Monthly Archives: June 2014

Northern Gateway Dealt Another Setback

In a unanimous decision, the Supreme Court of Canada has expanded land-title rights for aboriginal communities. Indirectly, it has created yet another significant hurdle for Enbridge’s Northern Gateway pipeline, and other similar projects.

Speaking for the Court, Chief Justice Beverley McLachlin wrote that “the right to control the land conferred by Aboriginal title means that governments and others seeking to use the land must obtain the consent of the Aboriginal title holders…”.

Further, “if the Aboriginal group does not consent to the use, the government’s only recourse is to establish that the proposed incursion on the land is justified” under the Constitution.

In concluding, the Court found that the appeal of the Tsilhqot’in would be allowed and declared “that British Columbia breached its duty to consult owed to the Tsilhqot’in through its land use planning and forestry authorizations”.

For the full text of the decision, simply click here.

By James Early

Public Feedback Requested on near-Urban Energy Development in Alberta

According to a media release from June 16, 2014, the Government of Alberta is inviting Albertans to provide input on issues relating to energy development in urban areas through an online forum.

The online feedback form is available until July 15 and will be supplemented by discussions with local stakeholders in Grande Prairie, Red Deer, Calgary, and Lethbridge between June 16 – 24.

The Province has not yet made any decision with respect to the South Saskatchewan Regional Plan and how the SS region’s land use might be governed over the coming years, but already it appears that continued development of energy close to urban centres in on the cards.

There are concerns about the draft SSRP and its failure to properly protect the environment in which we live. This energy development consultation provides Albertans yet another chance to voice their thoughts and concerns over Alberta’s environmental policy.

By James Early

New Air Pollutant Regulations for Canada

Canada is to regulate industrial air pollutant emissions, according to the federal Minister of Environment. Taken from the Government of Canada website:

The Government of Canada is taking action to reduce industrial air emissions with the proposed Multi-Sector Air Pollutants Regulations (MSAPR). The regulations are a key part of the federal responsibility for implementing the new federal/provincial/territorial Air Quality Management System.

The MSAPR impose mandatory national performance standards on specific sector/equipment groups in order to establish consistent emissions limits for regulated industries across the country. The proposed regulations include requirements for stationary spark-ignition gas-fired engines, non-utility boilers and heaters, and the cement manufacturing sector.

Requirements for additional industrial sectors will be added to the regulations in the years ahead. Once fully implemented, industries will be required to reduce their emissions of nitrogen oxides (NOx), sulphur dioxide (SO2), volatile organic compounds, ammonia, and/or particular matter, which are all contributors to smog and increased health risks. Environment Canada estimates that there will be 3.4 megatonnes of greenhouse gas reductions between 2013 and 2035, as a co‑benefit to these regulations.

Stationary Spark-Ignition Engines
Stationary engines covered by the proposed regulations burn gaseous fuels and are typically used for gas compression in the upstream oil and gas sector (such as moving gas through pipelines), but can also be used for other purposes, such as back-up power generators for emergencies or in remote locations. These engines range in size from as small as the engine in a small car to as large as the engine found in a diesel-electric locomotive, and are a significant source of NOx emissions. In one hour of operation, an average-sized stationary spark-ignition engine emits as much NOx as an average light-duty vehicle does in almost 200,000 kilometres.

The proposed regulations would impose performance standards for both new and existing engines. The performance standards for new and existing engines are expected to reduce NOx emissions by about 1.8 megatonnes between 2013 and 2035, this is almost twice the amount of NOx that Canada’s entire mobile fleet—cars, trucks, planes, trains, tractors and other industrial equipment—emitted in 2011.

Non-utility boilers and heaters
Boilers covered by the proposed regulations burn gaseous fossil fuels, such as natural gas, to create hot water or steam for use in industrial processes and heating. Heaters directly heat the material being processed. In both boilers and heaters, the design of the burner is the most important determinant of NOx emissions intensity.

The proposed regulations would impose performance standards for both new and existing boilers and heaters. NOx emissions from regulated boilers and heaters are expected to be reduced by about 227,000 tonnes between 2013 to 2035. Using 2012 as the reference year, this is equivalent to eliminating an entire year’s worth of the NOx emissions from electric power generation, and commercial and residential fuel combustion.

Cement Manufacturing Sector
During cement manufacturing, the single greatest source of air pollutants of concern originates from the kiln. A kiln heats and processes limestone and other materials to produce an intermediate product called clinker. Clinker is then ground and combined with other materials to produce cement. The proposed regulations apply to all cement manufacturing facilities that produce clinker for the purpose of producing grey cement.

The proposed regulations would impose kiln-specific performance standards for NOx and SO2 per tonne of clinker produced. The proposed measures would impose performance standards starting in 2017. The cement sector produced a total of 16,000 tonnes of SO2 and 23,000 tonnes of NOx in 2011. The cement-sector standards are expected to reduce total SO2 and NOx emissions by 96,000 tonnes and 63,000 tonnes respectively between 2017 to 2035. For SO2, this is roughly the amount of sulphur dioxide in solid form that would fill 600 railcars, and 380 railcars for NOx.

Air Quality Management System
On October 11, 2012, the federal government, provincial and territorial governments agreed to begin implementing a new air quality management system (AQMS). The AQMS is a comprehensive approach for improving air quality in Canada and is the product of unprecedented collaboration by the federal, provincial and territorial governments and stakeholders. It includes:

– New Canadian Ambient Air Quality Standards (CAAQS) to set the bar for outdoor air quality management across the country (published in May 2013)

– Industrial emission requirements that set a base level of performance for major industries in Canada (first phase published in June 2014)

– A framework for air zone air management within provinces and territories that enables action tailored to specific sources of air emissions in a given area

– Regional airsheds that facilitate coordinated action where air pollution crosses a border
Improved intergovernmental collaboration to reduce emissions from the transportation sector

Following the announcement, the Globe Foundation pointed out that:

The new Multi-Sector Air Pollutants Regulations will not focus on the energy sector apart from capping emissions from Stationary Spark-Ignition Engines typically used for gas compression in the upstream oil and gas sector to move gas through pipelines, or as back-up power generators for emergencies or in remote locations.

The Multi-Sector Air Pollutants Regulations will be enabled pursuant to the Canadian Environmental Protection Act, 1999.

This is positive news for Canadians and our respiratory health, though much more needs to be done vis-a-vis the regulation of energy sector emissions generally.

By James Early

AER Taking Baby Steps

Ecojustice recently reported on the Alberta Energy Regulator (“AER”) and the lack of action it has taken following a lot of hype when it was first introduced.

Well, one step does not a regulator make, but the AER has just shown some teeth in laying environmental charges against Plains Midstream Canada ULC.

The charges stem from a pipeline incident that occurred on June 7, 2012, and resulted in 2,900 barrels (461,000 litres) of sour crude oil being released from the company’s Rangeland pipeline into the Red Deer River near Sundre, Alberta.

Specifically:

“The charges include a federal charge under the Fisheries Act and a provincial charge for failing to report a release of crude oil from a pipeline as required under Alberta law.

“The provincial environmental charge stems from an Alberta Environment and Sustainable Resource Development (ESRD) investigation that found the company failed to report the release as required within Alberta’s Environmental Protection and Enhancement Act (EPEA).”

What will come of these charges? Does this baby step signal more to come from the AER, or will AER action only sporadically occur in the wake of pressure from organizations such as Ecojustice? Time will tell. For now, I for one am glad to see some teeth being shown.

By James Early

The Clean Power Plan, will Canada follow suit?

Today, President Obama and the Environmental Protection Agency (“EPA”) released the Clean Power Plan (the “Plan”), a 645-page rule created to curb global warming.

Amongst other things, the rule seeks to cut carbon emissions by 30% from 2005 levels by 2030. Under the rule, States must submit initial compliance plans by June 2016. Each state will be left to develop its own strategy for complying with the new guidelines. To read the Plan, if you have time, click here.

A summary of the Plan is can be gleaned directly from the Plan itself:

“Nationwide, by 2030, this rule would achieve CO2 emission reductions from the power sector of approximately 30 percent from CO2 emission levels in 2005. This goal is achievable because innovations in the production, distribution and use of electricity are already making the power sector more efficient and sustainable while maintaining an affordable, reliable and diverse energy mix.

“This proposed rule would reinforce and continue this progress. The EPA projects that, in 2030, the significant reductions in the harmful carbon pollution and in other air pollution, to which this rule would lead, would result in net climate and health benefits of US$48 billion to US$82 billion.”

Will the Plan result in legal challenges? Quite probably. One such challenge could be whether the EPA has overstepped its authority. A public comment period could also result in changes to the Plan.

Finally, will Canada follow in the footsteps of our southern neighbours? After all, didn’t Mr. Harper state that he would be acting “in concert” with the US on these matters? In the wake of the Copenhagen Summit on climate change (2009 United Nations Climate Change Conference), Mr. Harper announced that:

“[i]f the Americans don’t act, it will severely limit our ability to act. But if the Americans do act, it is essential that we act in concert with them.”

I’m on the edge of my seat…

By James Early

Consultation and Accommodation Deemed Adequate in Latest BC Mine Decision

In the Fort St. John area of British Columbia, Canadian Kailuan Dehua Mines Co. Ltd. (“CKDM”), a Chinese company, is planning to execute the Gething Bulk Sample Project (the “Project”). The Project:

“involves the excavation of two underground declines (ramps) of approximate length 337m and 360m to access the target coal seam, and the extraction of a 100,000 tonne coal bulk sample…”

The Project is also situated within the Treaty 8 reserve lands of the West Moberly First Nations (“WMFN”). Once again, a B.C. court has been asked to determine whether there was adequate consultation and accommodation before the decisions were made to allow the Project to proceed.

Treaty 8 promises WMFN the right to pursue their usual vocations of hunting, trapping and fishing, but that right is “subject to such regulations as may from time to time be made by the Government … and saving and excepting such tracts as may be required or taken up … for mining…”

One issue that the B.C. Supreme Court had to address was an earlier decision (West Moberly No. 1 (2011)) in which a similar coal development program was put on hold after the B.C. Court of Appeal held that there had been inadequate consultation. Would West Moberly No. 1 be applied or distinguished in this case?

While both matters concerned small herds of caribou that are at risk of extirpation, the project under consideration in West Moberly No. 1 was found to be located in an area integral to the life of the caribou. In distinguishing West Moberly No. 1, the B.C. Supreme Court held, in this case, that the Project was at a lower elevation and further north and that, unlike in West Moberly No. 1, no government expert had expressed any concerns about the welfare of the caribou.

Justice MacIntosh ultimately found that consultation and accommodation had been adequate in this case. Once again, there was evidence that a First Nation had been “reluctant or simply slow in bringing their information to the table” and the court again identified the principle that “[c]onsultation is a two-way exercise”. For more on that, see my earlier post: here.

In his concluding remarks, Justice MacIntosh summarized some principles of the duty to consult, as follows:

[146] Consultation and accommodation are called for to ensure that the Crown honours its treaty and other obligations with First Nations, instead of merely paying lip service to First Nation rights. Honourable consultation and accommodation are the protectors against the Crown barging ahead as if treaty rights were only cosmetic.

[147] In addressing allegations that the Crown has breached its duties, a court must look beyond only the allegations, and see what the facts demonstrate as to inadequate or dishonourable Crown participation. Of course, that exercise, in essence, is the task of a court in almost every case coming before it, i.e., to look beyond mere allegations. I raise the point in the context of consultation-accommodation cases because these cases raise a particular difficulty in relation to judicial review. The fact that more study, more consultation and more accommodation would nearly always be possible raises the risk of inadequate consultation being found simply from the fact that the further consultation could have been carried out when it was not. The analysis has to refine itself, to asking whether some relevant block of data was omitted, or some particular, reasonable, First Nations’ request was ignored, as two examples.

[148] From my assessment of the evidence, placed in its context by the parties’ submissions, I was unable to see a material deficiency in the consultation or the accommodation. Nor did the evidence show anything in the nature of dishonourable Crown conduct. Consultation is a two-way exercise. From time to time in the consultation exercise here, the West Moberly were reluctant or simply slow in bringing their information to the table. The Crown cannot be faulted for that, provided the Crown carried on, and assured itself that it had obtained the information it required in order to know the circumstances and consult adequately.

I suspect that, should the Project reveal a viable mining opportunity for CKDM, we should not be surprised to see these parties before the courts again.

By James Early