpretation of the Water Act.  In relation to issuing instream licences to non-government entities the court notes:

There is nothing to indicate any variance whatsoever from the Crown’s vested rights in the water under s.3(2).  Licensing, other than to the Government, must engage a diversion of water where the operation of a works (such as a dam or canal) or otherwise.  Nothing in the words used contemplates a licence to a person under s.51(1) where the water remains undiverted in situ.

The court further observed (in obiter) “it is not unreasonable to conclude that the absence of a diversion of instream water, regardless of the end purpose in support of a water conservation objective, would disqualify the application of any licence other than the Government under s.51(2)”.

The decision provides added clarity about the Water Act but it also leads us to an unwelcome conclusion about management of environmental flows:  Alberta lacks both law and policy to engage Albertans (and water trusts that they might support) in restoring and maintaining environmental flows in a way that attracts legally enforceable priority over other water diverters.

In effect, managing and protecting instream flows is reliant solely on the exercise of government discretion to seek out senior licences to transfer to an instream licence.  Alberta needs an alternative approach to foster partnerships in instream flow restoration and maintenance.

To this end, the ELC recommends adopting policy similar to that used in other jurisdictions: policy focused on engaging citizens and non-government organizations (like water trusts) in identifying and facilitating water transfers  to support fisheries and aquatic habitats.

The approach maintains government discretion and maintains that instream licence will be held by government.  This policy adjustment (see Figure 1) would create the flexibility to allow Albertans to pursue targeted efforts in finding licence holders, nominating environmental flows and assisting in transfers of water allocations that would be legally protected as a government issued licence. This approach enables a win-win partnerships between government and civil society to restore and maintain environmental flows.  It also would reflect a clear policy intent on the part of government to enable and accept transfers for the specified environmental purpose.

Figure 1: Recommended Environmental Flow (EF) Transfer PolicyEFTP_ELC

To expand the figure see EnvironmentalFlowTransferPolicy_ELC

For a more detailed review and recommendations on managing environmental flows see ELC’s In Water we Trust:  Engaging Albertans in Restoration and Maintenance of Environmental Flows.

 

We are pleased to announce that Josephine Victoria Yam, the Executive Director of the Environmental Law Centre (Alberta), has been selected as one of 40 Energy Futures Lab Fellows. These Fellows are leaders from across Alberta’s energy system who are charting the course towards shaping a new energy future for Alberta. The EFL is designed and facilitated by The Natural Step Canada in collaboration with Suncor Energy Foundation, the Banff Centre, and Pembina Institute. Each of the Fellows bring a particular viewpoint representing a diverse set of interests including government, ENGOs, energy industry, academia, First Nations and community groups. What unites these leaders is an understanding of the need to move towards a new energy system for Alberta characterized by sustainability, resilience and innovation. Read more here…

http://bit.ly/EFLFellows

The Alberta Government released its long anticipated Climate Leadership Plan yesterday. The policy is based upon the recommendations made by the Climate Change Advisory Panel Report and focuses on four key areas for further development:

  • implementing a new carbon price on greenhouse gas (GHG) pollution,
  • phasing out coal-generated electricity and developing more renewable energy,
  • legislating an oil-sands emissions limit, and
  • employing a new methane emission reduction plan.

Carbon pricing forms the “backbone of [the] proposed architecture” (Report, page 5). In this regard, the Alberta Climate Leadership Plan will impose a carbon tax of $20 per tonne starting in January 2016 which will increase to $30 per tonne in January 2018. The carbon tax will be applied across all sectors in a manner similar to the systems used in Quebec and California (and soon in Ontario).

The revenue derived from the carbon tax will be used for defined purposes that are designed to reduce GHG pollution. These include offsetting impacts on low and middle income households, supporting the transition needs of workers and communities, investing in complimentary policies designed to reduce emission intensity, and providing fiscal capacity for other government priorities including infrastructure.

Another key element of the Climate Leadership Plan is to phase out coal-fired electrical generation by 2030. The goal is to replace two-thirds of this electrical generation capacity with renewable energy and one-third with natural gas. In the meantime, coal-fired generators will be subject to the $30 per tonne carbon tax on emissions above those created by Alberta’s cleanest natural gas-fired plant producing the same amount of electricity.

The Climate Leadership Plan also includes a transition to performance-based standards and a legislated limit to oil-sands emissions. This means that the $30 per tonne carbon tax will be applied to oil sands facilities based upon the results already achieved by high performing facilities. Further, an annual limit of 100 Mt from the oil-sands sector will be imposed by legislation.

Recognizing the significant climate change impact of methane, the Climate Leadership Plan seeks to reduce methane emissions from oil and gas operations by 45% by 2025. This will be achieved by applying new emissions design standards to new oil and gas operations. As well, action will be taken to address the emissions arising from venting and flaring, and fugitive emissions from existing facilities.

We note that, in addition to those items adopted in the Climate Leadership Plan as described above, the Report discusses the importance of energy efficiency and energy-resilient communities and recommends that a provincial energy efficiency and community-based energy program be developed (page 8-9, Report). We hope that this recommendation will also be adopted as part of Alberta’s Climate Leadership Plan. Further, we note there likely will be a need to develop policy designed to facilitate climate change adaptation.

However, overall, the ELC is pleased that the Climate Leadership Plan takes a robust, ambitious and multi-pronged approach to reduce GHG emissions across all sectors.

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