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Category: Natural Resources Page 6 of 21

The Rhetoric of Property and Immunity in the Majority Opinion in the Impact Assessment Reference

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On June 8, 2022

In Constitutional, Energy, Natural Resources, Property

By: Nigel Bankes & Andrew Leach

Opinion Commented On: Reference re Impact Assessment Act, 2022 ABCA 165 (CanLII).

PDF Version: The Rhetoric of Property and Immunity in the Majority Opinion in the Impact Assessment Reference

The Alberta Court of Appeal recently released its opinion in Reference re Impact Assessment Act, 2022 ABCA 165 (CanLII). A majority of the Court found the Impact Assessment Act, SC 2019, c. 28, s 1 [IAA] to be unconstitutional. Our colleague Martin Olszynski has already summarized the majority’s approach and some of the doctrinal difficulties therein.

In this post, we consider in more detail the majority’s lengthy discussion of the historical evolution of the resource rights of the prairie provinces from the creation of Alberta and Saskatchewan as provinces in 1905, through to the Natural Resources Transfer Agreements (NRTAs) of 1930, culminating with the adoption of s 92A (the Resources Amendment) in 1982.

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Responding to Concerns that Alberta Does Not Collect Enough Security for Environmental Remediation the AER Chooses to Collect Less Security

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On May 26, 2021

In Energy, Natural Resources, Oil & Gas

By: Drew Yewchuk

PDF Version: Responding to Concerns that Alberta Does Not Collect Enough Security for Environmental Remediation the AER Chooses to Collect Less Security

Document Commented On: Mine Financial Security Program Standard, dated May 6, 2021

On May 6, 2021, the Alberta Government announced they would review and modify the Mine Financial Security Program (MFSP). The MFSP is Alberta’s system for ensuring (purportedly at least) that companies pay for the reclamation of their mines, both oilsands and coal. At first glance, a review and modification sounds like a good idea, since the MFSP has been criticized as severely deficient since at least 2015 when an Auditor General report identified numerous significant problems concluding that in the event that “a mine operator cannot fulfill its reclamation obligations… the province may have to pay a potentially substantial cost for this work to be completed” (at 2). Since then, the Alberta Energy Regulator (AER) has improved its administration of the program, but Alberta Environment and Parks (AEP), the primary department responsible for the policy and design of the MFSP, has not addressed the overall structure of the program (see the Auditor General’s 2019 report). Under the MFSP, the province held $1.57 billion in security against estimated reclamation liabilities of $20.8 billion in December 2014 and $1.46 billion in security against $28.35 billion in estimated reclamation liabilities in June 2018. So reform is long overdue, especially if Alberta is considering approving new coal mines.

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Bill 12: a reprise

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On May 2, 2019

In Natural Resources, Oil & Gas

By: Nigel Bankes

PDF Version: Bill 12: a reprise

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:

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A Comment on the Strategically Narrowed Strategic Assessment of Climate Change

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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.

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

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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.

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