Category: Energy Page 34 of 55

Uncertainty and Indigenous Consent: What the Trans-mountain decision tells us about the current state of the Duty to Consult.

Case Commented On: Tsleil-Waututh Nation v. Canada (Attorney General) 2018 FCA 153

In a highly anticipated decision on the proposed Trans Mountain Expansion Project (“TMX”), the Federal Court of Appeal (“FCA”) quashed federal approval of the project. The Court did so on two grounds.

First, it held that, while the National Energy Board’s process and findings were largely acceptable, the Board made a “critical error” in not including “Project-related tanker traffic” as a formal part of its environmental assessment under Canadian Environmental Assessment Act, 2012 SC 2012, c 19, s 52 (CEAA, 2012). As a result, “the Governor in Council could not rely on the Board’s report and recommendations when assessing the Project’s environmental effects and the overall public interest” (Tsleil-Waututh, at para 5). For more on this aspect of the decision, see Martin Olszynski’s post.

Second, the FCA held that the federal government failed to discharge its constitutional obligation to consult and accommodate Indigenous peoples. At ‘Phase III’ of the consultation process, the FCA held, the government failed to “engage, dialogue meaningfully and grapple with the real concerns of the Indigenous applicants so as to explore possible accommodation of those concerns” (Tsleil-Waututh, at para 6).

This post focuses on the consultation aspect of the judgment. The decision is helpful insofar as it illustrates important limitations of the duty to consult doctrine. I address two of those limitations, which I argue are closely linked: 1) the lack of a legal obligation to obtain Indigenous consent for development projects and 2) the ongoing uncertainty created by the doctrine of the duty to consult..

Federal Court of Appeal Quashes Trans Mountain Pipeline Approval: The Good, the Bad, and the Ugly

By Martin Olszynski

On September 6, 2018

In Energy, Environmental

By: Martin Olszynski

PDF Version: Federal Court of Appeal Quashes Trans Mountain Pipeline Approval: The Good, the Bad, and the Ugly

Case Commented On: Tsleil-Waututh Nation v. Canada (Attorney General) 2018 FCA 153

Last Thursday, the Federal Court of Appeal released its decision in Tsleil-Waututh Nation v. Canada (Attorney General). Those following Canada’s contentious pipeline debate will know that this was the primary legal challenge to Kinder Morgan’s certificate of public convenience and necessity (CPCN or certificate) for its Trans Mountain Expansion Project (TMX) (for a series of related ABlawg posts, see here). The Federal Court of Appeal quashed the CPCN on two grounds: first, the Court held that the National Energy Board’s (NEB) decision to exclude the increased marine traffic associated with the project from the environmental assessment (EA) conducted pursuant to the Canadian Environmental Assessment Act, 2012 SC 2012, c 19, s 52 (CEAA, 2012) was unreasonable; and second, Canada did not adequately discharge its constitutionally-rooted duty to consult and accommodate affected Indigenous peoples. This post focuses primarily on the first ground, although as will be seen the two are related. As further discussed below, the Federal Court of Appeal’s analysis with respect to marine traffic appears to be on solid footing (the Good). More problematic is the Court’s approach to the reviewability of EAs generally (i.e. the ability to challenge such reports in court) (the Bad). Most problematic, however, has been the decision’s reception and distortion by various groups and individuals to make various claims that the decision simply does not substantiate (the Ugly).

Public Interest Standing for NGOs to Test Whether CNLOPB can Effect an End-Run Around Maximum Term Provisions

By Nigel Bankes

On July 17, 2018

In Energy

By: Nigel Bankes

PDF Version: Public Interest Standing for NGOs to Test Whether CNLOPB can Effect an End-Run Around Maximum Term Provisions

Case Commented On: David Suzuki Foundation v Canada-Newfoundland Offshore Petroleum Board, 2018 NLSC 146

Corridor Resources Inc. (Corridor) received a nine year exploration licence (EL 1105) from the Canada-Newfoundland Offshore Petroleum Board (CNLOPB or Board) on January 15, 2008 under the terms of the federal and provincial legislation implementing the terms of the Atlantic Accord: Canada-Newfoundland and Labrador Atlantic Accord Implementation Act, S.C.1987, Ch. 3 (Federal Act), and Canada-Newfoundland and Labrador Atlantic Accord Implementation Newfoundland and Labrador Act, R.S.N.L. 1990, c. C-2 (Newfoundland Act). As is customary, the EL was divided into two periods: Period I, five years and Period II, 4 years. In order to validate the licence for Period 2 Corridor had to commence the drilling of a well within the Period I and diligently drill through to completion. Corridor’s proposal to drill proved controversial and triggered a time-consuming environmental assessment procedure. In response to this Corridor applied for and was granted an extension to Period I but in the end it was not able to drill a well as required by the EL.

Alberta and British Columbia: How the constitution makes you best pals – Constitutional Perspectives

By Admin

On July 16, 2018

In Energy

Presenter: Fenner Stewart (Professor, University of Calgary)

PDF Version: Alberta and British Columbia: How the constitution makes you best pals – Constitutional Perspectives

Summarized By: Alexander Crisp, JD Candidate 2020, University of Calgary

Editor’s Note: This is the fifth in a series of blog posts that provides summaries of presentations from the ninth annual Energy Regulatory Forum, held in Calgary on May 28, 2018, as summarized by student attendees.

On May 28, Professor Stewart from the University of Calgary shared his views on Kinder Morgan’s Trans Mountain Expansion (TMX), and some of the constitutional tools that the British Columbia (BC), Alberta and federal governments have at their disposal to use on the project.

Relevant Considerations in Approving Assignments Under the CCAA

By Nigel Bankes

On July 10, 2018

In Bankruptcy and Insolvency, Energy

By: Nigel Bankes

PDF Version: Relevant considerations in approving assignments under the CCAA

Case Commented On: Dundee Oil and Gas Limited (Re), 2018 ONSC 3678

As part of approving a plan of compromise or arrangement under the Companies’ Creditors Arrangement Act, RSC 1985, c. C-36, s.11.3 (CCAA), the Court on an “application by a debtor company and on notice to every party to an agreement and the monitor, … may make an order assigning the rights and obligations of the company under the agreement to any person who is specified by the court and agrees to the assignment.” Section 11.3(3) provides the following guidance to the Court in exercising this power:

(3) In deciding whether to make the order, the court is to consider, among other things,

(a) whether the monitor approved the proposed assignment;

(b) whether the person to whom the rights and obligations are to be assigned would be able to perform the obligations; and