Canada: Environment @ Gowlings - July 20, 2011

Last Updated: July 25 2011

Edited by Harry Dahme

FEDERAL NEWS

Environment Canada Releases Phase 1 of its Lower Athabasca Water Quality Monitoring Plan

On March 24, 2011, Environment Minister Peter Kent presented Phase 1 of Environment Canada's plan for a new Lower Athabasca Water Quality Monitoring Program in response to the Federal Oil Sands Advisory Panel.

Phase 1 of the Plan addresses surface water quality monitoring in the the Athabasca River and its major tributaries between Fort McMurray and the Wood Buffalo National Park boundary. The Plan focuses on the physical and chemical attributes of water quality – subsequent phases will address biological endpoints, "effects-based" monitoring and assessment, and an expanded geographic scope.

The Plan is available here: http://www.ec.gc.ca/Content/8/A/1/8A1AB11A-1AA6-4E12-9373-60CF8CF98C76/WQMP_ENG.pdf


Manufacture or import of Alkyl oxirane, polymer with alkyl oxirane sulfate alkylethers, alkali salts permitted

On April 2, 2011, the Minister of the Environment, pursuant to paragraph 84(1)(a) of the Canadian Environmental Protection Act, 1999 permitted the manufacture or import of Alkyl oxirane, polymer with alkyl oxirane sulfate alkylethers, alkali salts subject to the conditions prescribed in Part I of the Canada Gazette.

For more information see: http://www.gazette.gc.ca/rp-pr/p1/2011/2011-04-02/pdf/g1-14514.pdf


Notice to amend the Domestic Substances List

On April 2, 2011, the Minister of Environment gave notice of intent to amend the Domestic Substances List under subsection 87(3) of the Canadian Environmental Protection Act, 1999 so that subsection 81(3) applies to:

  • Ethanol, 2-methoxy-, acetate
  • Ethanol, 2-(2-methoxyethoxy)-
  • 2-Naphthalenol, 1-[(4-methyl-2-nitrophenyl)azo]-

in accordance with the prescribed conditions.

Any person may, within 60 days of publication of this notice, file with the Minister of Environment comments about the proposal.

Additional information is available here: http://www.gazette.gc.ca/rp-pr/p1/2011/2011-04-02/pdf/g1-14514.pdf


Amendments to the Non-domestic Substances List

The Minister of Environment issued an order on April 4, 2011 removing the following substances from the Non-domestic Substances List:

  • 26353-05-9
  • 21755-26-6, and
  • 710313-77-2.


Regulations Amending Certain Regulations Made under Sections 160, 191 and 209 of the Canadian Environmental Protection Act, 1999 and Repealing the List of Hazardous Waste Authorities (Miscellaneous Program)

On April 2, 2011, the Department of Environment published a set of proposed amendments to the:

  • Off-Road Small Spark-Ignition Engine Emission Regulations
  • Export and Import of Hazardous Waste and Hazardous Recyclable Material Regulations, and
  • Storage Tank Systems for Petroleum Products and Allied Petroleum Products Regulations.

The objective of the amendments are to improve the clarity and consistency of the regulatory texts, align the English and French versions of each regulation, and to repeal the List of Hazardous Waste Authorities [SOR/92-636], which has become obsolete.

The proposed amendments can be reviewed here.


Environmental Occurrences Notification Agreements

Provincial, territorial and federal laws require, in most cases, notification of the same events involving a release or a deposit of a substance into the environment. To avoid duplication, the Minister of the Environment and the Minister of Fisheries and Oceans entered into Environmental Occurrences Notification Agreements with the governments of Ontario, Manitoba, British Columbia, Saskatchewan, Alberta, Yukon and the Northwest Territories.

Under the Agreements, one organization for each province and territory will receive environmental occurrences notifications on behalf of Environment Canada.

The Notification Agreements are available on the Department of Environment's Environmental Registry: www.ec.gc.ca/lcpe-cepa.


Release and Environmental Emergency Notification Regulations

On April 13, 2011, the Governor General in Council, on the recommendation of the Minister of Environment, made the Release and Environmental Emergency Notification Regulations under the Canadian Environmental Protection Act, 1999.

The objective of the Regulations is to designate under the Canadian Environmental Protection Act, 1999 and the Fisheries Act, respectively, the persons providing 24-hour emergency telephone service for the organizations operating for the provincial and territorial governments, enabling them to receive notifications that, otherwise, have to be made directly to Environment Canada.

The regulations are available here: http://www.gazette.gc.ca/rp-pr/p2/2011/2011-04-13/pdf/g2-14508.pdf.


Significant New Activity Notices

On April 30, 2011, the Minister of Environment issued Significant New Activity Notices pursuant to section 85 of the Canadian Environmental Protection Act, 1999 that subsection 81(4) applies to the following substances in accordance with the prescribed conditions:

  • 2-Propenoic acid, 2-methyl-, polymer with 2-hydroxyethyl 2-methyl-2-propenoate, α-(1-oxo-2-propen-1-yl)-ω-hydroxypoly (oxy-1,2-ethanediyl)
  • 3,3,4,4,5,5,6,6,7,7,8,8,8-tridecafluorooctyl 2-propenoate, sodium salt, and
  • 2-Propenoic acid, 2-methyl-, 2-hydroxyethyl ester, polymer with 1-ethenyl-2-pyrrolidinone, 2-propenoic acid.

The Significant New Activity Notices set out the prescribed information that must be provided to the Minister for assessment prior to the commencement of any new significant activity described in the Notices.

The Notices are available here: http://www.gazette.gc.ca/rp-pr/p1/2011/2011-04-30/pdf/g1-14518.pdf.


Order Amending the Domestic Substances List

On April 27, 2011, the Minister of Environment published Order 2011-87-03-01 which added 16 chemicals to the Domestic Substances List.

The order can be viewed here: http://www.gazette.gc.ca/rp-pr/p2/2011/2011-04-27/pdf/g2-14509.pdf.


PROVINCIAL NEWS

ONTARIO

Amendments to the Altered Standards process of air standards set out in Ontario Regulation 419/05 made under the Environmental Protection Act, 1990

The Ministry of Environment has amended O. Reg. 419/05 to:

  • change the term "altered standard" to "site-specific standard"
  • allow facilities a minimum of 5 years and a maximum of 10 years for approval of a site-specific standard and remove the reference to "extenuating circumstances", and
  • remove the requirement for a public meeting when facilities are requesting renewal of a site-specific standard if there are no significant changes to the information that supported their original request.

The amendments can be viewed in the Environmental Registry under EBR Registry Number 011-3088.


QUÉBEC

Québec's Strategic Guidelines for Québec Protected Areas: a testimony to Québec's ongoing commitment to the protection of biodiversity

By: Paul Granda

The Minister of Sustainable Development, Environment and Parks, announced on May 18, 2011 that the Québec government is pursuing its objective to increase protected areas to cover 12% of the province by 2015. The Strategic Guidelines for Protected Areas (http://www.mddep.gouv.qc.ca/biodiversite/aires_protegees/orientations-strateg2011-15-en.pdf) establish a framework for achieving this goal. In accordance with the Guidelines, the Minister is to submit a 2011-2015 Action Plan consisting of four plans on biodiversity. One of the plans focuses on protected areas.

Québec's objectives are inspired by those set at the Nagoya Conference of the Parties to the Convention on Biological Diversity (CBD), namely, that 10% of costal and marine areas and 17% of terrestrial and inland waters be designated as protected areas by 2020. Québec has committed itself to be bound by the CBD and attended the Nagoya Conference in October 2010. Québec is committing to reach the target of protecting 10% of marine areas by 2015 five years in advance. Currently, protected areas cover 8.35% of the territory of the Province.

The guidelines identify five themes or goals. First, aiming to achieve a "Representativeness of the network", the government will introduce new areas in the Southern, Marine, Central and Northern zones of the Province. Different forms of management established by the International Union for Conservation of Nature (IUCN) will be employed in the Southern zone. Regarding the Marine zone, the government is planning a roundtable of ministries and organizations to identify solutions focused on the St-Lawrence River. In the Central Zone, Québec will increase the area under protection by 12% to protect vulnerable species like the woodland caribou. In the Northern zone, the objective is also to increase the area under protection by 12% by in part protecting additional aquatic ecosystems.

Second, the network of protected areas will be consolidated by protecting more "wilderness" areas to protect certain species "particularly sensitive to human activities" (for example, the woodland caribou), reducing human activity in areas between protected areas, and by protecting species that are "the most sensitive to climate change".

Third, the government expressed a commitment to "governance and participation by the public and aboriginal communities". Thus, it pledges to "as much as possible" coordinate the creation of new protected areas with regional land planning institutions. The consultation with First Nations is also to continue, in particular, taking into account, aboriginal rights, concerns, procedures in Québec's recently released Plan Nord and signed agreements.

Fourth, the Guidelines provide that the implementation of the 2011-2015 Action Plan will take into account land rights and economic impacts on the resource industry.

Fifth, the Government commits to acquiring the requisite scientific knowledge to design its protected areas policy.


Québec's Response to Shale Gas Critics

By: Paul Granda

In 2010, Québec's Minister of Natural Resources and Wildlife, Nathalie Normandeau, made the first announcement regarding the province's exceptional potential in natural gas, including shale gas. However, the government may not have been prepared for the wave of criticism that followed. Indeed, criticism emerged from a very diverse spectrum of entities and persons including municipalities, environmental groups, scientists and citizens. In May 2011, the government announced new measures to tackle the problem and to reassure the population namely by performing a Strategic Environmental Assessment. Mostly based on the recommendations made by the Bureau des audiences publiques sur l'environnement (BAPE) in its report tabled last February, these measures appear to address concerns about developing a better understanding of the impacts of hydraulic fracturing (also referred to as "fracking"), control and safety of hydraulic fracturing, and more broadly, management of shale gas by the industry. However, many are still asking whether these measures are adequate. The Minister of Sustainable Development, Environment and Parks therefore tabled the following draft regulations at the beginning of May as a measure to address certain of the concerns raised by several shareholders.

Regulation to amend the Regulation respecting the application of the Environmental Quality Act

The main purpose of this draft regulation is to require proponents to obtain a certificate of authorization under section 22 of the Environment Quality Act (EQA) before undertaking operations including drilling work and/or fracturing to explore for or produce petroleum or natural gas in shale. Furthermore, the draft regulation provides for specific requirements including informing and consulting the public about the proposed activity prior to requesting a certificate of authorization to perform such activities.

Concretely, this means that a person who applies for a certificate of authorization must publish a notice in a newspaper distributed in the municipality in which the work is to be carried out indicating:

  • the cadastral designation of the lot or lots on which the project will be carried out;
  • the description or illustration of the perimeter of the territory on which the project will be carried out and that the description or illustration is available for consultation at the office of the municipality;
  • a summary of the project including a description of the project's technical aspects, a plan of the site and an indication of the type and volume of contaminants likely to be emitted, discharged, issued or deposited into or in the environment and their points of emission, deposit, issuance or discharge;
  • the date, time and place of the public consultation to be held in the municipality no less than 20 days following the publication of the notice; and
  • a statement that the full text of the document presenting the project can be examined on the project proponent's website (the notice must indicate the website address) and at the office of the municipality where a copy of the document can be obtained on payment of a fee.

A copy of the published notice must be sent to the Minister, to the municipality and to the regional county municipality where the project is to be carried out.

The draft regulation also establishes that, following public consultation, the project proponent shall submit a report to the Minister of Sustainable Development, Environment and Parks describing the observations collected during the consultation, as well as any changes made to the project. Finally, this report as well as a copy of the published notice must be included with the application for a certificate of authorization.

Draft regulation respecting the filing of information on certain drilling and fracturing work on gas or petroleum wells

This other draft regulation also tabled by the Minister of Sustainable Development, Environment and Parks addresses certain aspects related to the implementation of the Strategic Environmental Assessment (SEA), one of the key recommendations made by the BAPE in its report on the inquiry and public hearings held last year about the sustainable development of the shale gas industry in Québec. The Minister plans to collect more information on the shale gas industry and, most of all, on its impact on the environment through this draft regulation, which is specifically targets enterprises that perform or have performed drilling work to explore for or produce petroleum or natural gas, or fracturing operations to explore for or produce those products. Enterprises that obtained certificate of authorization as well as natural or legal persons who carried out the described work during the seven years prior to the coming into force of the regulation will be required to submit the prescribed information on a quarterly basis, which includes:

  • drilling and well completion methods and technologies;
  • complete water management, including water catchment and re-use;
  • the volume of the fluids and the detailed composition and characteristics of the additives used for drilling and fracturing;
  • knowledge and monitoring of surface and groundwater within a one-kilometre perimeter;
  • identification of zones at risk of contamination;
  • the geo-chemistry and contamination of rock formations by waste fracturing water and injection of waste water at depth;
  • the characterization, quantity and destination of residual solids and liquids intended for recovery, treatment or elimination;
  • emissions monitoring;
  • knowledge of the geological horizons traversed by the well; and
  • all technical data relative to the design and drilling of authorized wells and results of well integrity tests.

If adopted, the draft regulation will result in extra costs and concerns for targeted enterprises that will be required to provide information on the composition of fracturing fluids (which has also recently been required by the state of Texas) or the composition and management of residual materials resulting from their operations. This information will help the Minister and the SEA committee acquire better scientific and technical knowledge on this industry and its impact on public health and the environment.

However, despite general appearances, this regulation generated a number of sharp reactions from scientists and environmental groups. Their criticisms are mostly aimed at the composition and the mandate of the SEA committee. Public concerns have focused on the absence of citizen and environmental organizations representation on the committee and on the committee's objectivity - some members have previously expressed their support for the industry. Furthermore, the SEA has excluded contributions from experts from the energy, economic, public health and agricultural sectors, which some say are essential to determine the sustainability of such resource development in Québec. However, the government believes the information collected through the SEA should be sufficient to ensure the safe and sustainable development of the shale gas industry in Québec. One could question the relevance of collecting information on hydraulic fracturing of a few exploratory drilling sites in Québec, when the industry has been collecting this information for years on an operational level. According to some, it is very unlikely that the collected data could suddenly differ from that obtained in other states or provinces. For this reason, the President of Questerre has mentioned that these new regulations are a lot more political than scientific.

Be that as it may, if these two new draft regulations are adopted, the government of Québec is confident that this first step will contribute to reduce the population's fears and concerns over the exploitation of shale gas in populated areas of Québec.


ALBERTA

Alberta Land Stewardship Amendment Act

By: Roland Hung

The Alberta Land Stewardship Amendment Act, S.A. 2011 c.9 ("Amendment Act") was passed on May 10, 2011 and came into force on May 13, 2011.

The Alberta Land Stewardship Act, S.A. 2009, c. A-26.8 ("ALSA"), as it was originally enacted, was intended to:

  1. provide a means by which the Government of Alberta could direct and provide leadership in identifying the economic, environmental and social objectives of the Province;
  2. provide a means to plan for the future, recognizing the need to manage activity to meet the reasonably foreseeable needs of current and future generations of Albertans, including Aboriginal peoples; and
  3. create legislation and policy that would enable sustainable development by taking into consideration and responding to certain cumulative effects of the activities.

The ALSA attempted to create a single planning process that covered both private and public lands. It consolidated responsibility for land use planning that had historically been divided and spread across different government departments, agencies, and regulatory tribunals. It strived to ensure transparency and accountability in the regional planning process.

The Amendment Act endeavours to clarify the original intent and purposes of the ALSA. A brief discussion of the most significant amendments follows.

The amendments

  1. Add a qualifying section to the clause identifying the purposes of the ALSA

    The Amendment Act revises section 1 of the ALSA to add a provision providing that the Government must respect private property rights as follows:

    In carrying out the purposes of this Act ..... the Government must respect the property and other rights of individuals and must not infringe on those rights except with due process of law and to the extent necessary for the overall greater public interest.

    The new clause will, in all likelihood, open the door to individuals who believe that their property rights have been infringed to potentially argue in a court application that the infringement of property rights by the Government was more than was necessary for the Government to achieve the particular public interest goal of a regional plan.
  2. Clarify the definition of the term "statutory consent"

    The Amendment Act clarifies that various interests are not "statutory consents", including a certificate of title (section 3 of the Amendment Act adding a new subsection 2(2)).
  3. Permit a title holder to apply for a variance in the application of a regional plan

    The new section 15.1 of ALSA allows a land title holder to apply to the Minister to vary a regional plan as it affects that title holder. The Minister may grant the variance if the application: (1) is consistent with the purposes of the ALSA, (2) is not likely to diminish the spirit and intent of the plan, and (3) if refused will result in unreasonable hardship to the land titleholder without an offsetting public benefit.

    While the procedure for such applications will be prescribed by regulation, the proposed process could well result in a flood of applications.
  4. Provide a ground for compensation on the basis that a regional plan impairs individual rights

    Prior to the amendments, there is no right to compensation under the ALSA other than what can be claimed in relation to conservation directives or what may be allowed under other legislation. A conservation directive must be specifically set out in a regional land use plan. The land title holder subject to the conservation directive can apply for compensation from the government within 12 months of getting the notice of the directive. If the title holder and government cannot come to an agreement on the compensation, it would be determined by a provincial board or the courts.

    The Amendment Act revises the compensation provisions. First, it changes the onus from, "No person has a right to compensation except in the certain circumstances" to "A person has a right to compensation in the following circumstances". Payment of compensation under the revised ALSA may be more likely. Second, the amendments broadly defines "a compensable taking" as any negative impact on "a property right, title or interest giving rise to compensation in law or equity", which in theory would capture a larger number of individuals impacted.
  5. Allow a person directly affected by a regional plan to request a review

    The Amendment Act provides that a person "directly and adversely affected by a regional plan" may request a review of the plan. Upon receiving such a request, the Minister must establish a panel and charge the panel with the responsibility of reviewing the plan. It is envisaged that the review procedure will be prescribed by a subsequent regulation.
  6. Enable the Minister to issue binding directives to the secretariat and stewardship commissioner

    A new section 57.1 combined with an amendment to section 57 allows the Minister to issue directives to the stewardship commissioner and his or her staff. While this change may be less significant than the other measures discussed above, when read together with those measures, it permits the Minister to assert a greater degree of political control in the development and implementation of regional plans.

Conclusion

The ALSA was a controversial piece of legislation when it was first enacted and continues to generate a great deal of public debate. While the amendments attempt to bring clarity to address concerns about the balance between private rights and public interests, it remains to be seen whether the Amendment Act will accomplish this end. It appears, at least at a first glance, that the amendments shift this delicate balance in favour of private rights. In any event, a transparent, participatory, and accountable regional planning system is certainly in the best interest of Alberta and its people and these amendments may be a step towards achieving that end.


CASE COMMENT

Federal Court confirms finding in Standing Buffalo case that federal boards must act in accordance with s. 35 and assess consultation

By: Jaimie Lickers

Yellowknives Dene First Nation v. Canada (Attorney General), 2010 FC 1139

Federal Court, November 12, 2010

Available at: http://decisions.fct-cf.gc.ca/en/2010/2010fc1139/2010fc1139.html

The Facts

The Applicants, the Yellowknives Dene First Nation ("Yellowknives") and the Lutzel K'e Dene ("Lutzel K'e"), brought an application for judicial review of the decision of the Mackenzie Valley Land and Water Board (the "Board") to issue a land use permit for mineral exploration to North Arrow Minerals Inc. ("North Arrow") . The exploration was to occur on lands that formed part of the traditional territory of the Applicants.

In December 2008, North Arrow approached the Board and was advised to consult the affected First Nations. North Arrow provided information to the Chiefs and Councils of the Yellowknives and the Lutzel K'e. In response, North Arrow was presented with a template Exploration Agreement developed under the Akaitcho Exploration Guidelines. The template included ongoing consultation, employment and business opportunity, possible archeological study and other mitigation measures. Costs were to be born by the proponent North Arrow.

While the communities indicated that an Agreement must be signed, they also indicated willingness to negotiate. Both First Nations were informed by North Arrow that their proposed agreements were unacceptable. No further consultation occurred. North Arrow advised the Board that consultation with the Bands was complete and filed its application for the permit.

The Board notified the First Nations of the application and requested written comments. Both First Nations responded by informing the Board that the permit would infringe their constitutional rights and that they had not been properly consulted. The Board took the position that it is not responsible for determining whether Crown consultation has occurred. INAC advises the Board when consultation is complete and the Board then issues the land use permit. The Board consulted with INAC and was informed that the legal duty to consult had been met. The Board issued North Arrow the land use permit.

The Decision of the Court

The principal issues on review were whether the Board had a responsibility to evaluate the adequacy of the Crown's efforts to consult and whether the Applicants had been adequately consulted.

The Federal Court rejected the Respondent's submission that it had no statutory jurisdiction to consider whether the duty to consult had been met. Following the ruling of the Federal Court Appeal in Standing Buffalo, the Court held that a federal board must act in accordance with s. 35 of the Constitution and must take the concerns of Aboriginal people into account in the exercise of its jurisdiction. While the Court found that the Board was justified in inquiring of INAC whether consultation had taken place, it was not justified in relying on the word of one party alone.

In evaluating the adequacy of the consultation, the Court held that the Board was right to consider the efforts undertaken by North Arrow. However, the Court found that North Arrow's efforts had been entirely inadequate, that it had unilaterally cut off negotiations at the first offer and that it had failed to follow the Board's own guidelines on consultation. Finally, the Court stated that even if the Board's guidelines had been followed, it is not sufficient to establish a framework, process or system to facilitate negotiations and then place it on autopilot and hope for success. Rather it is necessary to evaluate the actual implementation and processes in each case.

The land use permit was quashed.

The decision serves as a reminder that project proponents and private sector entities must always be mindful of the potential impact of the Crown's duty to consult and accommodate. Failure to get it right can lead to significant delays as well as potential litigation and reputational costs.

This case is also a strong reminder for governments and industry that a consultation process without a face to face meeting is unlikely to be upheld by the courts.

Finally, this case reaffirms the earlier caselaw that emphasizes that consultation must take place before decisions are made and prior to any impact on potential rights.

Members of Gowlings' Aboriginal Law and Environmental Law Groups regularly provide advice on matters of consultation and accommodation to industry, Aboriginal groups and governments, including opinions, strategic advice, due diligence analysis, Alternative Dispute Resolution and litigation services.



WHAT'S NEW

Gowlings - Environmental Law for Business seminar was held on May 12, 2011

The Gowlings Environmental Law National Practice Group presented Gowlings –Environmental Law for Business on May 12, 2011. Outside experts and Gowlings' lawyers addressed new developments in the area of Environmental Law. To review the list of topics discussed during the seminar, please see:

http://www.gowlings.com/knowledgeCentre/publicationPDFs/Agenda%20-%20May%2012,%202011.pdf.

Harry Dahme spoke to the 4th Canadian Wastewater Management Conference on "Fisheries Act: Compliance and Enforcement".

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These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions