ABLawg - - Page 215

By: Shaun Fluker

PDF Version: What Policy Direction should Alberta Follow on Carbon Emissions?

Matter Commented On: Climate Leadership – Discussion Document (Government of Alberta, August 2015)

Alberta’s Climate Change Advisory Panel is seeking public input on what direction provincial climate change policy should follow going forward. One method of providing your input is to complete an online survey on or before September 18. This is the second part of a two-step process announced by the Minister of Environment and Parks in late June 2015 (see here for the post by my colleague Nigel Bankes on this announcement). To inform this important public dialogue, in August 2015 the Climate Change Advisory Panel published the Climate Leadership – Discussion Document. This 62 page document sets out the overall carbon emissions profile in Alberta (at 9 – 17) and then discusses emissions by individual economic sector and summarizes policy tools that have been used in Alberta and elsewhere to reduce emissions in that sector: oil & gas (at 20 – 26), electricity (at 27 – 34), transportation (at 35 – 40), commercial and residential buildings (at 41 – 46), industrial and manufacturing (at 47 – 51), agriculture, forestry, and waste (at 52 – 56). The Minister’s announcement together with the overall tone and content of the discussion document make it clear the current intensity-based emissions reduction policy implemented by the Specified Gas Emitters Regulation, Alta Reg 139/2007 will be replaced on or before the end of 2017. I believe the centrepiece of Alberta’s new direction should be joining the cap-and-trade system currently operating in Quebec and California, along with Ontario which in April 2015 announced its intention to join.

ITLOS, The Enrica Lexie Incident and the Prescription of Provisional Measures: Saying That There is Urgency Does Not Make It So

By Nigel Bankes

On September 16, 2015

In International Law, Law of the Sea

By: Nigel Bankes

PDF Version: ITLOS, The Enrica Lexie Incident and the Prescription of Provisional Measures: Saying That There is Urgency Does Not Make It So

Decision Commented On: ITLOS, The Enrica Lexie Incident: Order in respect of request for the prescription of provisional measures, Italy v India, 24 August 2015

Article 290 of the Law of the Sea Convention of 1982 (LOSC) accords the International Tribunal of the Law of Sea (ITLOS) the authority to prescribe provisional measures in two different circumstances. Paragraph one authorizes ITLOS (along with the International Court of Justice, and any relevant international tribunal properly seized with an application) “to prescribe any provisional measures which it considers appropriate under the circumstances to preserve the respective rights of the parties to the dispute or to prevent serious harm to the marine environment, pending the final decision” provided that ITLOS, the Court or an arbitral tribunal (as the case may be) has prima facie jurisdiction, to consider the matter.

The Governor in Council Occasions Change and Delay in the National Energy Board’s Review of the Trans Mountain Pipeline Expansion Project: The Curious Case of PC 2015-1137

By Kirk Lambrecht, Q.C.

On September 15, 2015

In Administrative Law, Energy, Natural Resources

By: Kirk Lambrecht, Q.C.

PDF Version: The Governor in Council Occasions Change and Delay in the National Energy Board’s Review of the Trans Mountain Pipeline Expansion Project: The Curious Case of PC 2015-1137

Matter Commented On: Order in Council PC 2015-1137

In plain language, it seems that the Governor in Council shot the Trans Mountain Pipeline Expansion Project in the foot just as the Project was about the cross the finish line of a two year environmental assessment and regulatory review process overseen by the quasi-judicial National Energy Board [NEB]. A Governor in Council decision to appoint a Proponent’s witness to the NEB, taken while a Panel of the NEB was still considering the Proponent’s application, has occasioned the striking of a part of the Proponent’s evidence in the ongoing environmental assessment process (described here) and regulatory review process (described here) for the Trans Mountain Pipeline Expansion Project (described here). The Governor in Council’s action will cause unexpected changes and delays to these processes; and the clouds of future litigation which lay on the horizon for this Project now darken as a further consequence. This comment is structured around four questions: (1) what happened? (2) how could this happen? (3) will this affect Aboriginal consultation? and (4) what happens next?

Provincial Environmental Appeal Boards: A Forum of Choice for Environmental (and First Nation) Plaintiffs?

By Nigel Bankes

On September 11, 2015

In Aboriginal, Constitutional, Environmental, Oil & Gas, Water Law

By: Nigel Bankes

PDF Version: Provincial Environmental Appeal Boards: A Forum of Choice for Environmental (and First Nation) Plaintiffs?

Decision Commented On: Chief Gale and the Fort Nelson First Nation v Assistant Regional Water Manager & Nexen Inc et al, Decision No. 2012-WAT-013(c), BC Environmental Appeal Board, September 3, 2015

In this important (and lengthy) decision (115pp), British Columbia’s Environmental Appeal Board (EAB) revoked Nexen’s commercial water licence for two reasons: first, the terms and conditions of Nexen’s licence were not technically supportable, and second, the Crown was in breach of its constitutional obligation to consult the First Nation with respect to the decision to issue the water licence.

I think that the decision is important for at least four reasons (notwithstanding the fact that the days for the version of the Water Act, RSBC 1996, c 483 in force at the time of this licence decision are numbered since it is due to be replaced by the new BC Water Sustainability Act in early 2016 and for comment see here). First, and most generally, it is an excellent example of the important role that environmental appeal boards can play in shining a light on the administrative practices of line departments. In the same vein, it is also offers a dramatic illustration of the differences between the role of an EAB and the role of a court on a judicial review or statutory appeal application. An EAB can offer a searching, de novo, technical re-assessment of the merits of the department’s decision; a court is inevitably more deferential and precluded from engaging in an assessment of the merits. I have written at length on this important role that EABs serve, see “Shining a light on the management of water resources: the role of an environmental appeal board” (2006), 16 Journal of Environmental Law and Practice 131 – 185.

At Long Last – Legal Protection for the Castle Wilderness

By Shaun Fluker

On September 10, 2015

In Protection of Spaces

By: Shaun Fluker

PDF Version: At Long Last – Legal Protection for the Castle Wilderness

Matter Commented On: Alberta Environment and Parks, News Release “Province to fully protect Castle area” (September 4, 2015)

On September 4 the Alberta government announced its intention to legally protect the area in southwestern Alberta known as the Castle wilderness with a new wildland provincial park and a new provincial park. What this legal protection exactly amounts to remains to be seen, but the September 4 announcement states there will be no further approvals granted for resource development in the Castle and existing approvals, other than for oil & gas, will be cancelled. Readers who follow land use decision-making in Alberta will know this announcement follows on the heels of the South Saskatchewan Regional Plan which was enacted just one year ago in September 2014 with its own direction for protecting the Castle. And those familiar with the Castle wilderness specifically will know this announcement is a monumental shift in policy direction. What follows is some context for this announcement, and some consideration of the applicable law in relation to implementing this new policy direction. The analysis concludes by suggesting the Alberta government consider enacting dedicated legislation to protect the Castle wilderness.