On January 27, 2016 the Minister of Environment and Climate
Change and the Minister of Natural Resources released a joint statement aimed at clarifying the
current state of major project reviews. As part of this statement,
changes to the review process for two significant pipeline projects
– the Trans Mountain Expansion Project and the Energy East
Pipeline – were outlined. For the furthest along of the two
projects – the Trans Mountain Expansion Project – the
Government stated that it will:
undertake deeper consultations with
Indigenous peoples and provide funding to support participation in
assess the upstream greenhouse gas
emissions associated with this project and make this information
appoint a Ministerial Representative
to engage communities, including Indigenous communities potentially
affected by the project, to seek their views and report back to the
Minister of Natural Resources.
In support of these measures, the Minister of Natural Resources
also announced that the timeframe for a Cabinet decision on these
two projects would be extended. For the Trans Mountain Expansion
Project this means that a Cabinet decision is now expected in
December 2016, four months later than the original August 2016
These statements come on the heels of the B.C. Supreme Court
ruling in Coastal First Nation v British Columbia, which
considered the role of British Columbia's environmental
assessment process in approving inter-provincial pipeline projects,
which are federal jurisdiction under our Constitution. Although the Court was clear that
B.C.'s environmental review process cannot frustrate the
federal approval process, it also ruled that:
B.C.'s environmental approval
process can be applicable to inter-provincial pipelines;
any project that the provincial
process applies to must obtain an environmental certificate
pursuant to the Environmental Assessment Act; and
First Nations consultation and
accommodation must be carried out by the Province before deciding
whether to issues an environmental certificate.
The federal government, through the Major Projects Management
Office of Natural Resources Canada, has been approaching First
Nations to commence a post-NEB engagement process. However,
notwithstanding the Coastal decision, the Province has not yet
approached potentially impacted communities.
While these changes may result in greater accommodation of First
Nations' concerns, it is unclear whether the government's
efforts will be sufficient to discharge the obligations owed to
potentially impacted Aboriginal groups along the pipeline corridor.
In a post-Tsilhqot'in world, Aboriginal consent is the
only way to guarantee complete project certainty. Only time will
tell whether the federal government's new approach will be
sufficient to achieve this consent. If consent is not forthcoming,
the world will be watching to see whether Canada still wishes to
proceed with project approval and, if so, whether Canada's
decision to proceed is consistent with the duties that our
government owes to Canada's First Peoples.
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Canada is a constitutional monarchy, a parliamentary democracy and a federation comprised of ten provinces and three territories. Canada's judiciary is independent of the legislative and executive branches of Government.
In Bank of Montreal v Bumper Development Corporation Ltd, 2016 ABQB 363, the Alberta Court of Queen's Bench enforced the "immediate replacement" provision in the Canadian Association of Petroleum Landmen 2007 Operating Procedure...
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