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…


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.

The Final Report entitled Listening, Learning, and Leading: A Framework for Regulatory Excellence was released in late October. It was prepared pursuant to the Alberta Energy Regulator (AER)’s Best-in-Class Initiative conducted by the University of Pennsylvania through its Penn Program on Regulation to assist the AER in developing the tools and framework needed to become a best-in-class regulator.

Our October 20, 2015 post provided an overview of the executive summary of the report. Essentially the Final Report identifies three core attributes of regulatory excellence: utmost integrity, empathic engagement and stellar competence. It concludes that an excellent regulator must exhibit these core attributes in its traits as an organization, in its actions, and in the outcomes of its actions.

Now that the Final Report has been released, there needs to be consideration of how the framework outlined will be specifically applied in Alberta. In fact, the Final Report itself states that it is not intended to provide a specific action plan for the AER and additional work is needed to:

  • operationalize the attributes and tenets of excellence,
  • identify and develop concrete methods and practices for the collection of data needed for measuring its performance on the specific attributes the AER has selected for priority,
  • measure current level of performance against the attributes and determine the causes of gaps between current performance and desired performance,
  • implement management and operational steps designed to improved performance, and
  • continue appropriate engagement with experts and members of the public on all the above steps.

We agree that additional work is required. In particular, work is needed to address concerns that have been raised with the ability of AER (and its predecessors) to contribute to public dialogue around environmental concerns associated with oil and gas development. Many of these concerns are discussed in the ELC’s Roadmap for Reforming “The Public Interest” for the ERCB and NRCB.

The Final Report references the need for “commitment to the public interest” as one of the tenets of regulatory excellence. However, historically the “public interest” test is open-ended and undefined, and gives broad discretion to the decision-maker. There is a tendency to use public interest to justify decisions without clear discussion of the varying factors contributing to public interest and an inclination to allow economic interests to dominate.

Another concern is the existence of policy vacuums. That is, the absence of overarching energy and land-use policies which set out how social and environmental benefits can be achieved alongside economic development. The Final Report states that an excellent regulator needs to take steps to fill regulatory gaps (page 18):

The regulator may first look for at least partial solutions for which it does possess clear authority to implement. While still being respectful of the legislature that established it, the excellent regulator may also try to promote awareness within government—and perhaps also in the larger public—seeking to use persuasion and moral authority to affect change. In such an educative role, the regulator may try to bring along other parts of government, persuading them to clarify laws or close policy gaps. In exceptional or emergency situations, time may not allow for such persuasion and, after careful deliberation, the regulator may need to be prepared to take action on its own, accepting fully whatever legal risks might subsequently arise.

Too often, the absence or ambiguity of policy direction is used to justify a “business as usual” decision rather than encouraging public dialogue on broader social or environmental issues. We encourage the AER to seek to have identified policy gaps filled by provincial decision-makers or to take leadership by creating public dialogue on those policy gaps.

Additionally, the legislative mandate of the AER enables it to “fill” policy gaps with its own decision-making (on both a rule and policy level and on an application basis). Section 2 of the Responsible Energy Development Act clearly gives the AER a mandate to regulate the protection of the environment and to provide for efficient, safe, orderly and environmentally responsible development of energy resources. Increased transparency in policy direction and decision-making is a key to the AER achieving its goal of regulatory excellence.

The Final Report points out that most regulators underestimate the fundamentally social nature of regulation. Regulatory excellence demands stellar competence, confidence boosting integrity and empathic forms of engagement. However, most regulators focus on technical competence. As stated in the report, “[t]he excellent regulator, in the end, will be the one that listens, learns and leads” (page 72).

We would like to see the AER come to grips with the social nature of regulation by improving its transparency and communication with the public. This requires decision-making that clearly demonstrates consideration of social and environmental benefits alongside economic considerations. Decision-making – both on a broad policy basis and an individual application basis – must be transparent and fully engaging of the public.

One step in this direction is to move away from the historic approach limiting participation in regulatory proceedings to only those persons who are directly and adversely affected. Instead the AER should grant standing to participate to those parties representing a public interest (such as environmental and community groups). More information on public interest standing is available in the ELC’s brief on Standing in Environmental Matters.

Another step in this direction is the institution of mechanisms to ensure the AER is not developing its rules and policies without involvement of all stakeholders. This might include publication of stakeholder meetings with the AER to develop rules and policies, early involvement of all stakeholders (industry, environmental and First Nations) in development of rules and policies, and enhanced accessibility to information.

If you are interested in this initiative, more information (including a number of related research papers) can be found at The Penn Program on Regulation website. The AER also maintains a web page dedicated to this initiative at http://www.aer.ca/about-aer/spotlight-on/best-in-class-project.

When we think of protecting Alberta’s landscapes there are a variety of tools that are quite well understood and used: parks on public land, conservation easements on private land.  The Alberta Land Stewardship Act (ALSA) greatly added to the conservation tool box by providing a variety of legal mechanisms to plan and manage for conservation purposes.

In particular conservation directives demands more exploration and consideration.  As a mechanism to manage and restrict land use, conservation directives could be lumped together with the ALSA provisions that were pilloried by those concerned by incursions on private property rights.   It need not be so however, as there are opportunities to pilot the directives on public land, with municipalities, and with land owners in a voluntary fashion.

The ELC report, Conservation Directives: an unknown and untested toolidentifies some potential pilot projects to stretch the wings of conservation directives.  The report also outlines the key legal aspects of the directives and identifies the need for regulations to guide their use.

On public land “conservation directives” may be likened to a municipal “direct control district”, a tool to clearly manage land development for conservation outcomes.   For municipal planning, conservation directives may be a good voluntary way to manage around key ecological, hydrological or aesthetic attributes.

The directives also offer planners and landscape managers an opportunity implement cumulative effects management.  Conservation directives are a potent yet flexible conservation tool that can be embedded in regional plans and it is time we test their potential.

See Environmental Law Centre, Conservation Directives: an unknown and untested tool

This post provides an overview of the Liberal environmental platform which can be read in its entirety in the document entitled Real Change: A New Plan for Canada’s Environment and Economy.

According to its platform on environmental matters, the new federal Liberal government will be focused on “creating clean jobs to grow the economy” and “protecting the environment while growing the economy”. The Liberal environmental platform centers on six issues:

  • climate change,
  • investment in clean technologies,
  • creation of clean jobs and investment,
  • restoration of credibility to environmental assessments,
  • preservation and promotion of national parks, and
  • protection of freshwater and oceans.

The Liberal environmental platform places most of its emphasis on climate change and environmental assessment issues. In fact, the priority of climate change issues on the new government’s agenda is reflected by the appointment of a Minister of Environment and Climate Change.

Climate Change

The Liberal environmental platform contains a commitment by the Prime Minister to attend the upcoming Paris Climate Change Conference in December, along with an invitation to all Canadian Premiers. After the Climate Conference, the new government promises to hold a First Ministers meeting within 90 days to create a framework to combat climate change. Central to the national framework will be the creation of national emissions-reduction targets.

The new government has indicated its intention to lead, create conditions and provide support needed to meet Canada’s climate targets. This includes ensuring that provinces and territories have adequate tools to design their own policies to meet these commitments (including their own carbon pricing policies) supported by targeted federal funding. On this note, the ELC would also like to see the federal government offer its leadership and support to municipal GHG reduction programs implemented on a local scale.

The new government will also work on a North American clean energy and environment agreement with the United States and Mexico. This agreement will include continental coordination of climate mitigation and resilience policies, and alignment of international negotiation positions.

Restoring Credibility to Environmental Assessments

The Liberal environmental platform emphasizes the need for a comprehensive, timely and fair environmental assessment process. The Liberal government indicates that it will replace the previous government’s changes to the federal environmental assessment process. The new federal environmental assessment process will provide:

  • robust oversight of areas under federal jurisdiction without duplication,
  • science based decisions,
  • meaningful public participation,
  • require proponents to use best available technology to reduce environmental impacts, and
  • include analysis of upstream impacts and GHG emissions.

With regard to reform of the federal environmental assessment process, see the ELC’s A Model Environmental and Sustainability Assessment Law. An effective planning tool seeks not only to reduce potential negative environmental impacts of proposed projects but rather to determine the alternative that will make a positive contribution to sustainability. Further, environmental and sustainability assessment must be expanded beyond traditional project-based assessment to encompass regional and strategic assessment. While we agree that duplication should be avoided, the ELC endorses multi-jurisdictional environmental and sustainability assessment (i.e. where appropriate federal, provincial and aboriginal governments must be involved in the process).

In addition to review and reform of the federal environmental assessment process, the Liberal environmental platform promises to undertake a full review of regulatory laws, policies and operational practices, in full partnership with First Nations, Inuit and Metis peoples. This includes a review of recent changes to the Fisheries Act and the Navigable Waters Protection Act, and improved protection of endangered species.

Given the significant changes made to federal environmental laws in recent years (see our past posts: here, here, here, here and here) the ELC would definitely welcome a review of regulatory laws, policies and operational practices. It is imperative that such a review occur in a transparent, participatory manner allowing input from all concerned stakeholders.

Freshwater, Oceans and National Parks

The Liberal environmental platform promises to increase the level of protected freshwater, oceans and lands in Canada. In particular, there is a promise to development of a road map to meet Canada’s international commitment to protect 17% of our land and inland waters by 2020. This is accompanied by promise to increase science spending and restrict development in Canada’s national parks. Similarly, the amount of protected marine and coastal is promised to be increased to 5% by 2017 and 10% by 2020. As well, funding to government freshwater and ocean science (including new investments in the Experimental Lakes Area) will be restored.

Investment in Clean Technology and Creation of Clean Jobs

In its environmental platform, the Liberal government promises investment in several natural resource sectors to support sector-specific strategies for innovation and clean technologies. The sectors identified are forestry, fisheries, mining, energy and agriculture. In addition, there is promised investment in clean technology producers.

The Liberal government promises establishment of a Canada Green Investment Bond to support renewable energy projects. There also will be consultation to determine ways to enhance scientific research and experimental development tax credits, along with other tax measures, to generate more clean technology investment.

A Glimpse into the Future

An interesting “to-do list” has been developed by Elizabeth May (Fixing what Harper broke: A to-do list for the incoming government) and includes several items relating to the environment. These include restoration of several institutions that support science and environmental decision-making (including the National Round-Table on Environment and Economy); restoration of federal environmental laws (such as Fisheries Act, Species at Risk Act and the Navigable Waters Protection Act); strong commitments to climate action; and attention to the ecological integrity of national parks.

The Liberal environmental platform offers promise for stronger federal environmental laws and a commitment to climate change action. The challenge lies in transitioning from an electoral platform to operational policy. The ELC looks forward to participating in this process while championing strong environmental laws and rights so all Albertans can enjoy clean air, clean water and a healthy environment.

Comm JG RemarksThe ELC hosted its third annual Green Regs and Ham Breakfast event to a sold-out crowd in Calgary at the University of Calgary downtown campus earlier this month. Our event featured Julie Gelfand – Canada’s Commissioner of Environment and Sustainable Development – as our keynote speaker. We were also joined by panelists Nigel Bankes (Faculty of Law, University of Calgary), Gordon Lambert (GRL Collaboration for Sustainability and Member of the Alberta’s Climate Change Strategy Panel) and Ben Thibault (Director of Electricity Program, Pembina Institute).

It was a very lively and timely discussion on what Canada and Alberta need to do to show their strong climate commitments in view of the upcoming Paris Climate Conference in December 2015. This global event has been touted as the “world’s last best chance to reach an agreement on cutting carbon emissions” (see January 1, 2015 Editorial in The Guardian available at http://www.theguardian.com/commentisfree/2015/jan/01/ghttp://www.theguardian.com/commentisfree/2015/jan/01/guardian-view-paris-2015-last-best-chance-emissions-cutuardian-view-paris-2015-last-best-chance-emissions-cut).

Highlights of Commissioner Gelfand’s Comments

In her capacity as Federal Commissioner of Environment and Sustainable Development (CESD) in the Office of the Auditor General, Julie Gelfand provides parliamentarians with objective, independent analysis and recommendations regarding the federal government’s management of environmental and sustainable development issues. Our summary of the most recent 2014 CESD Report is available at https://environmentallawcentre.wordpress.com/2014/10/20/is-canada-prepared-to-meet-the-challenges-of-the-future/.

At our breakfast event, Ms. Gelfand discussed two significant highlights of the 2014 CESD Report: oil sands monitoring and climate change mitigation. On the topic of oil sands monitoring, Ms. Gelfand noted that the monitoring programs are generally on time and on budget. However, she noted that the federal government needs better engagement with stakeholders including First Nations in the region. As well, integration of the various type of monitoring being conducted (air, water and wildlife) is lacking and must be improved.

On the topic of climate change mitigation, Commissioner Gelfand found that Canada will definitely miss its 2020 emission targets under the Copenhagen Accord. Further, while some regulations have been put into place, Ms. Gelfand pointed out that other regulations that the Federal government promised have not materialized, notably its greenhouse gas reduction regulations dealing with the oil and gas sector and with specific industries such as pulp and paper. The Commissioner has recommended that the Federal government create detailed strategies of its measures and timelines. As well, she recommended that it provide regular assessments and reporting on its climate change actions.

Although Ms. Gelfand was not at liberty to discuss the CESD’s ongoing environmental audit, the audience did get a sneak peek at upcoming topics of its 2015 CESD Report. In December 2015, the CESD will look at pipeline safety and the National Energy Board’s role in pipeline regulation, and at pesticide regulation (especially neonicotinoids). In Spring 2016, the CESD will be reviewing topics relating to sustainable communities, adverse weather, and consumer products.

Speakers on Stage Q&AHighlights of our Panelists’ Comments

Nigel Bankes, Gordon Lambert and Ben Thibault had the opportunity to share their thoughts on what Canada and Alberta need to do to show their strong climate commitments in view of the upcoming Paris Climate Conference in December 2015.

The panel discussion opened with the comments of Nigel Bankes, a professor at the University of Calgary, Faculty of Law. Professor Bankes described the federal approach to climate change mitigation as “delay, delay, delay”. It is clear that the federal government has no coordinated plan to meet its 2020 greenhouse gas reduction commitments under the Copenhagen Accord. There has been a lack of transparency in the development of greenhouse gas regulations and in distinguishing greenhouse gas reductions arising from economic slowdown versus concrete, positive actions to actually reduce emissions. There has also been a lack of commitment to learning for the purposes of developing future climate regulatory frameworks.

Professor Bankes stated that Canada has “zero” credibility in the climate file because it has failed to develop any credible plans to meet its greenhouse gas reduction commitments to the Kyoto Protocol, from which Canada eventually withdrew. Likewise, despite Canada’s submission of its Intended Nationally Determined Contributions (see http://www4.unfccc.int/submissions/indc/Submission%20Pages/submissions.aspx), Canada has no clear and comprehensive plan to meet its 2020 targets under the Copenhagen Accord or its 2030 greenhouse gas reduction targets.

Canada needs to make a credible commitment to GHG reduction and climate change mitigation.  In order to meet its GHG reduction targets, Alberta requires transparency, cost-effectiveness and a system designed to avoid gaming. All these requirements would be better addressed with a carbon tax than with a cap and trade approach.

Gordon Lambert, with the GRL Collaboration for Sustainability and a member of Alberta’s Climate Change Strategy Panel, brought our attention back to the important work of the Brundtland Commission. He reminded us that we should not overlook the interdependence of environment, economy and social factors in sustainable development.

Mr. Lambert observed that, when faced with daunting challenges, our society often reverts to creating opposing forces and silos. In this regard, Mr. Lambert cited the innovative work of COSIA which aims to break down traditional silos by sharing technologies and intellectual property to reduce the environmental impacts of oil sands development (for more about COSIA, see https://www.cosia.ca/).

Finally, Mr. Lambert noted that a clean energy transition in Alberta is necessary because its past energy choices were made when climate change wasn’t on the radar screen.

Ben Thibault, Director of Electricity Program at the Pembina Institute, provided a very thematic discussion of green regs (climate regulations) and ham (a“pig”ouvian carbon tax). He stated that the climate change challenge of both the Federal and Alberta governments will be addressed with a combination of carbon pricing, renewable energy development and reduction in fossil fuel dependency.

Mr. Thibault criticized the current federal sector-by-sector regulatory approach to greenhouse gas reduction as being ineffective. The only sectors addressed thus far have been vehicle emissions (which Canada has little control over because there is an integrated North American approach) and coal-fired power plants (which will do little to reduce coal dependency). Mr. Thibault stated that this is not an effective and workable approach for Canada to achieve genuine greenhouse gas reductions.

GR&H Large Audience3

After the presentations, Commissioner Gelfand and the panelists participated in a lively and engaging Q&A discussion with the audience.

Remember… Unless someone like you cares a whole awful lot, nothing is going to get better. It’s not.

The Lorax, Dr. Suess

A huge thank you to our distinguished speakers, to our sponsors and, of course, all our wonderful supporters for caring a whole awful lot. See you next year for another hearty serving of green regs and ham!

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