Category Archives: Environmental

How the Canadian Forces defended the Sprague’s Pipit

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Decisions considered:

Decision Statement issued November 30, 2012 re: Cenovus (formerly EnCana) Shallow Gas Infill Development Project proposed for the Suffield National Wildlife Area, online here.

Re: EnCana Shallow Gas Infill Development Project – Review Panel Report under the Canadian Environmental Assessment Act, EUB Decision 2009-008, online here (the “2009 Panel Report”).

In October 2008 a joint review panel constituted under the Canadian Environmental Assessment Act, SC 1992, c 37 heard submissions and evidence from EnCana Corporation as the proponent of a proposed shallow gas well project (up to 1275 wells) to be located at the Canadian Forces Base Suffield National Wildlife Area in southeastern Alberta (the “Cenovus gas project”). The panel also heard submissions and evidence from other interested parties such as Environment Canada, the Department of National Defence, and a coalition of environmental groups including the Alberta Wilderness Association. Being a project located on federal lands (a national wildlife area designated under the Canada Wildlife Act, RSC 1985, c W-9), provincial departments such as Alberta Environment and Sustainable Resource Development played a minimal role in the proceedings. The joint review panel issued its assessment on January 27, 2009, essentially recommending to the federal Minister of Environment that the Cenovus gas project should not proceed until (1) critical habitat was designated for 5 listed species under the Species at Risk Act, SC 2002, c 29 [SARA], and (2) the project was designed to ensure it would not be located within these designated critical habitat areas or alternatively was expressly permitted to do so under the Species at Risk Act (2009 Panel Report at 171). The Minister of Environment responded on November 30, 2012 with a Decision Statement issued under section 54 of the Canadian Environmental Assessment Act 2012, SC 2012, c 19, s 52 (CEAA 2012) declaring that the Cenovus gas project was likely to cause significant adverse environmental effects that are not justified in the circumstances. Section 6 of CEAA 2012 prohibits Cenovus from proceeding with the Cenovus gas project and section 7 prohibits a federal authority from approving the project. That is the news. What follows is some commentary.

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Bill 2 the Responsible Energy Development Act and the Duty to Consult

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Proposals commented on: Bill 2, the Responsible Energy Development Act, Alberta and the First Nations Consultation Policy, Discussion Paper, (Fall 2012).

There has been a lively debate in the courts, tribunal decisions and the literature over the last few years as to the role of administrative tribunals in discharging or examining the Crown’s duty to consult aboriginal peoples when contemplating making decisions and developing policies which may adversely affect aboriginal or treaty rights. There are two guiding rules. First, a tribunal that has the authority to decide questions of law is presumed to have the jurisdiction to decide questions of constitutional law including the question of whether or not the Crown has satisfied its constitutional duty to consult and accommodate – provided that the constitutional question is rationally connected to a power or jurisdiction that the tribunal is exercising. The legislature may rebut that presumption by removing all or part of that jurisdiction from a tribunal. Second, a tribunal does not have the authority to discharge the Crown’s duty to consult and accommodate unless that authority is expressly delegated to the tribunal. The principal authority for all of this is Rio Tinto Alcan Inc v Carrier Sekani Tribal Council, 2010 SCC 43 which I blogged at here.

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An Overview of Bill 2: Responsible Energy Development Act – What are the changes and What are the issues?*

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Bill commented on: Bill 2, Responsible Energy Development Act, The Legislative Assembly of Alberta, 1^st Session, 28^th Legislature

On the heels of a sweeping overhaul to federal legislation to streamline federal approval processes for major energy projects, it is now Alberta’s turn. Bill 2 – the proposed Responsible Energy Development Act (REDA) proposes significant changes to the way oil and gas (and coal) projects are approved and regulated in the province. This post provides an overview of the Bill by highlighting the key changes that will be made to the current regulatory regime and the issues they raise.

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Bill 2 and its implications for landowner participation in energy project decision-making

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Bill commented on: Bill 2, Responsible Energy Development Act, The Legislative Assembly of Alberta, First Session, 28th Legislature

I find it strange to be writing in defence of the current hearing practice at the Energy Resources Conservation Board (ERCB), but that is what I am about to do. I find myself in this odd position because Bill 2 significantly reshapes the governing legislation on energy project hearings, and in doing so the Bill proposes to repeal existing statutory rights held by landowners under sections 26(2) and 28(1) the Energy Resources Conservation Act, RSA 2000, c E-10 (ERCA). These existing statutory provisions provide a landowner or resident on the land upon which an energy project will be located, or those in very close proximity, with the right to an ERCB hearing to contest the project and the prospect of funding to construct their case. Much has been written on ABlawg concerning these provisions (See various posts by myself and others here at the Faculty under the “Intervener and Standing” category, here. See also a short article I published in volume 111 of Resources (2011) entitled “Public Participation at the Alberta Energy Resources Conservation Board,” here. This post describes the changes proposed in Bill 2.

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Bill 2, the Responsible Energy Development Act and the Enforcement of Private Surface Agreements

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Proposal commented on: Bill 2, the Responsible Energy Development Act

Bill 2, the Responsible Energy Development Act (REDA) if enacted will afford the Regulator an entirely new jurisdiction over the enforcement of “private surface agreements.” This comment discusses the following questions: (1) What is the status quo and what are the problems with the status quo? (2) What will the Bill do? (3) If change was necessary, why was this jurisdiction accorded to the Regulator and not the Surface Rights Board? Focusing on question # 3 my general argument will be that it would be a better “fit” to accord this additional jurisdiction to the Surface Rights Board which already has considerable expertise in these matters.

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