Category: Natural Resources Page 3 of 17

Legislation Commented On: Preserving Canada’s Economic Prosperity Act, SA 2018, c P-21.5

Case Commented On: British Columbia (Attorney General) v Alberta (Attorney General), 2019 ABQB 121 (CanLII)

I commented on Preserving Canada’s Economic Prosperity Act (PCEPA) when it was first introduced in the spring of 2018: see “A Bill to Restrict the Interprovincial Movement of Hydrocarbons: a.k.a. Preserving Canada’s Economic Prosperity [Act]” (18 April, 2018). At that time, I expressed doubts as to the constitutional validity of elements of Bill 12 as it then was, especially those provisions pertaining to refined products as well as any implementation measures that might involve discrimination by destination with respect to any exports. I remain of that opinion.

What has changed since then is that PCEPA has now been proclaimed (April 30, 2019); that is to say, it now has the force of law in Alberta. Prior to proclamation, PCEPA was of no legal significance. It was that absence of legal significance that led Justice Hall in his judgment in British Columbia (Attorney General) v Alberta (Attorney General) in February of this year to dismiss British Columbia’s challenge to the legislation. Justice Hall concluded that any such attack, at least by way of a declaration as to invalidity, was premature:

A Comment on the Strategically Narrowed Strategic Assessment of Climate Change

By David V Wright

On March 29, 2019

In Climate Change, Environmental, Natural Resources

By: David V. Wright

PDF Version: A Comment on the Strategically Narrowed Strategic Assessment of Climate Change

Document Commented On: Terms of Reference for the Federal Strategic Assessment of Climate Change

Earlier this month, Environment and Climate Change Canada (ECCC) released the terms of reference (TOR) for the Strategic Assessment of Climate Change (SA). This post briefly provides commentary on the context behind this development, offers several initial impressions of the TOR, and notes a number of ways to make the most of the process as now prescribed. Overall, the TOR charts a relatively narrow path that misses a critical opportunity to improve coherence across climate law, policy and programs in Canada, including with respect to carbon pricing and provincial climate measures such as those in Alberta.

For those following federal developments on the climate law and policy front, the wait for the TOR was a long one. This is the first development since the discussion paper released last summer. Why it took so long is unclear, though the federal government has obviously had a number of matters to contend with on the climate front, including the Ontario and Saskatchewan carbon price reference cases (the latter discussed in a recent post by my colleague, Martin Olszynski) and the relatively contentious Bill C-69.

Claims that Bill C-69 Needs More Focus on Economic Factors Ignore the Reality of Government Decision-Making and the Bill’s Details

By Hugh Benevides

On January 17, 2019

In Environmental, Natural Resources

By: Hugh Benevides

PDF Version: Claims that Bill C-69 Needs More Focus on Economic Factors Ignore the Reality of Government Decision-Making and the Bill’s Details

Legislation Commented On: Bill C-69, An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigation Protection Act and to make consequential amendments to other Acts

Much debate has occurred in recent months about Bill C-69, the federal government’s attempt to make good on election promises to strengthen and restore public trust in environmental decision-making. (Martin Olszynski addressed some of the problematic claims last September; other ABlawg posts have looked at various aspects of the Bill). As further set out below, the critics and opponents of Bill C-69, which was referred to a Senate committee in December following Second Reading, refuse to acknowledge that the proposed Impact Assessment Act will give Canadians the chance to have greater input into proposals affecting their communities, and to better trust decisions about projects like mines, dams—and yes, pipelines. It promises to do so by ensuring that people who care about a proposed development can participate meaningfully in its assessment, with a view to more lasting environmental, economic, social and health benefits.

Claims to Copyright Trumped by Expiration of Statutory Confidentiality Period

By Nigel Bankes

On May 8, 2017

In Intellectual Property, Natural Resources, Statutory Interpretation

By: Nigel Bankes

PDF Version: Claims to Copyright Trumped by Expiration of Statutory Confidentiality Period

Case Commented On: Geophysical Service Incorporated v EnCana Corporation, 2017 ABCA 125

In reserved reasons, a unanimous Court of Appeal has affirmed Justice Eidsvik’s decision at trial (2016 ABQB 230) in this contentious proceeding. This litigation has pitted the seismic company, GSI, against most, if not all, of the major exploration and production companies operating in Canada, as well as the federal regulators, the National Energy Board, and the Canada/Newfoundland Offshore Petroleum Board. GSI claims that seismic data that it generated is protected by copyright for the usual term of the Copyright Act, RSC 1985, c C-45 and that the various (and many) defendants have breached that protection by copying or facilitating the copying of protected materials once the confidentiality period protecting data filed with the regulators has expired.

Assessing Adaptive Management in Alberta’s Energy Resource Sector

By Martin Olszynski

On February 2, 2017

In Energy, Environmental, Natural Resources, Protection of Spaces, Protection of Species

By: Martin Olszynski

PDF Version: Assessing Adaptive Management in Alberta’s Energy Resource Sector

Research Commented On: “Failed Experiments: An Empirical Assessment of Adaptive Management in Alberta’s Energy Resources Sector” (UBC L Rev) (Forthcoming)

It was three years and six months ago – almost to the day – that I published my first ABlawg post. The Joint Review Panel (JRP) assigned to conduct the environmental assessment of Shell’s then-proposed Jackpine oil sands mine expansion project had just released its report. That report was notable for several reasons, including that it was the first to conclude that an oil sands mine was likely to result in “significant adverse environmental effects” pursuant to the Canadian Environmental Assessment Act 2012, SC 2012, c 19 (CEAA, 2012). In Shell Jackpine JRP Report: Would the Real “Adaptive Management” Please Stand Up?, however, I focused on the role that adaptive management had played in the Joint Review Panel’s determination of the project’s environmental effects. Briefly, adaptive management is defined by the Canadian Environmental Assessment Agency as “a planned and systematic process for continuously improving environmental management practices by learning about their outcomes.” The concern that I have expressed over the past few years is that, as practiced in Canada, adaptive management appears to be seldom planned or systematic. The problem was that I couldn’t show this to be the case – until now.

In a recent paper, I examine the implementation and effectiveness of adaptive management in Alberta’s energy resources sector. Using freedom of information processes, publicly available documents, and communication with the relevant regulator, I collected the environmental impact statements, environmental assessment reports (e.g. the Shell Jackpine JRP Report), statutory approvals and required follow-up reports for thirteen energy projects in Alberta: two coal mines, three oil sands mines, and eight in situ oil sands operations. In each case, the proponent proposed adaptive management for at least one environmental issue or problem. I then analyzed these various documents to determine the conception, implementation, and, to the extent possible, effectiveness of adaptive management with respect to each project throughout the regulatory cycle (i.e. from the proposal stage through to approval and reporting). Simply put, I set out to determine how adaptive management was actually being applied in this context.

Unfortunately, the results confirm longstanding concerns about the implementation of adaptive management in natural resources development.

Category: Natural Resources Page 3 of 17

Bill 12: a reprise

A Comment on the Strategically Narrowed Strategic Assessment of Climate Change

Claims that Bill C-69 Needs More Focus on Economic Factors Ignore the Reality of Government Decision-Making and the Bill’s Details

Claims to Copyright Trumped by Expiration of Statutory Confidentiality Period

Assessing Adaptive Management in Alberta’s Energy Resource Sector