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Supreme Court of Canada Clarifies Duty to Consult and Accommodate Indigenous Populations - Sets Out Roadmap for Project Proponents on How to Satisfy DutySupreme Court of Canada Clarifies Duty to Consult and Accommodate Indigenous Populations - Sets Out Roadmap for Project Proponents on How to Satisfy Duty329BLG Blog PostMiles Pittman;Adam Chamberlain;Rick Williams;Alan L. Ross;Nadir André;Kent D. Howie;Steven Bodimpittman@blg.com | Miles Pittman | 693A30232E777C626C6763616E6164615C6D706974746D616E i:0#.w|blgcanada\mpittman;achamberlain@blg.com | Adam Chamberlain | 693A30232E777C626C6763616E6164615C616368616D6265726C61696E i:0#.w|blgcanada\achamberlain;rwilliams@blg.com | Rick Williams | 693A30232E777C626C6763616E6164615C726C77 i:0#.w|blgcanada\rlw;aross@blg.com | Alan L. Ross | 693A30232E777C626C6763616E6164615C61726F7373 i:0#.w|blgcanada\aross;nandre@blg.com | Nadir André | 693A30232E777C626C6763616E6164615C6E616E647265 i:0#.w|blgcanada\nandre;khowie@blg.com | Kent D. Howie | 693A30232E777C626C6763616E6164615C6B686F776965 i:0#.w|blgcanada\khowie;sbodi@blg.com | Steven Bodi | 693A30232E777C626C6763616E6164615C73626F6469 i:0#.w|blgcanada\sbodi The Supreme Court of Canada has unanimously clarified several features of the Crown’s duty to consult with and accommodate indigenous populations prior to project approvals being granted. The companion decisions of Canada’s top court in Clyde River (Hamlet) v. Petroleum Geo-Services Inc., 2017 SCC 40 (Clyde River) and Chippewas of the Thames First Nation v. Enbridge Pipelines Inc., 2017 SCC 41 (Chippewas) clarify when the duty to consult is triggered; confirmed that the Crown can discharge its duty to consult through the project approval process undertaken by the regulatory body (including the National Energy Board (NEB), which for the most part had declined to assess how a project affected Aboriginal or treaty rights); and also illustrated how to, and how not to, discharge the duty. In our view, these decisions set out benchmarks for discharging the duty to consult, and while the duty to consult is the Crown’s obligation, it is project proponents who are often left to carry out or bolster the consultation process. Without the duty being discharged, a project approval process cannot proceed, and therefore it is essential that the project proponent ensure the Crown’s duty is discharged. This can mean paying for participation in the process by affected Aboriginal parties, for example, or providing the requisite information about the project to the affected parties so that consultation can be robust. Therefore, while the Court was clear that each situation should be viewed independently, the Court provides an illustrative roadmap for discharging the duty to consult, and in doing so has reduced some of the uncertainty plaguing Canadian project approvals. We expect these decisions to be parsed closely by project proponents, to ensure that they have discharged the duty, as if it can be shown later that the Crown’s duty to consult was not discharged, any project approval would be quashed on judicial review. Therefore the stakes in ensuring the Crown has discharged its duty consult are extremely high. [Read more...]<p style="text-align:justify;"> <img class="ms-rtePosition-1" src="/energy/PublishingImages/Lists/Blog%20Posts/AllItems/Pillars%20of%20Justice.jpg" alt="" style="margin:5px;width:75px;height:75px;" /></p><p style="text-align:justify;">The Supreme Court of Canada has unanimously clarified several features of the Crown’s duty to consult with and accommodate indigenous populations prior to project approvals being granted. The companion decisions of Canada’s top court in <strong><em><u>Clyde River (Hamlet) v. Petroleum Geo-Services Inc.</u></em><u>, 2017 SCC 40</u></strong> (<strong><em>Clyde River</em></strong>) and <em> <strong><u>Chippewas of the Thames First Nation v. Enbridge Pipelines Inc.</u></strong></em><strong><u>, 2017 SCC 41</u></strong> (<strong><em>Chippewas</em></strong>) clarify when the duty to consult is triggered; confirmed that the Crown can discharge its duty to consult through the project approval process undertaken by the regulatory body  (including the National Energy Board (<strong>NEB</strong>), which for the most part had declined to assess how a project affected Aboriginal or treaty rights); and also illustrated how to, and how not to, discharge the duty. </p><p style="text-align:justify;">In our view, these decisions set out benchmarks for discharging the duty to consult, and while the duty to consult is the Crown’s obligation, it is project proponents who are often left to carry out or bolster the consultation process. Without the duty being discharged, a project approval process cannot proceed, and therefore it is essential that the project proponent ensure the Crown’s duty is discharged.  This can mean paying for participation in the process by affected Aboriginal parties, for example, or providing the requisite information about the project to the affected parties so that consultation can be robust. </p><p style="text-align:justify;">Therefore, while the Court was clear that each situation should be viewed independently, the Court provides an illustrative roadmap for discharging the duty to consult, and in doing so has reduced some of the uncertainty plaguing Canadian project approvals. We expect these decisions to be parsed closely by project proponents, to ensure that they have discharged the duty, as if it can be shown later that the Crown’s duty to consult was not discharged, any project approval would be quashed on judicial review. Therefore the stakes in ensuring the Crown has discharged its duty consult are extremely high. </p><p style="text-align:justify;"> <a href="/energy/Pages/Post.aspx?PID=329">[<em>Read more</em>...]</a></p> The Supreme Court of Canada has unanimously clarified several features of the Crown’s duty to consult with and accommodate indigenous populations prior to project approvals being granted. The companion decisions of Canada’s top court in Clyde River (Hamlet) v. Petroleum Geo-Services Inc., 2017 SCC 40 (Clyde River) and Chippewas of the Thames First Nation v. Enbridge Pipelines Inc., 2017 SCC 41 (Chippewas) clarify when the duty to consult is triggered; confirmed that the Crown can discharge its duty to consult through the project approval process undertaken by the regulatory body (including the National Energy Board (NEB), which for the most part had declined to assess how a project affected Aboriginal or treaty rights); and also illustrated how to, and how not to, discharge the duty. In our view, these decisions set out benchmarks for discharging the duty to consult, and while the duty to consult is the Crown’s obligation, it is project proponents who are often left to carry out or bolster the consultation process. Without the duty being discharged, a project approval process cannot proceed, and therefore it is essential that the project proponent ensure the Crown’s duty is discharged. This can mean paying for participation in the process by affected Aboriginal parties, for example, or providing the requisite information about the project to the affected parties so that consultation can be robust. Therefore, while the Court was clear that each situation should be viewed independently, the Court provides an illustrative roadmap for discharging the duty to consult, and in doing so has reduced some of the uncertainty plaguing Canadian project approvals. We expect these decisions to be parsed closely by project proponents, to ensure that they have discharged the duty, as if it can be shown later that the Crown’s duty to consult was not discharged, any project approval would be quashed on judicial review. Therefore the stakes in ensuring the Crown has discharged its duty consult are extremely high. BackgroundBoth the federal and provincial Crown owes a duty to consult indigenous populations whose Aboriginal or treaty rights are likely to be affected by a project approval. The duty arises from the Crown’s assumption of sovereignty over lands and resources formerly held by indigenous peoples. The scope of the duty is measured on a continuum, from minor or shallow consultation, to deep consultation. The scope depends on the strength of the Aboriginal rights claim of the affected indigenous population, and the seriousness of the potential impact of the exercise of those rights. Each duty to consult is unique, as it is based on a particular set of rights and impacts. One way to ensure the duty to consult is satisfied is through the project’s regulatory approval process itself. By ensuring meaningful Aboriginal participation in a process, and issuing a decision that is responsive to issues raised by affected Aboriginal populations, the Crown may well have discharged the duty to consult, depending on the breadth and depth of the scope of the duty. These two cases were likely chosen by the Court for their stark contrast, in order to illustrate how to, and how not to, discharge the duty. Process for Satisfying Duty to ConsultIn these two decisions, the Supreme Court lays out an illustrative road map for satisfying the duty to consult. We have set it out below. Determine when the duty to consult is triggered – if the regulatory body has the power to make a final decision on a regulatory application, and that decision affects treaty or Aboriginal rights, then the duty is triggered when the regulatory process commences. Assess whether the regulatory tribunal has the power to satisfy the Crown’s duty to consult – i.e. can the tribunal compel witnesses and issue decisions commensurate with the scope of the duty. If it does, and the Crown is relying on the regulatory process to satisfy the duty, it must be made clear to the affected indigenous parties that the Crown is so relying. We note that the NEB had not generally assessed how a project had assessed Aboriginal or treaty rights in its project approval process, and the Court shows here that in these circumstances it was well equipped to do so. Attempt to determine the scope of the duty by assessing the Aboriginal rights claim and the seriousness of the impact of the project on those rights. Proponents would be well-advised to assume that discharging the duty will require substantial effort and funds. Ensure that the Crown’s obligation to consult is upheld in the specific tribunal process, through notification and active participation by affected Aboriginal parties in the regulatory process, provision of a written decision, and attachment of appropriate conditions to protect Aboriginal rights. A. Duty Not Discharged and Approval Quashed Clyde River In Clyde River, Petroleum Geo-Services Inc. (PGS) and others applied under the Canada Oil and Gas Operations Act, the legislation governing offshore exploration in the Arctic, to the NEB to conduct offshore seismic testing off the northeast coast of Nunavut as required. The proposed project contemplated towing airguns through a project area, to produce underwater sound waves, annually between July and November for five years. It was clear that the testing could negatively affect the marine mammal harvesting rights of the local indigenous population, the Inuit. Under the Nunavut Land Claims Agreement (1993), the Inuit of Clyde River ceded all Aboriginal claims, rights, title and interests in the Nunavut Settlement Area, including Clyde River, in exchange for defined treaty rights, including the right to harvest marine mammals. The NEB launched an environmental assessment of the seismic testing, and the Inuit of Clyde River and others filed a petition against the project with the NEB. The NEB held meetings in various surrounding communities to collect public comment, and representatives of the project proponents attended these meetings. Community members asked basic questions about the effects of the seismic survey on marine mammals, but the project proponents were unable to answer many of them, including which marine mammals would be affected by the testing. The proponents answered “That’s a very difficult question to answer because we’re not the core experts.” Oral hearings were not held by the NEB, and through the process the affected Inuit population filed letters of comment with the NEB, expressing concerns about the inadequacy of the consultation and about the testing generally. The proponents ultimately attempted to satisfy the Inuit’s questions about the seismic testing by filing a 3,926 page document with the NEB, and having that delivered to the Clyde River offices. No further efforts were made to ensure the questions were answered, the document was not translated into Inuktitut (the Inuit language), and due to limited bandwidth on Baffin Island the document could not be downloaded. Subsequently the Inuit wrote to the Minister of Aboriginal Affairs and Northern Development stating that the duty had not been fulfilled, but could be fulfilled by a strategic environmental assessment. The Minister responded, disagreeing with the view that seismic testing should be put on hold pending completion of a strategic environmental assessment, and an NEB approval soon followed. The approval noted that marine mammals could be affected, but that the testing was unlikely to cause significant environmental effects, given the mitigation measures undertaken by the proponents. The Supreme Court’s AnalysisThe Supreme Court analyzed the process undertaken by the NEB, found that the duty to consult had not been discharged and quashed the approval. The analysis proceeded in four clear steps. First, the Court found that the NEB approval process triggered the duty to consult. Next, the Court found that the NEB had broad procedural powers to implement consultation, and the remedial powers to accommodate affected Aboriginal claims where necessary. Therefore the NEB’s process could be relied by the Crown to completely or partially fulfill the Crown’s duty – in our view, the NEB has historically not addressed aboriginal or treaty rights in its approval process. This is a bold statement by the Court, and it confirms that the NEB’s robust process itself, if used appropriately, can be used to wholly or partially discharge the Crown’s duty to consult. Third, the Court had no difficulty characterizing the required level of consultation as “deep”, at the highest end of the continuum. In accordance with its previous jurisprudence, deep consultation requires “a strong prima facie case for the claim is established, the right and potential infringement is of high significance and the risk of non-compensable damages is high”. Here, there were established treaty rights that were at stake, as well as deep cultural attachment to marine mammals, and a significant risk that non-compensable damages would result. Fourth, the Court determined that the NEB’s process did not discharge the duty to consult. The NEB could have required oral hearings and formal participation in the process, but instead only limited opportunities for participation were made available. There was no participant funding. The proponents did not answer basic questions going to the heart of the treaty right, and in the words of the Court, “to put it mildly, furnishing answers to questions that went to the heart of the treaty rights at stake in the form of a practically inaccessible document dump months after the questions were initially asked in person is not true consultation.” We question whether the outcome of this matter would have been different had the report been provided sooner and in an accessible format, along with capacity funding for expert review along with sufficient time for that review to occur. The proponents’ failure to do so indicates their critical role in ensuring the Crown’s duty to consult is met. B. Duty Discharged ChippewasEnbridge Pipelines applied to the NEB to modify its Line 9 oil pipeline, reversing the flow of part of the pipeline, increasing its capacity and widening its specifications so it could carry heavy crude oil. The NEB held a public hearing, and 19 Aboriginal groups, including the Chippewas of the Thames First Nation, were informed of the proposed project and the NEB hearing process. The Chippewas of the Thames participated in the NEB process, and after their participation was complete, wrote a letter to the Crown, asserting Aboriginal and treaty rights, outlining the project’s potential impact, and stating that no Crown consultation had taken place. The Minister of Natural Resources responded after the NEB process was complete, stating that he would be relying on the NEB’s process to fulfil the duty to consult. The NEB approved the project subject to conditions, some of which related to indigenous communities. It assessed the potential impact on Aboriginal rights as being limited, given that no new land would be acquired as a result of the project. Therefore, the NEB was satisfied that potentially affected Aboriginal groups had the opportunity to share their views through the NEB. The conditions required Enbridge to file an Environmental Protection Plan, an Ongoing Engagement Report and required Enbridge to include Aboriginal groups in Enbridge’s continuing education plan. The Chippewas of the Thames appealed, stating that the approval could not be issued without the duty to consult and accommodate being met; the Crown and Enbridge argued that the duty could be met through a regulatory hearing, and that the duty to accommodate was met through the conditions that were imposed.The Supreme Court’s AnalysisThe Supreme Court went through a remarkably similar process as it did in Clyde River when analyzing the Crown’s duty to consult the Chippewas of the Thames River. First, it held that the commencement of the NEB process triggered the duty to consult. Second, it held that the duty to consult can be fulfilled by a regulatory agency, provided the agency possesses the statutory power to do what the duty to consult requires in the circumstances. If the agency does not have the power or if it does not provide the adequate consultation and accommodation, the Crown must do so independently. As the NEB was the final decision-maker on this project, it was required to consider whether the Crown’s consultation was adequate, and was therefore capable of satisfying the Crown’s duty to consult. Third, while it did not specifically address where on the continuum of consultation this matter fell, it found that the Crown’s duty to consult was discharged by the NEB process. In doing so, the Court held that the opportunity to participate in the hearings was provided and taken, a written decision was issued recognizing the treaty rights, and suitable conditions were imposed. It also found that any potential impacts on the rights of the Chippewas of the Thames were minimal and could reasonably be mitigated, thus implying that the duty to consult was somewhat less onerous than in Clyde River. Finally, it found that the NEB had successfully balanced the treaty rights of the First Nation and the economic interests of Enbridge at the accommodation stage.Though the Crown failed to notify the Chippewas of the Thames that it intended to rely on the NEB hearing to discharge the duty to consult, and while the Chippewas argued that was fatal to the application, the Supreme Court found that they were provided with opportunities to participate, and did participate, in the process. Nevertheless, if project proponents wish to rely on the regulatory process to discharge the duty to consult, they would be well-advised to advise affected parties in advance.Conclusions and ImplicationsThese decisions confirm and clarify the process that project proponents and regulators should follow to satisfy the duty to consult and accommodate. Parties may try to copy what Enbridge did in on Line 9, and will avoid the Clyde River process undertaken by PGS and its partners. Provided the duty is assessed, and robustly discharged, applications to quash coming up after the approval is issued seem to have less chance of success. These decisions are very clearly and concisely written, and effectively show what to do, and what not to do. They therefore inject additional certainty into how the approval process should deal with the duty to consult –certainty which is more than welcome. <p style="text-align:justify;"> <img class="ms-rtePosition-1" src="/energy/PublishingImages/Lists/Blog%20Posts/AllItems/Pillars%20of%20Justice.jpg" alt="" style="margin:5px;width:310px;" /></p><p style="text-align:justify;">The Supreme Court of Canada has unanimously clarified several features of the Crown’s duty to consult with and accommodate indigenous populations prior to project approvals being granted. The companion decisions of Canada’s top court in <strong><em><u>Clyde River (Hamlet) v. Petroleum Geo-Services Inc.</u></em><u>, 2017 SCC 40</u></strong> (<strong><em>Clyde River</em></strong>) and <em> <strong><u>Chippewas of the Thames First Nation v. Enbridge Pipelines Inc.</u></strong></em><strong><u>, 2017 SCC 41</u></strong> (<strong><em>Chippewas</em></strong>) clarify when the duty to consult is triggered; confirmed that the Crown can discharge its duty to consult through the project approval process undertaken by the regulatory body  (including the National Energy Board (<strong>NEB</strong>), which for the most part had declined to assess how a project affected Aboriginal or treaty rights); and also illustrated how to, and how not to, discharge the duty. </p><p style="text-align:justify;">In our view, these decisions set out benchmarks for discharging the duty to consult, and while the duty to consult is the Crown’s obligation, it is project proponents who are often left to carry out or bolster the consultation process. Without the duty being discharged, a project approval process cannot proceed, and therefore it is essential that the project proponent ensure the Crown’s duty is discharged.  This can mean paying for participation in the process by affected Aboriginal parties, for example, or providing the requisite information about the project to the affected parties so that consultation can be robust. </p><p style="text-align:justify;">Therefore, while the Court was clear that each situation should be viewed independently, the Court provides an illustrative roadmap for discharging the duty to consult, and in doing so has reduced some of the uncertainty plaguing Canadian project approvals. We expect these decisions to be parsed closely by project proponents, to ensure that they have discharged the duty, as if it can be shown later that the Crown’s duty to consult was not discharged, any project approval would be quashed on judicial review. Therefore the stakes in ensuring the Crown has discharged its duty consult are extremely high. </p><p style="text-align:justify;"><strong><u>Background</u></strong></p><p style="text-align:justify;">Both the federal and provincial Crown owes a duty to consult indigenous populations whose Aboriginal or treaty rights are likely to be affected by a project approval. The duty arises from the Crown’s assumption of sovereignty over lands and resources formerly held by indigenous peoples. The scope of the duty is measured on a continuum, from minor or shallow consultation, to deep consultation.  The scope depends on the strength of the Aboriginal rights claim of the affected indigenous population, and the seriousness of the potential impact of the exercise of those rights. Each duty to consult is unique, as it is based on a particular set of rights and impacts.  </p><p style="text-align:justify;">One way to ensure the duty to consult is satisfied is through the project’s regulatory approval process itself. By ensuring meaningful Aboriginal participation in a process, and issuing a decision that is responsive to issues raised by affected Aboriginal populations, the Crown may well have discharged the duty to consult, depending on the breadth and depth of the scope of the duty. </p><p style="text-align:justify;">These two cases were likely chosen by the Court for their stark contrast, in order to illustrate how to, and how not to, discharge the duty. </p><p style="text-align:justify;"><strong><u>Process for Satisfying Duty to Consult</u></strong></p><p style="text-align:justify;">In these two decisions, the Supreme Court lays out an illustrative road map for satisfying the duty to consult.  We have set it out below. </p><ol style="text-align:justify;"><li><strong>Determine when the duty to consult is triggered – if the regulatory body has the power to make a final decision on a regulatory application, and that decision affects treaty or Aboriginal rights, then the duty is triggered when the regulatory process commences. </strong></li><li><strong>Assess whether the regulatory tribunal has the power to satisfy the Crown’s duty to consult – i.e. can the tribunal compel witnesses and issue decisions commensurate with the scope of the duty. If it does, and the Crown is relying on the regulatory process to satisfy the duty, it must be made clear to the affected indigenous parties that the Crown is so relying.  We note that the NEB had not generally assessed how a project had assessed Aboriginal or treaty rights in its project approval process, and the Court shows here that in these circumstances it was well equipped to do so. </strong></li><li><strong>Attempt to determine the scope of the duty by assessing the Aboriginal rights claim and the seriousness of the impact of the project on those rights. Proponents would be well-advised to assume that discharging the duty will require substantial effort and funds. </strong></li><li><strong>Ensure that the Crown’s obligation to consult is upheld in the specific tribunal process, through notification and active participation by affected Aboriginal parties in the regulatory process, provision of a written decision, and attachment of appropriate conditions to protect Aboriginal rights.<br></strong></li></ol><p style="text-align:justify;margin-left:20px;"><strong>A. </strong><strong><u>Duty Not Discharged and Approval Quashed: Clyde River</u></strong> </p><p style="text-align:justify;">In <em>Clyde River</em>, Petroleum Geo-Services Inc. (<strong>PGS</strong>) and others applied under the <em>Canada Oil and Gas Operations Act</em>, the legislation governing offshore exploration in the Arctic, to the NEB to conduct offshore seismic testing off the northeast coast of Nunavut as required. The proposed project contemplated towing airguns through a project area, to produce underwater sound waves, annually between July and November for five years. </p><p style="text-align:justify;">It was clear that the testing could negatively affect the marine mammal harvesting rights of the local indigenous population, the Inuit. Under the<em> Nunavut Land Claims Agreement</em> (1993), the Inuit of Clyde River ceded all Aboriginal claims, rights, title and interests in the Nunavut Settlement Area, including Clyde River, in exchange for defined treaty rights, including the right to harvest marine mammals. </p><p style="text-align:justify;">The NEB launched an environmental assessment of the seismic testing, and the Inuit of Clyde River and others filed a petition against the project with the NEB. The NEB held meetings in various surrounding communities to collect public comment, and representatives of the project proponents attended these meetings. Community members asked basic questions about the effects of the seismic survey on marine mammals, but the project proponents were unable to answer many of them, including which marine mammals would be affected by the testing. The proponents answered “That’s a very difficult question to answer because we’re not the core experts.” Oral hearings were not held by the NEB, and through the process the affected Inuit population filed letters of comment with the NEB, expressing concerns about the inadequacy of the consultation and about the testing generally. </p><p style="text-align:justify;">The proponents ultimately attempted to satisfy the Inuit’s questions about the seismic testing by filing a 3,926 page document with the NEB, and having that delivered to the Clyde River offices. No further efforts were made to ensure the questions were answered, the document was not translated into Inuktitut (the Inuit language), and due to limited bandwidth on Baffin Island the document could not be downloaded. </p><p style="text-align:justify;">Subsequently the Inuit wrote to the Minister of Aboriginal Affairs and Northern Development stating that the duty had not been fulfilled, but could be fulfilled by a strategic environmental assessment. The Minister responded, disagreeing with the view that seismic testing should be put on hold pending completion of a strategic environmental assessment, and an NEB approval soon followed. The approval noted that marine mammals could be affected, but that the testing was unlikely to cause significant environmental effects, given the mitigation measures undertaken by the proponents. </p><p style="text-align:justify;"><strong>The Supreme Court’s Analysis</strong></p><p style="text-align:justify;">The Supreme Court analyzed the process undertaken by the NEB, found that the duty to consult had not been discharged and quashed the approval. The analysis proceeded in four clear steps. </p><p style="text-align:justify;">First, the Court found that the NEB approval process triggered the duty to consult. </p><p style="text-align:justify;">Next, the Court found that the NEB had broad procedural powers to implement consultation, and the remedial powers to accommodate affected Aboriginal claims where necessary. Therefore the NEB’s process could be relied by the Crown to completely or partially fulfill the Crown’s duty – in our view, the NEB has historically not addressed aboriginal or treaty rights in its approval process. This is a bold statement by the Court, and it confirms that the NEB’s robust process itself, if used appropriately, can be used to wholly or partially discharge the Crown’s duty to consult. </p><p style="text-align:justify;">Third, the Court had no difficulty characterizing the required level of consultation as “deep”, at the highest end of the continuum<em>. </em>In accordance with its previous jurisprudence, deep consultation requires “a strong <em>prima facie</em> case for the claim is established, the right and potential infringement is of high significance and the risk of non-compensable damages is high”. Here, there were established treaty rights that were at stake, as well as deep cultural attachment to marine mammals, and a significant risk that non-compensable damages would result. </p><p style="text-align:justify;">Fourth, the Court determined that the NEB’s process did not discharge the duty to consult. The NEB could have required oral hearings and formal participation in the process, but instead only limited opportunities for participation were made available. There was no participant funding. The proponents did not answer basic questions going to the heart of the treaty right, and in the words of the Court, “to put it mildly, furnishing answers to questions that went to the heart of the treaty rights at stake in the form of a practically inaccessible document dump months after the questions were initially asked in person is not true consultation.”  </p><p style="text-align:justify;">We question whether the outcome of this matter would have been different had the report been provided sooner and in an accessible format, along with capacity funding for expert review along with sufficient time for that review to occur. The proponents’ failure to do so indicates their critical role in ensuring the Crown’s duty to consult is met. </p><p style="text-align:justify;margin-left:20px;"><strong><u>B. Duty Discharged: Chippewas</u></strong></p><p style="text-align:justify;">Enbridge Pipelines applied to the NEB to modify its Line 9 oil pipeline, reversing the flow of part of the pipeline, increasing its capacity and widening its specifications so it could carry heavy crude oil. The NEB held a public hearing, and 19 Aboriginal groups, including the Chippewas of the Thames First Nation, were informed of the proposed project and the NEB hearing process.  The Chippewas of the Thames participated in the NEB process, and after their participation was complete, wrote a letter to the Crown, asserting Aboriginal and treaty rights, outlining the project’s potential impact, and stating that no Crown consultation had taken place. The Minister of Natural Resources responded after the NEB process was complete, stating that he would be relying on the NEB’s process to fulfil the duty to consult. </p><p style="text-align:justify;">The NEB approved the project subject to conditions, some of which related to indigenous communities.  It assessed the potential impact on Aboriginal rights as being limited, given that no new land would be acquired as a result of the project. Therefore, the NEB was satisfied that potentially affected Aboriginal groups had the opportunity to share their views through the NEB.  The conditions required Enbridge to file an Environmental Protection Plan, an Ongoing Engagement Report and required Enbridge to include Aboriginal groups in Enbridge’s continuing education plan.  </p><p style="text-align:justify;">The Chippewas of the Thames appealed, stating that the approval could not be issued without the duty to consult and accommodate being met; the Crown and Enbridge argued that the duty could be met through a regulatory hearing, and that the duty to accommodate was met through the conditions that were imposed.</p><p style="text-align:justify;"><strong>The Supreme Court’s Analysis</strong></p><p style="text-align:justify;">The Supreme Court went through a remarkably similar process as it did in Clyde River when analyzing the Crown’s duty to consult the Chippewas of the Thames River. </p><p style="text-align:justify;">First, it held that the commencement of the NEB process triggered the duty to consult. </p><p style="text-align:justify;">Second, it held that the duty to consult can be fulfilled by a regulatory agency, provided the agency possesses the statutory power to do what the duty to consult requires in the circumstances. If the agency does not have the power or if it does not provide the adequate consultation and accommodation, the Crown must do so independently. As the NEB was the final decision-maker on this project, it was required to consider whether the Crown’s consultation was adequate, and was therefore capable of satisfying the Crown’s duty to consult. </p><p style="text-align:justify;">Third, while it did not specifically address where on the continuum of consultation this matter fell, it found that the Crown’s duty to consult was discharged by the NEB process. In doing so, the Court held that the opportunity to participate in the hearings was provided and taken, a written decision was issued recognizing the treaty rights, and suitable conditions were imposed. It also found that any potential impacts on the rights of the Chippewas of the Thames were minimal and could reasonably be mitigated, thus implying that the duty to consult was somewhat less onerous than in <em>Clyde River</em>. Finally, it found that the NEB had successfully balanced the treaty rights of the First Nation and the economic interests of Enbridge at the accommodation stage.</p><p style="text-align:justify;">Though the Crown failed to notify the Chippewas of the Thames that it intended to rely on the NEB hearing to discharge the duty to consult, and while the Chippewas argued that was fatal to the application, the Supreme Court found that they were provided with opportunities to participate, and did participate, in the process. Nevertheless, if project proponents wish to rely on the regulatory process to discharge the duty to consult, they would be well-advised to advise affected parties in advance.</p><p style="text-align:justify;"><strong><u>Conclusions and Implications</u></strong></p><p style="text-align:justify;">These decisions confirm and clarify the process that project proponents and regulators should follow to satisfy the duty to consult and accommodate. Parties may try to copy what Enbridge did in on Line 9, and will avoid the Clyde River process undertaken by PGS and its partners. Provided the duty is assessed, and robustly discharged, applications to quash coming up after the approval is issued seem to have less chance of success. These decisions are very clearly and concisely written, and effectively show what to do, and what not to do. They therefore inject additional certainty into how the approval process should deal with the duty to consult –certainty which is more than welcome. </p><div style="text-align:justify;">  </div>7/27/2017 4:00:00 AM2017-07-27T04:00:00ZTrue1float;#7.00000000000000float;#2017.00000000000string;#Julyfloat;#201707.000000000GP0|#23e50663-be85-467e-acf9-7150e42ed669;L0|#023e50663-be85-467e-acf9-7150e42ed669|Energy;GTSet|#939fe804-8a2a-4cfa-af8f-5756b32ac3ca;GP0|#79f5b025-e6dd-4c66-873b-67e8780cf972;L0|#079f5b025-e6dd-4c66-873b-67e8780cf972|Regulatory;GP0|#2cad29ca-54e6-43bb-a056-02b01b063aaa;L0|#02cad29ca-54e6-43bb-a056-02b01b063aaa|AboriginalEnergy;Regulatory;Aboriginal
The Limits of Judicial Intervention Where an Administrative Decision is Not Yet CompleteThe Limits of Judicial Intervention Where an Administrative Decision is Not Yet Complete328BLG Blog PostMichael Gaber;Miles Pittmanmgaber@blg.com | Michael Gaber | 693A30232E777C626C6763616E6164615C6D6761626572 i:0#.w|blgcanada\mgaber;mpittman@blg.com | Miles Pittman | 693A30232E777C626C6763616E6164615C6D706974746D616E i:0#.w|blgcanada\mpittman […] absent exceptional circumstances, parties cannot proceed to the court system until the administrative process has run its course [Canada (Border Services Agency) v CB Powell Limited, 2010 FCA 61 at para 31, [2011] 2 FCR 332]. The recent federal court case of Northern Cross (Yukon) Limited v Canada (Attorney General), 2017 FC 622, 2017 CarswellNat 2962 [Northern Cross] reaffirms the general principle that courts will be hesitant to intervene where an administrative decision is not yet finalized. [Read more...]<img alt="Yukon Winter" src="/energy/PublishingImages/Lists/Blog%20Posts/AllItems/Yukon-Winter.jpg" style="width:75px;margin-right:10px;float:left;" /> <p>[…]<em> absent exceptional circumstances, parties cannot proceed to the court system until the administrative process has run its course </em>[<em>Canada (Border Services Agency) v CB Powell Limited</em>, 2010 FCA 61 at para 31, [2011] 2 FCR 332].</p><p> The recent federal court case of<em> Northern Cross (Yukon) Limited v Canada (Attorney General)</em>, 2017 FC 622, 2017 CarswellNat 2962 [<em>Northern Cross</em>] reaffirms the general principle that courts will be hesitant to intervene where an administrative decision is not yet finalized. </p><p>[<em><a href="/energy/Pages/Post.aspx?PID=328">Read more</a></em>...]</p> […] absent exceptional circumstances, parties cannot proceed to the court system until the administrative process has run its course [Canada (Border Services Agency) v CB Powell Limited, 2010 FCA 61 at para 31, [2011] 2 FCR 332]. The recent federal court case of Northern Cross (Yukon) Limited v Canada (Attorney General), 2017 FC 622, 2017 CarswellNat 2962 [Northern Cross] reaffirms the general principle that courts will be hesitant to intervene where an administrative decision is not yet finalized. Background Northern Cross (Yukon) Limited (“Northern Cross”) submitted a proposal to a designated office of the Yukon Environmental and Socio-economic Assessment Board (the “Board”) for a multi-well exploration project in the Yukon. The designated office, after a lengthy and detailed process, referred the proposal to the Executive Committee of the Board for screening. The designated office did not make a final determination on the proposal. Instead, the proposal was referred because the designated office “could not determine whether the Project will have, or is likely to have, significant socio-economic effects” (para 29). The effect of referring the proposal to the Executive Committee of the Board was that any actual determination of the proposal would likely be delayed by one to two years. The designated office could not determine whether the proposal would have significant adverse environmental or socio-economic effects on a rather narrow ground. The designated office concluded it could not determine the “probability or magnitude” of changes to caribou migration. The need for greater certainty on caribou migration was necessary given the importance of the animals’ relation to the First Nation and Inuvialuit way of life, and the unprecedented scale of the proposal (para 28). Northern Cross applied for judicial review of the decision referring, the assessment of the proposal to the Executive Committee of the Board for screening, alleging that the process included breaches of procedural fairness and the decision to refer the proposal was a reviewable error. The Decision Although a number of issues were raised on appeal, Justice Boswell determined the federal court did have jurisdiction to hear the application but then determined the application for judicial review was premature; the application was dismissed with costs. Analysis The Legislative Framework and the Referral for Screening Northern Cross’ proposal was submitted to the designated office pursuant to the Yukon Environmental and Socio-economic Assessment Act, SC 2003, c 7 (the “Act”). The designated office is staffed by members of the Board, and the Board exists to implement the Act which includes, among other things, ensuring “that projects are undertaken in accordance with principles that foster beneficial socio-economic change without undermining the ecological and social systems on which communities and their residents, and societies in general, depend” (s 5(2)(e)). A designated office will conduct a review of a proposal to determine the adequacy of the submissions, the scope of the proposed project, and whether the project will be located, or might have significant environmental or socio-economic effects, in the territory of a First Nation (para 5). A designated office may then conclude its evaluation by making a recommendation or by referring the project to the Executive Committee of the Board for screening (s 56(1)). Pursuant to section 56(1)(d), the designated office referred the proposal to the Executive Committee of the Board for screening [s 56(1)] A designated office shall […] conclude its evaluation of the project by […] (d) referring the project to the executive committee for a screening, if, […], it cannot determine whether the project will have, or is likely to have, significant adverse environmental or socio- economic effects. The Federal Court’s Jurisdiction Jurisdiction was a threshold issue as the Act granted the Supreme Court of Yukon jurisdiction to hear applications for judicial review of decisions made under the Act (s 116) Notwithstanding the exclusive jurisdiction referred to in section 18 of the Federal Courts Act, the Attorney General of Canada, the territorial minister or anyone directly affected by the matter in respect of which relief is sought may make an application to the Supreme Court of Yukon for any relief against the Board, a designated office, the executive committee, a panel of the Board, a joint panel or a decision body […] Justice Boswell first concluded the Federal Court had jurisdiction to hear the application under the Federal Courts Act, RSC 1985, c F-7 and then concluded that section 116 of the Act did not displace the Federal Court’s jurisdiction. Instead, section 116 simply granted the Supreme Court of Yukon concurrent jurisdiction to review administrative actions made under the Act (para 42). That the Application was Premature The Attorney General argued the application was premature as the proposal’s reference to the Executive Committee of the Board was merely an “interlocutory step” in the ongoing assessment process; no decision was yet reviewable as the process had not concluded (para 50). Northern Cross argued the application was not premature as the project had reached a “natural break” and that the designated office itself had exhausted its statutory authority (para 46). Further, judicial review was necessary to remedy the breaches of procedural fairness. Justice Boswell was not persuaded by Northern Cross’ submissions. He cited a number of cases highlighting the principle “that a court should not review an administrative decision that has not yet been finalized” (para 54). He found that court intervention was not appropriate as the administrative process involving the proposal was not complete (para 60); following screening by the Executive Committee of the Board, the proposal could very well be approved. Finally, Justice Boswell was satisfied that the Board’s screening would provide Northern Cross with its opportunity to demonstrate why the proposal should be approved (para 61). Accordingly, the Act still provided Northern Cross with a clear method of addressing its concerns. Justice Boswell concluded an incomplete administrative process or a ‘referral decision’ will not be subject to judicial review absent “exceptional circumstances or a contravention of the requirements of procedural fairness” (para 58). He held there were no exceptional circumstances to warrant court intervention at the time of the application (para 60). Although Northern Cross did allege breaches of procedural fairness, Justice Boswell concluded those alleged breaches could still be addressed by the Executive Committee of the Board. The policy considerations underlying the judgment of Northern Cross emphasize the need for the efficient use of judicial resources and the desire for courts not to overstep their authority in reviewing decisions of administrative bodies. As stated in Re Wilson and Atomic Energy of Canada Ltd, 2015 FCA 17 at para 31, [2015] 4 FCR 467 The general rule against premature judicial reviews reflects at least two public law values. One is good administration — encouraging cost savings, efficiencies, promptness and allowing administrative expertise and specialization to be fully brought to bear on the problem before reviewing courts are involved. Another is democracy — elected legislators have vested the primary responsibility of decision-making in adjudicators, not the judiciary. Conclusion Absent exceptional circumstances or issues of procedural fairness, a court will not intervene on an administrative process that has yet to conclude. The judgment of Northern Cross provides the latest example of this general principle. Further, allegations of breaches of procedural fairness alone will not alone persuade a court to intervene. A court must be convinced that intervention is completely necessary to address the alleged breaches. Where the administrative process has not yet concluded, this threshold remains high.<img alt="Yukon Winter" src="/energy/PublishingImages/Lists/Blog%20Posts/AllItems/Yukon-Winter.jpg" style="width:310px;height:217px;margin-right:10px;float:left;" /> <p> […]<em> absent exceptional circumstances, parties cannot proceed to the court system until the administrative process has run its course </em>[<em>Canada (Border Services Agency) v CB Powell Limited</em>, 2010 FCA 61 at para 31, [2011] 2 FCR 332].</p><p> The recent federal court case of<em> Northern Cross (Yukon) Limited v Canada (Attorney General)</em>, 2017 FC 622, 2017 CarswellNat 2962 [<em>Northern Cross</em>] reaffirms the general principle that courts will be hesitant to intervene where an administrative decision is not yet finalized. </p><p> <strong>Background</strong> </p><p>Northern Cross (Yukon) Limited (“Northern Cross”) submitted a proposal to a designated office of the Yukon Environmental and Socio-economic Assessment Board (the “Board”) for a multi-well exploration project in the Yukon. The designated office, after a lengthy and detailed process, referred the proposal to the Executive Committee of the Board for screening. The designated office did not make a final determination on the proposal. Instead, the proposal was referred because the designated office “could not determine whether the Project will have, or is likely to have, significant socio-economic effects” (para 29). The effect of referring the proposal to the Executive Committee of the Board was that any actual determination of the proposal would likely be delayed by one to two years.</p><p>The designated office could not determine whether the proposal would have significant adverse environmental or socio-economic effects on a rather narrow ground. The designated office concluded it could not determine the “probability or magnitude” of changes to caribou migration. The need for greater certainty on caribou migration was necessary given the importance of the animals’ relation to the First Nation and Inuvialuit way of life, and the unprecedented scale of the proposal (para 28).</p><p>Northern Cross applied for judicial review of the decision referring, the assessment of the proposal to the Executive Committee of the Board for screening, alleging that the process included breaches of procedural fairness and the decision to refer the proposal was a reviewable error.</p><p> <strong>The Decision</strong> </p><p>Although a number of issues were raised on appeal, Justice Boswell determined the federal court did have jurisdiction to hear the application but then determined the application for judicial review was premature; the application was dismissed with costs.</p><p> <strong>Analysis</strong> </p><p> <em>The Legislative Framework and the Referral for Screening</em> </p><p>Northern Cross’ proposal was submitted to the designated office pursuant to the <em>Yukon Environmental and Socio-economic Assessment Act</em>, SC 2003, c 7 (the “Act”). The designated office is staffed by members of the Board, and the Board exists to implement the Act which includes, among other things, ensuring “that projects are undertaken in accordance with principles that foster beneficial socio-economic change without undermining the ecological and social systems on which communities and their residents, and societies in general, depend” (s 5(2)(e)).</p><p>A designated office will conduct a review of a proposal to determine the adequacy of the submissions, the scope of the proposed project, and whether the project will be located, or might have significant environmental or socio-economic effects, in the territory of a First Nation (para 5). A designated office may then conclude its evaluation by making a recommendation or by referring the project to the Executive Committee of the Board for screening (s 56(1)). Pursuant to section 56(1)(d), the designated office referred the proposal to the Executive Committee of the Board for screening:</p><p style="text-align:justify;margin-left:20px;"> <em>[s 56(1)] A designated office shall […] conclude its evaluation of the project by </em></p><p style="text-align:justify;margin-left:40px;">[…] </p><p style="text-align:justify;margin-left:40px;"> <em>(d) referring the project to the executive committee for a screening, if, […], it cannot determine whether the project will have, or is likely to have, significant adverse environmental or socio- economic effects. </em></p><p> <em>The Federal Court’s Jurisdiction </em></p><p>Jurisdiction was a threshold issue as the Act granted the Supreme Court of Yukon jurisdiction to hear applications for judicial review of decisions made under the Act (s 116): </p><p style="text-align:justify;margin-left:20px;"> <em>Notwithstanding the exclusive jurisdiction referred to in section 18 of the Federal Courts Act, the Attorney General of Canada, the territorial minister or anyone directly affected by the matter in respect of which relief is sought may make an application to the Supreme Court of Yukon for any relief against the Board, a designated office, the executive committee, a panel of the Board, a joint panel or a decision body […] </em></p><p>Justice Boswell first concluded the Federal Court had jurisdiction to hear the application under the <em>Federal Courts Act</em>, RSC 1985, c F-7 and then concluded that section 116 of the Act did not displace the Federal Court’s jurisdiction. Instead, section 116 simply granted the Supreme Court of Yukon concurrent jurisdiction to review administrative actions made under the Act (para 42).</p><p> <em>That the Application was Premature</em> </p><p>The Attorney General argued the application was premature as the proposal’s reference to the Executive Committee of the Board was merely an “interlocutory step” in the ongoing assessment process; no decision was yet reviewable as the process had not concluded (para 50). Northern Cross argued the application was not premature as the project had reached a “natural break” and that the designated office itself had exhausted its statutory authority (para 46). Further, judicial review was necessary to remedy the breaches of procedural fairness.</p><p>Justice Boswell was not persuaded by Northern Cross’ submissions. He cited a number of cases highlighting the principle “that a court should not review an administrative decision that has not yet been finalized” (para 54). He found that court intervention was not appropriate as the administrative process involving the proposal was not complete (para 60); following screening by the Executive Committee of the Board, the proposal could very well be approved. Finally, Justice Boswell was satisfied that the Board’s screening would provide Northern Cross with its opportunity to demonstrate why the proposal should be approved (para 61). Accordingly, the Act still provided Northern Cross with a clear method of addressing its concerns. </p><p>Justice Boswell concluded an incomplete administrative process or a ‘referral decision’ will not be subject to judicial review absent “exceptional circumstances or a contravention of the requirements of procedural fairness” (para 58). He held there were no exceptional circumstances to warrant court intervention at the time of the application (para 60). Although Northern Cross did allege breaches of procedural fairness, Justice Boswell concluded those alleged breaches could still be addressed by the Executive Committee of the Board.  </p><p>The policy considerations underlying the judgment of <em>Northern Cross</em> emphasize the need for the efficient use of judicial resources and the desire for courts not to overstep their authority in reviewing decisions of administrative bodies. As stated in <em>Re Wilson and Atomic Energy of Canada Ltd</em>, 2015 FCA 17 at para 31, [2015] 4 FCR 467:</p><p style="text-align:justify;margin-left:20px;"> <em>The general rule against premature judicial reviews reflects at least two public law values. One is good administration — encouraging cost savings, efficiencies, promptness and allowing administrative expertise and specialization to be fully brought to bear on the problem before reviewing courts are involved. Another is democracy — elected legislators have vested the primary responsibility of decision-making in adjudicators, not the judiciary.</em></p><p> <strong>Conclusion</strong></p><p>Absent exceptional circumstances or issues of procedural fairness, a court will not intervene on an administrative process that has yet to conclude. The judgment of <em>Northern Cross</em> provides the latest example of this general principle. Further, allegations of breaches of procedural fairness alone will not alone persuade a court to intervene. A court must be convinced that intervention is completely necessary to address the alleged breaches. Where the administrative process has not yet concluded, this threshold remains high.</p>7/25/2017 4:00:00 AM2017-07-25T04:00:00ZTrue1float;#7.00000000000000float;#2017.00000000000string;#Julyfloat;#201707.000000000GP0|#083b07fe-18bf-457e-a494-ae88d7a4dc72;L0|#0083b07fe-18bf-457e-a494-ae88d7a4dc72|Mining;GTSet|#939fe804-8a2a-4cfa-af8f-5756b32ac3ca;GP0|#60a6f187-f0e0-4c65-a06c-b97febf6542e;L0|#060a6f187-f0e0-4c65-a06c-b97febf6542e|Oil & Gas;GP0|#79f5b025-e6dd-4c66-873b-67e8780cf972;L0|#079f5b025-e6dd-4c66-873b-67e8780cf972|RegulatoryMining;Oil & Gas;Regulatory
Wrong turn has court certify environmental class actionWrong turn has court certify environmental class action327BLG Blog PostTim Pritchard;Rick Williamstpritchard@blg.com | Tim Pritchard | 693A30232E777C626C6763616E6164615C74707269746368617264 i:0#.w|blgcanada\tpritchard;rwilliams@blg.com | Rick Williams | 693A30232E777C626C6763616E6164615C726C77 i:0#.w|blgcanada\rlw​​​​​The claim at the heart of Kirk v. Executive Flight Centre Fuel Services, 2017 BCSC 726 is the first of its kind to be certified as a class proceeding in western Canada. The application for certification arose from a “single-incident mass tort.” Unlike a cause of action arising from gradual activity or pollution accumulating over time, the cause of action in this case arose from one discrete incident – the instantaneous release of 35,000 litres of jet fuel into a waterway [...​]<p style="text-align:justify;">​​​​​<img src="https://assets.blgcanada.com/PublishingImages/Calgary/INDUS_GRE-131-Thumbnail.jpg" alt="INDUS_GRE-131-Thumbnail.jpg" class="ms-rtePosition-1" style="margin:5px;" />The claim at the heart of <em>Kirk v. Executive Flight Centre Fuel Services</em>, 2017 BCSC 726 is the first of its kind to be certified as a class proceeding in western Canada. The application for certification arose from a “single-incident mass tort.” Unlike a cause of action arising from gradual activity or pollution accumulating over time, the cause of action in this case arose from one discrete incident – the instantaneous release of 35,000 litres of jet fuel into a waterway [<a href="/energy/Pages/Post.aspx?PID=327">...​</a>]</p>The claim at the heart of Kirk v. Executive Flight Centre Fuel Services, 2017 BCSC 726 is the first of its kind to be certified as a class proceeding in western Canada. The application for certification arose from a “single-incident mass tort.” Unlike a cause of action arising from gradual activity or pollution accumulating over time, the cause of action in this case arose from one discrete incident – the instantaneous release of 35,000 litres of jet fuel into a waterway. The incidentOn July 26, 2013, a fuel tanker truck owned by one of the defendants turned off a highway so that it could supply fuel to helicopters engaged in suppressing a forest fire. It took a wrong turn and, in attempting to turn back, slipped down an embankment and overturned. The tanker spilled approximately 35,000 litres of jet fuel into a waterway. As a result, the Interior Health Authority (the Authority) issued an evacuation order affecting 2,776 properties in the surrounding area. The Authority also issued a “do not use water” order for the surrounding area.The representative plaintiff sought certification of a class action brought on behalf of “[a]ll persons who owned, leased, rented, or occupied real property on July 26, 2013, within the Evacuation Zone.” The defendants included the owner of the fuel tanker and the Province of British Columbia. The claim alleges negligence, nuisance, and Rylands v. Fletcher (i.e. damages arising from the escape of hazardous substances) against each of the defendants. The decisionAfter considering each of the mandatory factors in Section 1 of the British Columbia Class Proceedings Act, the Court certified the class action. In particular, the Court made the following findings The pleadings disclosed causes of action against each of the defendants. It was not “plain and obvious” that the claims would fail. There was an identifiable class. Although the definition of the “Evacuation Zone” was imprecise, it could be further refined leading up to trial. The pleadings raised common issues, including liability for all alleged causes of action, apportionment of liability amongst the co-defendants, and punitive damages. The plaintiff did not seek to certify general damages as a common issue. A class action was the preferable means of resolving the common issues. The Court on this point made the following conclusions Requiring plaintiffs to proceed through individual actions would be unfair and inefficient given the circumstances. Factors considered by the Court were the complexity of the common legal and factual issues, the magnitude of resources available to the defendants relative to the typical individual class member, and the avoidance of parallel proceedings. A class action in this case would advance the goal of behaviour modification “by using the tort system to encourage environmental responsibility.” A class action was the preferable means of proceeding given that “[q]ualitatively the common issues are critical and predominate” relative to the individual issues. Mr. Kirk was a suitable representative plaintiff. He was a retired resident of Winlaw, B.C. who owned and lived on a 51-acre rural property bordering one kilometre of the east side of the affected Slocan River. Future environmental emergenciesThis decision may have implications for future defendants facing claims in respect of spills or other environmental emergencies, in that it is possible for single-incident claims to be certified as class proceedings. This precedent could provide plaintiffs with leverage against potential defendants, since class actions can offer certain advantages to plaintiffs in British Columbia. For example, class actions are “costs free” in British Columbia. Class actions may also be limited to liability issues, leaving damages to be assessed in future proceedings. This can offer procedural advantages to plaintiffs in cases like Kirk, where it might be easier to establish liability than actual damages. The defendant Executive Flight Centre Fuel Services Ltd. has since filed a Notice of Appeal challenging the Court’s certification order in Kirk. Despite the low threshold for certification, defendants have, in the past, successfully appealed certification decisions. For example, in Canada (Attorney General) v. MacQueen, 2013 NSCA 143, the Nova Scotia Court of Appeal overturned a certification order granted to property owners bringing environmental tort claims against a nearby steel producer. The outcome of any subsequent proceedings in Kirk will be of interest to defendants looking to navigate the shifting legal landscape of environmental tort law in British Columbia.<p style="text-align:justify;"></p><p style="text-align:justify;"><img src="https://assets.blgcanada.com/PublishingImages/Calgary/INDUS_GRE-131-shutterstock_big.jpg" alt="INDUS_GRE-131-shutterstock_big.jpg" class="ms-rtePosition-1" style="margin:5px;width:300px;height:300px;" />The claim at the heart of <em>Kirk v. Executive Flight Centre Fuel Services</em>, 2017 BCSC 726 is the first of its kind to be certified as a class proceeding in western Canada. The application for certification arose from a “single-incident mass tort.” Unlike a cause of action arising from gradual activity or pollution accumulating over time, the cause of action in this case arose from one discrete incident – the instantaneous release of 35,000 litres of jet fuel into a waterway. </p><h4>The incident</h4><p style="text-align:justify;">On July 26, 2013, a fuel tanker truck owned by one of the defendants turned off a highway so that it could supply fuel to helicopters engaged in suppressing a forest fire. It took a wrong turn and, in attempting to turn back, slipped down an embankment and overturned. The tanker spilled approximately 35,000 litres of jet fuel into a waterway. As a result, the Interior Health Authority (the Authority) issued an evacuation order affecting 2,776 properties in the surrounding area. The Authority also issued a “do not use water” order for the surrounding area.</p><p style="text-align:justify;">The representative plaintiff sought certification of a class action brought on behalf of “[a]ll persons who owned, leased, rented, or occupied real property on July 26, 2013, within the Evacuation Zone.” The defendants included the owner of the fuel tanker and the Province of British Columbia. The claim alleges negligence, nuisance, and Rylands v. Fletcher (i.e. damages arising from the escape of hazardous substances) against each of the defendants. </p><h4>The decision</h4><p style="text-align:justify;">After considering each of the mandatory factors in Section 1 of the British Columbia <em>Class Proceedings Act</em>, the Court certified the class action. In particular, the Court made the following findings: </p><ul style="text-align:justify;"><li>The pleadings disclosed causes of action against each of the defendants. It was not “plain and obvious” that the claims would fail.  <br></li><li>There was an identifiable class. Although the definition of the “Evacuation Zone” was imprecise, it could be further refined leading up to trial. <br></li><li>The pleadings raised common issues, including liability for all alleged causes of action, apportionment of liability amongst the co-defendants, and punitive damages. The plaintiff did not seek to certify general damages as a common issue. <br></li><li>A class action was the preferable means of resolving the common issues. The Court on this point made the following conclusions: <br></li><ul><li>Requiring plaintiffs to proceed through individual actions would be unfair and inefficient given the circumstances. Factors considered by the Court were the complexity of the common legal and factual issues, the magnitude of resources available to the defendants relative to the typical individual class member, and the avoidance of parallel proceedings.</li><li>A class action in this case would advance the goal of behaviour modification “by using the tort system to encourage environmental responsibility.” </li><li>A class action was the preferable means of proceeding given that “[q]ualitatively the common issues are critical and predominate” relative to the individual issues. </li></ul><li>Mr. Kirk was a suitable representative plaintiff. He was a retired resident of Winlaw, B.C. who owned and lived on a 51-acre rural property bordering one kilometre of the east side of the affected Slocan River. <br></li></ul><h4>Future environmental emergencies</h4><p style="text-align:justify;">This decision may have implications for future defendants facing claims in respect of spills or other environmental emergencies, in that it is possible for single-incident claims to be certified as class proceedings. This precedent could provide plaintiffs with leverage against potential defendants, since class actions can offer certain advantages to plaintiffs in British Columbia. For example, class actions are “costs free” in British Columbia. Class actions may also be limited to liability issues, leaving damages to be assessed in future proceedings. This can offer procedural advantages to plaintiffs in cases like <em>Kirk</em>, where it might be easier to establish liability than actual damages. </p><p style="text-align:justify;">The defendant Executive Flight Centre Fuel Services Ltd. has since filed a Notice of Appeal challenging the Court’s certification order in <em>Kirk</em>. Despite the low threshold for certification, defendants have, in the past, successfully appealed certification decisions. For example, in <em>Canada (Attorney General) v. MacQueen</em>, 2013 NSCA 143, the Nova Scotia Court of Appeal overturned a certification order granted to property owners bringing environmental tort claims against a nearby steel producer. The outcome of any subsequent proceedings in Kirk will be of interest to defendants looking to navigate the shifting legal landscape of environmental tort law in British Columbia.</p>7/18/2017 4:00:00 AM2017-07-18T04:00:00ZTrue1float;#7.00000000000000float;#2017.00000000000string;#Julyfloat;#201707.000000000GP0|#4e9fc7d5-bb0d-4cd4-878d-b18db04a4118;L0|#04e9fc7d5-bb0d-4cd4-878d-b18db04a4118|British Columbia;GTSet|#939fe804-8a2a-4cfa-af8f-5756b32ac3ca;GP0|#80272199-c96f-4e96-a610-ee5c8caae603;L0|#080272199-c96f-4e96-a610-ee5c8caae603|EnvironmentBritish Columbia;Environment
Is There a Place for Geothermal Energy in Alberta’s Electricity Future?Is There a Place for Geothermal Energy in Alberta’s Electricity Future?326BLG Blog Post​​​The Alberta Electric System Operator’s (AESO’s) Renewable Electricity Program (REP) and Alberta Infrastructure’s 135,000 MWh solar procurement highlight Alberta’s new willingness to encourage and financially support renewable electricity development in the province. Though wind and solar have been the focus of Alberta’s renewable electricity story to date, geothermal proponents have also been promoting the potential of their energy source. Is there a place, given this Province’s geology, talent and infrastructure, for geothermal energy in Alberta’s electricity future? [...​]<p style="text-align:justify;">​​​The Alberta Electric System Operator’s (AESO’s) Renewable Electricity Program (REP) and Alberta Infrastructure’s 135,000 MWh solar procurement highlight Alberta’s new willingness to encourage and financially support renewable electricity development in the province. Though wind and solar have been the focus of Alberta’s renewable electricity story to date, geothermal proponents have also been promoting the potential of their energy source. Is there a place, given this Province’s geology, talent and infrastructure, for geothermal energy in Alberta’s electricity future? [<a href="/energy/Pages/Post.aspx?PID=315" target="_blank">...​</a>]</p> ​The Alberta Electric System Operator’s (AESO’s) Renewable Electricity Program (REP) and Alberta Infrastructure’s 135,000 MWh solar procurement highlight Alberta’s new willingness to encourage and financially support renewable electricity development in the province. Though wind and solar have been the focus of Alberta’s renewable electricity story to date, geothermal proponents have also been promoting the potential of their energy source. Is there a place, given this Province’s geology, talent and infrastructure, for geothermal energy in Alberta’s electricity future?​​ >> Read the full post on Alberta Power Market​ About the author | Myles Fish is a law student at Dalhousie University who is summering at Borden Ladner Gervais LLP, and contributes to AlbertaPowerMarket.com.<p>​The Alberta Electric System Operator’s (AESO’s) Renewable Electricity Program (REP) and Alberta Infrastructure’s 135,000 MWh solar procurement highlight Alberta’s new willingness to encourage and financially support renewable electricity development in the province. Though wind and solar have been the focus of Alberta’s renewable electricity story to date, geothermal proponents have also been promoting the potential of their energy source. Is there a place, given this Province’s geology, talent and infrastructure, for geothermal energy in Alberta’s electricity future?​​</p><p><strong>>> </strong><a href="https://albertapowermarket.com/2017/07/04/is-there-a-place-for-geothermal-energy-in-albertas-electricity-future/" target="_blank"><strong>Read the full post on Alberta Power Market​</strong></a></p><p><strong>About the author |</strong> Myles Fish is a law student at Dalhousie University who is summering at Borden Ladner Gervais LLP, and contributes to AlbertaPowerMarket.com.</p>7/11/2017 4:00:00 AM2017-07-11T04:00:00ZTrue1float;#7.00000000000000float;#2017.00000000000string;#Julyfloat;#201707.000000000GP0|#03fc5c71-a1cf-4529-a790-3febb462b5dc;L0|#003fc5c71-a1cf-4529-a790-3febb462b5dc|Electricity;GTSet|#939fe804-8a2a-4cfa-af8f-5756b32ac3caElectricity
Not so Secured After All? Municipal Property Taxes in InsolvencyNot so Secured After All? Municipal Property Taxes in Insolvency325BLG Blog PostJessica Cameron;Emma Morganjcameron@blg.com | Jessica Cameron | 693A30232E777C626C6763616E6164615C6A63616D65726F6E i:0#.w|blgcanada\jcameron;emorgan@blg.com | Emma Morgan | 693A30232E777C626C6763616E6164615C656D6F7267616E i:0#.w|blgcanada\emorgan​​In the recent unreported decision, Bank of Nova Scotia et al v. Virginia Hills Oil Corp. et al, File No. 1701-02184, the Alberta Court of Queen’s Bench held that not all municipal property tax claims are priority secured claims in an insolvency. As a result of this decision, the ability of a municipal government to recover unpaid municipal property taxes from an insolvent taxpayer may be compromised.Prior to this decision, all property taxes due to municipalities enjoyed priority over the claims of every person except the Crown, as those taxes are a special lien. In response to an application by the court-appointed receiver to confirm priority and status of municipal claims, the Court held that the municipal taxes taking priority pursuant to Section 348 of the Municipal Government Act, (Alberta) do not include linear property taxes. [​…​]<p style="text-align:justify;">​​In the recent unreported decision, <a href="https://www.alvarezandmarsal.com/sites/default/files/canada/order_advice_and_directions_distribution_of_funds_filed_june_20_2017_1.pdf" target="_blank"><em>Bank of Nova Scotia et al v. Virginia Hills Oil Corp. et al</em>, File No. 1701-02184</a>, the Alberta Court of Queen’s Bench held that not all municipal property tax claims are priority secured claims in an insolvency. As a result of this decision, the ability of a municipal government to recover unpaid municipal property taxes from an insolvent taxpayer may be compromised.</p><p style="text-align:justify;">Prior to this decision, all property taxes due to municipalities enjoyed priority over the claims of every person except the Crown, as those taxes are a special lien. In response to an application by the court-appointed receiver to confirm priority and status of municipal claims, the Court held that the municipal taxes taking priority pursuant to Section 348 of the <em>Municipal Government Act</em>, (Alberta) do not include <em>linear property taxes</em>. [​<a href="/energy/Pages/Post.aspx?PID=325" target="_blank">…​</a>]</p>​In the recent unreported decision, Bank of Nova Scotia et al v. Virginia Hills Oil Corp. et al, File No. 1701-02184, the Alberta Court of Queen’s Bench held that not all municipal property tax claims are priority secured claims in an insolvency. As a result of this decision, the ability of a municipal government to recover unpaid municipal property taxes from an insolvent taxpayer may be compromised.Prior to this decision, all property taxes due to municipalities enjoyed priority over the claims of every person except the Crown, as those taxes are a special lien. In response to an application by the court-appointed receiver to confirm priority and status of municipal claims, the Court held that the municipal taxes taking priority pursuant to Section ​348 of the Municipal Government Act, (Alberta) do not include linear property taxes. […]BackgroundVirginia Hills Oil Corp. (VHO) and its wholly-owned subsidiary Dolomite Energy Inc. (Dolomite) were small public oil companies whose core assets were located in north central Alberta. A receiver-manager (the Receiver) was appointed over of VHO and Dolomite on February 13, 2017, and the Receiver sold all of VHO and Dolomite’s assets pursuant to a Court order granted on March 21, 2017. On May 3, 2017, the Receiver obtained a Bankruptcy Order under the Bankruptcy and Insolvency Act (Canada) (the BIA) declaring VHO and Dolomite bankrupt.Subsequently, in June 2017, the Receiver applied to the Court for advice and determination of the nature and priority of the outstanding linear tax component of the municipal taxes owed by VHO and Dolomite. The Receiver’s position was that, while non-linear property taxes have priority in an insolvency, linear property taxes are an unsecured claim which therefore do not enjoy priority. Additionally, the Receiver sought the Court’s advice and determination regarding whether the outstanding surface lease rental payments owed to the surface leaseholders were unsecured claims. This portion of the Receiver’s Application did not proceed and has been adjourned to a later date. Receiver’s PositionThe Receiver differentiated between two types of municipal taxes linear and non-linear. Pursuant to Section 248(k) of the Municipal Government Act (Alberta) (the MGA), linear property includes oil and gas wells, pipelines to transport petroleum products, and electric power systems among other things. Municipal taxes for linear property are levied in the MGA on a specific “assessed person” and are based on an “assessed value” of the property being taxed. In contrast, non-linear property is not defined in the MGA, but would include all other property that is not included in the definition of linear property.Under Section 348(c) of the MGA, taxes due to a municipality take priority over the claims of e​very person except the Crown. On its face, this appears to include all property taxes (and has in previous insolvency matters). However, the Receiver emphasized subsection 348(d)(i), wherein taxes due to a municipality are a special lien on land if the tax is a property tax or a special tax, amongst others. Property is defined in Section 284(r) of the MGA as a parcel of land or an improvement. Hence, the receiver-manager argued that the special lien extends to tax arrears for parcels of land but not to linear taxes in arrears, as those taxes do not relate to land. The Receiver emphasized that there is a distinction between taxes related to land (i.e. non-linear property) and those not related to land (i.e. linear property). This is notwithstanding that the definition of “property” includes an improvement. The Receiver further argued that, in the event that a special lien exists, Section 87 of the BIA requires that any security provided for in provincial legislation (in this case, any special lien under the MGA) for securing a claim of the federal or provincial Crown is only valid if the security is registered before bankruptcy. In this case, it was not. Therefore, the affected municipalities could not claim a special lien under Section 348 of the MGA, according to the Receiver.The OrderWhile it is not clear from the decision which of the Receiver’s arguments ultimately prevailed, Justice Yamauchi ordered and declared that the pre-receivership linear tax claims of the Municipalities were indeed unsecured claims and not entitled to special lien status. Justice Yamauchi also held that these linear tax claims were not “Permitted Encumbrances” under the Sale Approval and Vesting Order, and that the Municipalities have no further claims against the Purchaser, the transaction properties, or the funds held by the Receiver from the sale of the property. ImplicationsThis Order departs from the conventional understanding that in an insolvency, municipal property taxes in arrears have priority. Linear taxes in arrears will now be considered unsecured claims, for which the municipalities will no longer enjoy priority, and the end result is likely to be lower prospects of recovery of tax arrears in an insolvency. One might accordingly expect municipalities to become much more insistent that property taxes are kept current.This matter may yet result in further developments in the law once the issue of payment of the outstanding pre-receivership surface lease payments is brought back before the Court for determination.​<p style="text-align:justify;">​In the recent unreported decision, <a href="https://www.alvarezandmarsal.com/sites/default/files/canada/order_advice_and_directions_distribution_of_funds_filed_june_20_2017_1.pdf" target="_blank"><em>Bank of Nova Scotia et al v. Virginia Hills Oil Corp. et al</em>, File No. 1701-02184</a>, the Alberta Court of Queen’s Bench held that not all municipal property tax claims are priority secured claims in an insolvency. As a result of this decision, the ability of a municipal government to recover unpaid municipal property taxes from an insolvent taxpayer may be compromised.</p><p style="text-align:justify;">Prior to this decision, all property taxes due to municipalities enjoyed priority over the claims of every person except the Crown, as those taxes are a special lien. In response to an application by the court-appointed receiver to confirm priority and status of municipal claims, the Court held that the municipal taxes taking priority pursuant to Section ​348 of the <em>Municipal Government Act</em>, (Alberta) do not include <em>linear property taxes</em>. […]</p><h4>Background</h4><p style="text-align:justify;">Virginia Hills Oil Corp. (VHO) and its wholly-owned subsidiary Dolomite Energy Inc. (Dolomite) were small public oil companies whose core assets were located in north central Alberta. A receiver-manager (the Receiver) was appointed over of VHO and Dolomite on February 13, 2017, and the Receiver sold all of VHO and Dolomite’s assets pursuant to a Court order granted on March 21, 2017. On May 3, 2017, the Receiver obtained a Bankruptcy Order under the <em>Bankruptcy and Insolvency Act</em> (Canada) (the BIA) declaring VHO and Dolomite bankrupt.</p><p style="text-align:justify;">Subsequently, in June 2017, the Receiver applied to the Court for advice and determination of the nature and priority of the outstanding linear tax component of the municipal taxes owed by VHO and Dolomite. The Receiver’s position was that, while non-linear property taxes have priority in an insolvency, linear property taxes are an unsecured claim which therefore do not enjoy priority.  </p><p style="text-align:justify;">Additionally, the Receiver sought the Court’s advice and determination regarding whether the outstanding surface lease rental payments owed to the surface leaseholders were unsecured claims. This portion of the Receiver’s Application did not proceed and has been adjourned to a later date. </p><h4>Receiver’s Position</h4><p style="text-align:justify;">The Receiver differentiated between two types of municipal taxes: linear and non-linear. </p><p style="text-align:justify;">Pursuant to Section 248(k) of the <em>Municipal Government Act</em> (Alberta) (the MGA), linear property includes oil and gas wells, pipelines to transport petroleum products, and electric power systems among other things. Municipal taxes for linear property are levied in the MGA on a specific “assessed person” and are based on an “assessed value” of the property being taxed. In contrast, non-linear property is not defined in the MGA, but would include all other property that is not included in the definition of linear property.</p><p style="text-align:justify;">Under Section 348(c) of the MGA, taxes due to a municipality take priority over the claims of e​very person except the Crown. On its face, this appears to include all property taxes (and has in previous insolvency matters). However, the Receiver emphasized subsection 348(d)(i), wherein taxes due to a municipality are a special lien on land if the tax is a property tax or a special tax, amongst others. </p><p style="text-align:justify;">Property is defined in Section 284(r) of the MGA as a parcel of land or an improvement. Hence, the receiver-manager argued that the special lien extends to tax arrears for parcels of land but not to linear taxes in arrears, as those taxes do not relate to land. The Receiver emphasized that there is a distinction between taxes related to land (i.e. non-linear property) and those not related to land (i.e. linear property). This is notwithstanding that the definition of “property” includes an improvement. </p><p style="text-align:justify;">The Receiver further argued that, in the event that a special lien exists, Section 87 of the BIA requires that any security provided for in provincial legislation (in this case, any special lien under the MGA) for securing a claim of the federal or provincial Crown is only valid if the security is registered before bankruptcy. In this case, it was not. Therefore, the affected municipalities could not claim a special lien under Section 348 of the MGA, according to the Receiver.</p><h4>The Order</h4><p style="text-align:justify;">While it is not clear from the decision which of the Receiver’s arguments ultimately prevailed, Justice Yamauchi ordered and declared that the pre-receivership linear tax claims of the Municipalities were indeed unsecured claims and not entitled to special lien status. Justice Yamauchi also held that these linear tax claims were not “Permitted Encumbrances” under the Sale Approval and Vesting Order, and that the Municipalities have no further claims against the Purchaser, the transaction properties, or the funds held by the Receiver from the sale of the property. </p><h4>Implications</h4><p style="text-align:justify;">This Order departs from the conventional understanding that in an insolvency, municipal property taxes in arrears have priority. Linear taxes in arrears will now be considered unsecured claims, for which the municipalities will no longer enjoy priority, and the end result is likely to be lower prospects of recovery of tax arrears in an insolvency. One might accordingly expect municipalities to become much more insistent that property taxes are kept current.</p><p style="text-align:justify;">This matter may yet result in further developments in the law once the issue of payment of the outstanding pre-receivership surface lease payments is brought back before the Court for determination.​</p>7/4/2017 4:00:00 AM2017-07-04T04:00:00ZTrue1float;#7.00000000000000float;#2017.00000000000string;#Julyfloat;#201707.000000000GP0|#ce7f0211-1ba9-4936-92ec-7c7af811db0f;L0|#0ce7f0211-1ba9-4936-92ec-7c7af811db0f|Insolvency;GTSet|#939fe804-8a2a-4cfa-af8f-5756b32ac3ca;GP0|#7ea7e480-c8e7-48db-baae-396516e81926;L0|#07ea7e480-c8e7-48db-baae-396516e81926|Pipelines;GP0|#b6308153-04d9-49b6-a882-3f4a7af228f0;L0|#0b6308153-04d9-49b6-a882-3f4a7af228f0|TaxInsolvency;Pipelines;Tax
Federal government passes a number of environmental regulations and orders as part of the third and final stage of implementing the Environmental Enforcement ActFederal government passes a number of environmental regulations and orders as part of the third and final stage of implementing the Environmental Enforcement Act324BLG Blog Post​Readers of the BLG Environmental News will recall when the Federal government introduced the Environmental Enforcement Act in 2009. As reported in the BLG Environmental News in 2009, the Environmental Enforcement Act introduced stringent new fines and sentencing provisions to various federal environmental legislation, and introduced Administrative Monetary Penalties. The implementation of the Environmental Enforcement Act has taken place in stages, and most of the sentencing provisions were brought into force in 2012. This month, the federal government passed a number of environmental regulations and orders as part of the third and final stage of implementing the Environmental Enforcement Act. In particular, new fine levels and Administrative Monetary Penalties are now in force [...] <p style="text-align:justify;">​Readers of the BLG Environmental News will recall when the Federal government introduced the <em>Environmental Enforcement Act </em>in 2009. As reported in the BLG Environmental News in 2009, the <em>Environmental Enforcement Act </em>introduced stringent new fines and sentencing provisions to various federal environmental legislation, and introduced Administrative Monetary Penalties. The implementation of the <em>Environmental Enforcement Act </em>has taken place in stages, and most of the sentencing provisions were brought into force in 2012. This month, the federal government passed a number of environmental regulations and orders as part of the third and final stage of implementing the <em>Environmental Enforcement Act</em>. In particular, new fine levels and Administrative Monetary Penalties are now in force [<a href="/energy/Pages/Post.aspx?PID=324" target="_blank">...</a>] </p>​​Readers of the BLG Environmental News will recall when the Federal government introduced the Environmental Enforcement Act in 2009. As reported in the BLG Environmental News in 2009, the Environmental Enforcement Act introduced stringent new fines and sentencing provisions to various federal environmental legislation, and introduced Administrative Monetary Penalties. The implementation of the Environmental Enforcement Act has taken place in stages, and most of the sentencing provisions were brought into force in 2012. This month, the federal government passed a number of environmental regulations and orders as part of the third and final stage of implementing the Environmental Enforcement Act. In particular, new fine levels and Administrative Monetary Penalties are now in force. >> Read the full Environmental BulletinAuthored by Luke Dineley and Auke Visser <p style="text-align:justify;">​​Readers of the BLG Environmental News will recall when the Federal government introduced the <em>Environmental Enforcement Act </em>in 2009. As reported in the BLG Environmental News in 2009, the <em>Environmental Enforcement Act </em>introduced stringent new fines and sentencing provisions to various federal environmental legislation, and introduced Administrative Monetary Penalties. The implementation of the <em>Environmental Enforcement Act </em>has taken place in stages, and most of the sentencing provisions were brought into force in 2012. This month, the federal government passed a number of environmental regulations and orders as part of the third and final stage of implementing the <em>Environmental Enforcement Act</em>. In particular, new fine levels and Administrative Monetary Penalties are now in force.</p><p style="text-align:justify;"><strong> >> </strong><a href="http://blg.com/en/News-And-Publications/Publication_4986" target="_blank"><strong>Read the full Environmental Bulletin</strong></a></p><p style="text-align:justify;">Authored by <a href="http://blg.com/en/Our-People/Dineley-Luke" target="_blank">Luke Dineley</a> and <a href="http://blg.com/en/Our-People/Visser-Auke" target="_blank">Auke Visser</a> </p>6/28/2017 4:00:00 AM2017-06-28T04:00:00ZTrue1float;#6.00000000000000float;#2017.00000000000string;#Junefloat;#201706.000000000GP0|#8c26ad5a-20b9-4634-924a-6dd03588ea9a;L0|#08c26ad5a-20b9-4634-924a-6dd03588ea9a|BLG News;GTSet|#939fe804-8a2a-4cfa-af8f-5756b32ac3ca;GP0|#80272199-c96f-4e96-a610-ee5c8caae603;L0|#080272199-c96f-4e96-a610-ee5c8caae603|EnvironmentBLG News;Environment
Battle over gravel results in clarification in test for pre-judgement reliefBattle over gravel results in clarification in test for pre-judgement relief323BLG Blog PostLaura Poppel;Michael A. Marionlpoppel@blg.com | Laura Poppel | 693A30232E777C626C6763616E6164615C6C706F7070656C i:0#.w|blgcanada\lpoppel;mmarion@blg.com | Michael A. Marion | 693A30232E777C626C6763616E6164615C6D616D i:0#.w|blgcanada\mam​The Alberta Court of Queen’s Bench released its decision in Athabasca Minerals Inc. v Syncrude Canada Ltd., 2017 ABQB 47 in January, denying an application brought by Syncrude Canada Ltd. (Syncrude) for various forms of pre-judgment relief that would have the effect of partially suspending operations of the Susan Lake gravel pit. The Susan Lake gravel pit is one of the largest in Canada, and supplies the majority of gravel to energy companies operating and developing oil sands resources in the Athabasca Oil Sands region[...]<p style="text-align:justify;">​The Alberta Court of Queen’s Bench released its decision in <em>Athabasca Minerals Inc. v Syncrude Canada Ltd</em>., 2017 ABQB 47 in January, denying an application brought by Syncrude Canada Ltd. (Syncrude) for various forms of pre-judgment relief that would have the effect of partially suspending operations of the Susan Lake gravel pit. The Susan Lake gravel pit is one of the largest in Canada, and supplies the majority of gravel to energy companies operating and developing oil sands resources in the Athabasca Oil Sands region[<a href="/energy/Pages/Post.aspx?PID=323">...</a>]</p>​The Alberta Court of Queen’s Bench released its decision in Athabasca Minerals Inc. v Syncrude Canada Ltd., 2017 ABQB 47 in January, denying an application brought by Syncrude Canada Ltd. (Syncrude) for various forms of pre-judgment relief that would have the effect of partially suspending operations of the Susan Lake gravel pit. The Susan Lake gravel pit is one of the largest in Canada, and supplies the majority of gravel to energy companies operating and developing oil sands resources in the Athabasca Oil Sands region.BackgroundAthabasca Minerals Inc. (AMI) manages the removal of materials from the Susan Lake pit pursuant to a management contract with the Province. As part of its responsibilities, AMI ensures that a royalty is paid to the Province for materials removed from the pit and is responsible for the reclamation and re-forestation of the pit in accordance with applicable legislation and standards. For these services, AMI receives a management fee for the materials removed from the pit for the duration of the contract.Syncrude produces oil sands bitumen from lands encompassed by a Mineral Surface Lease (the Mineral Lease) with the Province of Alberta. Pursuant to the Mineral Lease, Syncrude has certain reclamation obligations, both ongoing and at the end of operations. A portion of the Mineral Lease overlaps with the area under management by AMI (the Overlapping Area). In 2012, AMI commenced an action against Syncrude, alleging that Syncrude removed surface materials from the pit and failed to pay for those materials and the full amount of management fees payable to AMI. In response, Syncrude filed a counterclaim alleging that AMI wrongfully permitted excavation, removal and use of reclamation material from the Overlapping Area. In essence, Syncrude asserted that the Mineral Lease gives it exclusive use and possession of sand and gravel in the Overlapping Area for reclamation purposes and that AMI’s operation of the pit has interfered with that right. ApplicationSyncrude filed an application with the Court seeking various pre-judgment relief against AMI pending trial and judgment, including a preservation order, preserving any material currently in situ in the Overlapping Area, prohibiting AMI from dealing with stockpiled cover soil, sand and gravel within the Overlapping Area and a direction that management fees otherwise payable to AMI under the management contract be paid into Court; an attachment order, attaching all of AMI’s legal or beneficial interests in all real and property pursuant to the Civil Enforcement Act, RSA 2000, c-15 (CEA); and alternatively, a mareva injunction, enjoining AMI from dealing with, conveying, selling, encumbering or otherwise disposing of any interests in personal or real property or assets in its possession or control.DecisionPreservation Order The Court agreed with Syncrude’s argument that the test for a preservation order is the well-known tripartite test established in RJR-MacDonald Inc. v Canada (Attorney General), [1994] 1 SCR 311 as follows there is a serious issue to be tried; the applicant will suffer irreparable harm in the absence of relief; and the balance of convenience favours granting relief.In particular, the Court held that an applicant for a preservation order is not required to also meet the provisions of Section 17 of the CEA respecting attachment orders, as was argued by AMI. The Court held that there was a serious issue to be tried respecting the rights conferred to Syncrude and AMI under the various agreements with, and approvals issued by, the Province of Alberta. However, the Court found that Syncrude failed to meet the other two elements of the test. The Court’s decision that Syncrude would not suffer irreparable harm was influenced by the fact that Syncrude had revised the relief it sought to permit a select group of companies to continue to purchase and remove sand and gravel in the Overlapping Area. The Court found that this diluted Syncrude’s argument that it required a preservation order to secure the stockpiled or in situ sand and gravel in the Overlapping Area. The Court also held that the balance of convenience tipped in favour of AMI, as a preservation order would adversely impact AMI’s ability to perform its duties under its contracts with the Province and may frustrate the Province’s intention that sand and gravel be made available for public use. Attachment Order The Court accepted Syncrude’s position that the test for an attachment order is contained entirely in section 17(2) of the CEA, and there is no additional requirement that an applicant meet the tripartite test established in RJR-MacDonald. Accordingly, the test for an attachment order set out in the CEA requires the applicant to show (a) there is a reasonable likelihood that the claimant’s claim against the defendant will be established, and (b) there are reasonable grounds for believing that the defendant is dealing with the defendant’s exigible property, or is likely to deal with that property,(i) otherwise than for the purpose of meeting the defendant’s reasonable and ordinary business or living expenses, and(ii) in a manner that would be likely to seriously hinder the claimant in the enforcement of a judgment against the defendant.The Court declined to grant the attachment order, finding that there was no evidence to support Syncrude’s assertion that the Mineral Lease provided it exclusive right to use and possess sand and gravel. Regarding the second criterion, the Court held that even if Syncrude was moderately successful in its Counterclaim, it would put AMI out of business and accordingly, an attachment order would not significantly enhance Syncrude’s chance of recovery.Mareva InjunctionThe Court found that an applicant for a mareva injunction must establish (a) a strong prima facie case for potential success at trial, and (b) a real risk that the respondent will remove assets from the jurisdiction, or dissipate them, in order to avoid a judgment. Further, the applicant must meet procedural requirements (a) full and frank disclosure, (b) particulars of the claim, (c) assets within the jurisdiction, and (d) an undertaking as to damages. Finally, the applicant must satisfy two branches from the tripartite test irreparable harm and balance of convenience.For the same reasons as above, the Court was not convinced that there was a real risk that AMI would dissipate assets. Accordingly, the Court rejected Syncrude’s application for a mareva injunction. This case confirms the usual tests for preservation orders, attachment orders and mareva injunctions in Alberta. The important lesson of the case for industry is, when seeking pre-judgment relief, the applicant must focus on garnering enough evidence to support the draconian remedy they seek – courts will not grant pre-judgment relief lightly.<p style="text-align:justify;">​The Alberta Court of Queen’s Bench released its decision in <em>Athabasca Minerals Inc. v Syncrude Canada Ltd</em>., 2017 ABQB 47 in January, denying an application brought by Syncrude Canada Ltd. (Syncrude) for various forms of pre-judgment relief that would have the effect of partially suspending operations of the Susan Lake gravel pit. The Susan Lake gravel pit is one of the largest in Canada, and supplies the majority of gravel to energy companies operating and developing oil sands resources in the Athabasca Oil Sands region.</p><h3>Background</h3><p style="text-align:justify;">Athabasca Minerals Inc. (AMI) manages the removal of materials from the Susan Lake pit pursuant to a management contract with the Province. As part of its responsibilities, AMI ensures that a royalty is paid to the Province for materials removed from the pit and is responsible for the reclamation and re-forestation of the pit in accordance with applicable legislation and standards. For these services, AMI receives a management fee for the materials removed from the pit for the duration of the contract.</p><p style="text-align:justify;">Syncrude produces oil sands bitumen from lands encompassed by a Mineral Surface Lease (the Mineral Lease) with the Province of Alberta. Pursuant to the Mineral Lease, Syncrude has certain reclamation obligations, both ongoing and at the end of operations. A portion of the Mineral Lease overlaps with the area under management by AMI (the Overlapping Area). </p><p style="text-align:justify;">In 2012, AMI commenced an action against Syncrude, alleging that Syncrude removed surface materials from the pit and failed to pay for those materials and the full amount of management fees payable to AMI. In response, Syncrude filed a counterclaim alleging that AMI wrongfully permitted excavation, removal and use of reclamation material from the Overlapping Area. In essence, Syncrude asserted that the Mineral Lease gives it exclusive use and possession of sand and gravel in the Overlapping Area for reclamation purposes and that AMI’s operation of the pit has interfered with that right. </p><h3>Application</h3><p style="text-align:justify;">Syncrude filed an application with the Court seeking various pre-judgment relief against AMI pending trial and judgment, including:</p><ol><li><div style="text-align:justify;">a preservation order, preserving any material currently in situ in the Overlapping Area, prohibiting AMI from dealing with stockpiled cover soil, sand and gravel within the Overlapping Area and a direction that management fees otherwise payable to AMI under the management contract be paid into Court; </div></li><li><div style="text-align:justify;">an attachment order, attaching all of AMI’s legal or beneficial interests in all real and property pursuant to the Civil Enforcement Act, RSA 2000, c-15 (CEA); and </div></li><li><div style="text-align:justify;">alternatively, a mareva injunction, enjoining AMI from dealing with, conveying, selling, encumbering or otherwise disposing of any interests in personal or real property or assets in its possession or control.</div></li></ol><h3>Decision</h3><h4><em>Preservation Order </em></h4><p style="text-align:justify;">The Court agreed with Syncrude’s argument that the test for a preservation order is the well-known tripartite test established in <em>RJR-MacDonald Inc. v Canada (Attorney General)</em>, [1994] 1 SCR 311 as follows:</p><ol><li><div style="text-align:justify;">there is a serious issue to be tried; </div></li><li><div style="text-align:justify;">the applicant will suffer irreparable harm in the absence of relief; and </div></li><li><div style="text-align:justify;">the balance of convenience favours granting relief.</div></li></ol><p style="text-align:justify;">In particular, the Court held that an applicant for a preservation order is not required to also meet the provisions of Section 17 of the <em>CEA </em>respecting attachment orders, as was argued by AMI. </p><p style="text-align:justify;">The Court held that there was a serious issue to be tried respecting the rights conferred to Syncrude and AMI under the various agreements with, and approvals issued by, the Province of Alberta. However, the Court found that Syncrude failed to meet the other two elements of the test. The Court’s decision that Syncrude would not suffer irreparable harm was influenced by the fact that Syncrude had revised the relief it sought to permit a select group of companies to continue to purchase and remove sand and gravel in the Overlapping Area. The Court found that this diluted Syncrude’s argument that it required a preservation order to secure the stockpiled or <em>in situ </em>sand and gravel in the Overlapping Area. The Court also held that the balance of convenience tipped in favour of AMI, as a preservation order would adversely impact AMI’s ability to perform its duties under its contracts with the Province and may frustrate the Province’s intention that sand and gravel be made available for public use. </p><h4><em>Attachment Order </em></h4><p style="text-align:justify;">The Court accepted Syncrude’s position that the test for an attachment order is contained entirely in section 17(2) of the CEA, and there is no additional requirement that an applicant meet the tripartite test established in RJR-MacDonald. Accordingly, the test for an attachment order set out in the CEA requires the applicant to show: </p><blockquote dir="ltr" style="margin-right:0px;"><p style="text-align:justify;">(a) there is a reasonable likelihood that the claimant’s claim against the defendant will be established, and </p><p style="text-align:justify;">(b) there are reasonable grounds for believing that the defendant is dealing with the defendant’s exigible property, or is likely to deal with that property,</p><blockquote dir="ltr" style="margin-right:0px;"><blockquote dir="ltr" style="margin-right:0px;"><p style="text-align:justify;">(i) otherwise than for the purpose of meeting the defendant’s reasonable and ordinary business or living expenses, and</p><p style="text-align:justify;">(ii) in a manner that would be likely to seriously hinder the claimant in the enforcement of a judgment against the defendant.</p></blockquote></blockquote></blockquote><p style="text-align:justify;">The Court declined to grant the attachment order, finding that there was no evidence to support Syncrude’s assertion that the Mineral Lease provided it exclusive right to use and possess sand and gravel. Regarding the second criterion, the Court held that even if Syncrude was moderately successful in its Counterclaim, it would put AMI out of business and accordingly, an attachment order would not significantly enhance Syncrude’s chance of recovery.</p><h4><em>Mareva Injunction</em></h4><p style="text-align:justify;">The Court found that an applicant for a mareva injunction must establish (a) a strong prima facie case for potential success at trial, and (b) a real risk that the respondent will remove assets from the jurisdiction, or dissipate them, in order to avoid a judgment. Further, the applicant must meet procedural requirements: (a) full and frank disclosure, (b) particulars of the claim, (c) assets within the jurisdiction, and (d) an undertaking as to damages. Finally, the applicant must satisfy two branches from the tripartite test: irreparable harm and balance of convenience.</p><p style="text-align:justify;">For the same reasons as above, the Court was not convinced that there was a real risk that AMI would dissipate assets. Accordingly, the Court rejected Syncrude’s application for a mareva injunction. </p><p style="text-align:justify;">This case confirms the usual tests for preservation orders, attachment orders and mareva injunctions in Alberta. The important lesson of the case for industry is, when seeking pre-judgment relief, the applicant must focus on garnering enough evidence to support the draconian remedy they seek – courts will not grant pre-judgment relief lightly.</p>6/19/2017 4:00:00 AM2017-06-19T04:00:00ZTrue1float;#6.00000000000000float;#2017.00000000000string;#Junefloat;#201706.000000000GP0|#a8d93e98-a569-4c7f-ac81-5c92b85685cd;L0|#0a8d93e98-a569-4c7f-ac81-5c92b85685cd|Appeals;GTSet|#939fe804-8a2a-4cfa-af8f-5756b32ac3ca;GP0|#68a53fee-4a86-4326-9cee-6b963cc47e1c;L0|#068a53fee-4a86-4326-9cee-6b963cc47e1c|Natural ResourcesAppeals;Natural Resources
BLG Invite | BLG Labour and Employment Breakfast SeminarBLG Invite | BLG Labour and Employment Breakfast Seminar322BLG Blog PostBorden Ladner Gervais LLP is hosting Take It or Leave It a Labour and Employement breakfast seminar. Join us on June 23 for our discussion on Alberta's new employment standards legislation.[Read more...]<p style="text-align:justify;">Borden Ladner Gervais LLP is hosting <em>Take It or Leave It </em>a Labour and Employement breakfast seminar. Join us on June 23 for our discussion on Alberta's new employment standards legislation.</p><p style="text-align:justify;">[<a href="/energy/Pages/Post.aspx?PID=322" target="_blank"><em>Read more</em></a>...]</p> ​ >> RSVP Now<p>​<img class="ms-rtePosition-4" alt="LE Invite.JPG" src="/energy/PublishingImages/Lists/Blog%20Posts/NewForm/LE%20Invite.JPG" style="margin:5px;" /></p><p><strong>>> </strong><a href="http://bordenladnergervaisllp.com/s/e948b72c516b5414db95278b0d07f604035c8934/h=ff0031095323af66cf8eca11c74b802efd7016ab" target="_blank"><strong>RSVP Now</strong></a></p>6/15/2017 4:00:00 AM2017-06-15T04:00:00ZTrue1float;#6.00000000000000float;#2017.00000000000string;#Junefloat;#201706.000000000GP0|#b01107da-49ba-46f5-940e-aca68ced7b53;L0|#0b01107da-49ba-46f5-940e-aca68ced7b53|BLG Events;GTSet|#939fe804-8a2a-4cfa-af8f-5756b32ac3caBLG Events
Modern Convenience? Modernizing the National Energy BoardModern Convenience? Modernizing the National Energy Board321BLG Blog PostKaren A. Salmon;Alan L. Ross;Dafydd Samuelksalmon@blg.com | Karen A. Salmon | 693A30232E777C626C6763616E6164615C6B73616C6D6F6E i:0#.w|blgcanada\ksalmon;aross@blg.com | Alan L. Ross | 693A30232E777C626C6763616E6164615C61726F7373 i:0#.w|blgcanada\aross;dsamuel@blg.com | Dafydd Samuel | 693A30232E777C626C6763616E6164615C6473616D75656C i:0#.w|blgcanada\dsamuel​On May 15, 2017, the Expert Panel on the Modernization of the National Energy Board (NEB) released its report Forward, Together – Enabling Canada’s Clean, Safe and Secure Energy Future (Report). The Report explores reform in several theme areas including the NEB’s mandate, Indigenous engagement, decision-making and governance, lifecycle regulation, and public participation. The Panel recommendations relate not just to the modernization of the NEB, but to affecting Canada’s overall approach to energy infrastructure and climate change, and propose significant changes to the structure and workings of the NEB as we know it today.[Read more…]<p style="text-align:justify;">​On May 15, 2017, the Expert Panel on the Modernization of the National Energy Board (NEB) released its report <a href="https://www.nrcan.gc.ca/sites/www.nrcan.gc.ca/files/pdf/NEB-Modernization-Report-EN-WebReady.pdf" target="_blank"><em>Forward, Together – Enabling Canada’s Clean, Safe and Secure Energy Future</em></a> (Report). The Report explores reform in several theme areas including the NEB’s mandate, Indigenous engagement, decision-making and governance, lifecycle regulation, and public participation. The Panel recommendations relate not just to the modernization of the NEB, but to affecting Canada’s overall approach to energy infrastructure and climate change, and propose significant changes to the structure and workings of the NEB as we know it today.</p><p style="text-align:justify;">[<a href="/energy/Pages/Post.aspx?PID=321" target="_blank"><em>Read more</em></a>…]</p>​On May 15, 2017, the Expert Panel on the Modernization of the National Energy Board (NEB) released its report Forward, Together – Enabling Canada’s Clean, Safe and Secure Energy Future (Report). The Report explores reform in several theme areas including the NEB’s mandate, Indigenous engagement, decision-making and governance, lifecycle regulation, and public participation. The Panel recommendations relate not just to the modernization of the NEB, but to affecting Canada’s overall approach to energy infrastructure and climate change, and propose significant changes to the structure and workings of the NEB as we know it today. BackgroundAt present, the NEB oversees a portion of Canada’s overall energy system transboundary pipelines and electric transmission lines, and energy imports and exports. The NEB is also responsible for publishing data on energy transmission and infrastructure, which it uses as a basis for many of its regulatory decisions. The Panel was convened in late 2016 following a Prime Ministerial mandate issued to the Minister of Natural Resources. The Panel was given a broad mandate to “modernize the NEB” and “aim to position the NEB as a modern, efficient and effective energy regulator and regain public trust.” The ReportMost significantly, the Report recommends separating and expanding the NEB’s core functions by creating two new legislatively-empowered bodies the Canadian Energy Transmission Commission (CETC), and the Canadian Energy Information Agency (CEIA).1. Reforming the Legislative MandateUnder the proposed scheme, the CETC would retain the NEB’s current mandate and legislative authority to approve or deny transboundary pipelines and transmission line projects. However, the Report recommends significant changes to the project review process. At a preliminary stage, all major projects would be subject to a year-long deliberation by the Governor in Council (GIC), to determine whether a project aligns with the ‘national interest.’ On approval, the project would move to a detailed review and environmental assessment, followed by a licensing decision. The CETC would exercise that authority through a Joint Hearing Panel comprised of two CETC members, two Canadian Environmental Assessment Agency commissioners, and an additional, independent commissioner. The Joint Hearing Panel would include at least one Indigenous member, and be informed by substantive Indigenous consultation and stakeholder engagement.Having the GIC make a preliminary determination on national interest means proposals such as Kinder Morgan's Trans Mountain expansion, or TransCanada's Energy East project would require the approval of Cabinet before entering any sort of detailed project review. While there are benefits to having the GIC decide the fate of a project early in the process, it is worth noting that the three-year review recommendation is a significant increase from the 15 months required under current NEB legislation.To address concerns about the integrity of Canadian energy information and analysis, the Panel recommends establishing the CEIA. Presently, the NEB produces much of the data that underpins its own regulatory decisions. The Report suggests this has undermined public confidence in the NEB as an independent and impartial regulator. The CEIA, as an independent body reporting to the Minister of Natural Resources, would serve as a single clearinghouse for all energy data, sourced from both domestic and international agencies. The CEIA would collect and disseminate energy data, produce annual public reports, and measure quantitative analysis against the ambitioned goals of Canada’s energy strategy.2. Improving Relationships with Indigenous PeoplesThe Report emphasizes the interests of Indigenous peoples and their involvement in high-level policy creation throughout. The Panel notes that current funding programs are often consumed by legal representation and third-party science, and do little to enhance the capacity of Indigenous communities at a systemic level. The Panel therefore recommends the creation of a new Indigenous Major Projects Office which would, under the governance of Indigenous peoples, formally define processes and accountabilities for consultation. The Office would also generate best practices for environmental assessments and regulatory reviews, with a view to improving Indigenous participation in the planning and licensing stages of major projects. The Report also urges that the role of the Crown in formal consultations should not be delegated to project proponents. 3. Reformed Governance and Decision-MakingMany of the Report’s recommendations arise from public concern that the NEB is a biased overseer of major energy projects. Keen to dispel criticisms of a ‘self-regulating’ industry, the Panel recommends that the CETC be governed by an independent Board of Directors whose sole responsibly is the strategy and oversight of the Commission’s activities. The Board would be entirely separate from the Joint Hearing Panel that renders regulatory decisions on behalf of the Commission, based on information provided by the independent CEIA. The new design explicitly avoids the regulator being involved in decisions that the Panel believes should be publicly decided. The Panel also envisions a larger, more diverse pool of hearing commissioners.Importantly, the Report suggests that the CETC legislation be amended to provide authority and specific criteria for three separate classes of review (i) Project of national consequence would be subject to the three-year review process described above, and require approval and licensing permission from the GIC and Joint Hearing Panel, respectively.(ii) Projects of significance would require only a licensing review process, and not be subject to a ‘national interest’ determination by the GIC.(iii) Small-scale activities would require review and approval by the CETC, though not through a Joint Panel review.It is unclear what practical distinctions the Panel conceives for each of the three categories, but ultimately, this tiered system would see projects reviewed and approved in a manner commensurate with their scale and risk. Also of note is the recommendation that Section 58(1) of the current National Energy Board Act be repealed. That Section grants the NEB broad powers to waive regulatory requirements for certain projects. The Panel states that, regardless of a project’s size, regulatory review and environmental impact assessments should always be undertaken, but in a way that tracks the scale of the activity in question.4. Improving Public ParticipationThe Panel heard repeated concerns on how the current NEB, as a quasi-judicial body and master of its own procedure, can appear to favour those stakeholders with the resources to hire experts and lawyers to argue their case. To effect public participation in the hearing process, the Panel recommends funding a Public Intervener Office which would, among other things, provide interested parties with information regarding the hearing process, coordinate studies on relevant public interests, and even represent those interests before Joint Panel Hearings.The Panel also recommends increasing the scope of potential hearing participants. At present, the NEB may consider only the petitions of those ‘directly affected’ by a proposed project. The new CETC hearing process would allow claims from any interested party with a ‘reasonable opportunity to participate,’ and abolish tests of standing. This may drastically increase the number of parties the Joint Panel would be required to hear from and consider. The Report dismisses, however, any concerns that such an increase would impede or overwhelm the proceedings.5. Modernizing Lifecycle RegulationThe Panel envisions the CETC setting standards in regulations and license conditions, but also identifying and promulgating best practices that increase overall system performance beyond the regulatory floor. For transmission line lifecycles in particular, the monitoring network is proposed to have four primary components CETC inspectors, industry monitoring and reporting, formal programs for involvement of Indigenous communities, and reporting mechanisms for members of the public who observe risks and incidents. This network is to leverage the monitoring infrastructure already in place, but also expand to formally involve communities surrounding energy transmission lines. To this end, the Panel further recommends that the CETC be responsible for publishing plain-language rules for liability and spill-response obligations that are more accessible to the general population. The monitoring network would also involve, through the enabling legislation, the creation of Regional Multi-Stakeholder Committees to provide input at every operational stage of a project.6. Respecting LandownersThe Panel also emphasizes the need for coordination between provincial and federal governments in harmonizing relationships with landowners whose property might be impacted by energy infrastructure. In this respect, the CETC would enact rigorous standards for first contact with landowners, and would require that they be provided with comprehensive explanations of expected disturbances to their land. The legislation would also prescribe a cooling-off period between first contact and signing, to ensure that landowners fully consider the impact of their agreements. In pursuit of this objective, the Panel recommends establishing a Landowners Ombudsman to review and make recommendations on improving landowner relationships, provide procedural information, enable better mediation, and even provide funding for access to legal advice.ImplicationsIt may be too early to say what practical effect the Panel’s recommendations will have on the current state of energy transmission regulation in Canada. The federal Government is accepting comments on the Report until June 14, 2017, and several of the Panel’s endorsements – such as having both the CETC and the CEIA situated in Ottawa instead of Calgary – have already received strong opposition. In any event, the Government will be reviewing the Panel’s recommendations, along with several other environmental and regulatory reports, over the coming months. That review will ultimately determine the trajectory of legislative reform for Canada’s energy regulator.<p style="text-align:justify;">​On May 15, 2017, the Expert Panel on the Modernization of the National Energy Board (NEB) released its report <a href="https://www.nrcan.gc.ca/sites/www.nrcan.gc.ca/files/pdf/NEB-Modernization-Report-EN-WebReady.pdf" target="_blank"><em>Forward, Together – Enabling Canada’s Clean, Safe and Secure Energy Future</em></a> (Report). The Report explores reform in several theme areas including the NEB’s mandate, Indigenous engagement, decision-making and governance, lifecycle regulation, and public participation. The Panel recommendations relate not just to the modernization of the NEB, but to affecting Canada’s overall approach to energy infrastructure and climate change, and propose significant changes to the structure and workings of the NEB as we know it today. </p><h3>Background</h3><p style="text-align:justify;">At present, the NEB oversees a portion of Canada’s overall energy system: transboundary pipelines and electric transmission lines, and energy imports and exports. The NEB is also responsible for publishing data on energy transmission and infrastructure, which it uses as a basis for many of its regulatory decisions. The Panel was convened in late 2016 following a Prime Ministerial mandate issued to the Minister of Natural Resources. The Panel was given a broad mandate to “modernize the NEB” and “aim to position the NEB as a modern, efficient and effective energy regulator and regain public trust.” </p><h3>The Report</h3><p style="text-align:justify;">Most significantly, the Report recommends separating and expanding the NEB’s core functions by creating two new legislatively-empowered bodies: the Canadian Energy Transmission Commission (CETC), and the Canadian Energy Information Agency (CEIA).</p><h4>1. Reforming the Legislative Mandate</h4><p style="text-align:justify;">Under the proposed scheme, the CETC would retain the NEB’s current mandate and legislative authority to approve or deny transboundary pipelines and transmission line projects. However, the Report recommends significant changes to the project review process. At a preliminary stage, all major projects would be subject to a year-long deliberation by the Governor in Council (GIC), to determine whether a project aligns with the ‘national interest.’ On approval, the project would move to a detailed review and environmental assessment, followed by a licensing decision. The CETC would exercise that authority through a Joint Hearing Panel comprised of two CETC members, two Canadian Environmental Assessment Agency commissioners, and an additional, independent commissioner. The Joint Hearing Panel would include at least one Indigenous member, and be informed by substantive Indigenous consultation and stakeholder engagement.</p><p style="text-align:justify;">Having the GIC make a preliminary determination on national interest means proposals such as Kinder Morgan's Trans Mountain expansion, or TransCanada's Energy East project would require the approval of Cabinet before entering any sort of detailed project review. While there are benefits to having the GIC decide the fate of a project early in the process, it is worth noting that the three-year review recommendation is a significant increase from the 15 months required under current NEB legislation.</p><p style="text-align:justify;">To address concerns about the integrity of Canadian energy information and analysis, the Panel recommends establishing the CEIA. Presently, the NEB produces much of the data that underpins its own regulatory decisions. The Report suggests this has undermined public confidence in the NEB as an independent and impartial regulator. The CEIA, as an independent body reporting to the Minister of Natural Resources, would serve as a single clearinghouse for all energy data, sourced from both domestic and international agencies. The CEIA would collect and disseminate energy data, produce annual public reports, and measure quantitative analysis against the ambitioned goals of Canada’s energy strategy.</p><h4>2. Improving Relationships with Indigenous Peoples</h4><p style="text-align:justify;">The Report emphasizes the interests of Indigenous peoples and their involvement in high-level policy creation throughout. The Panel notes that current funding programs are often consumed by legal representation and third-party science, and do little to enhance the capacity of Indigenous communities at a systemic level. The Panel therefore recommends the creation of a new Indigenous Major Projects Office which would, under the governance of Indigenous peoples, formally define processes and accountabilities for consultation. The Office would also generate best practices for environmental assessments and regulatory reviews, with a view to improving Indigenous participation in the planning and licensing stages of major projects. The Report also urges that the role of the Crown in formal consultations should not be delegated to project proponents. </p><h4>3. Reformed Governance and Decision-Making</h4><p style="text-align:justify;">Many of the Report’s recommendations arise from public concern that the NEB is a biased overseer of major energy projects. Keen to dispel criticisms of a ‘self-regulating’ industry, the Panel recommends that the CETC be governed by an independent Board of Directors whose sole responsibly is the strategy and oversight of the Commission’s activities. The Board would be entirely separate from the Joint Hearing Panel that renders regulatory decisions on behalf of the Commission, based on information provided by the independent CEIA. The new design explicitly avoids the regulator being involved in decisions that the Panel believes should be publicly decided. The Panel also envisions a larger, more diverse pool of hearing commissioners.</p><p style="text-align:justify;">Importantly, the Report suggests that the CETC legislation be amended to provide authority and specific criteria for three separate classes of review: </p><blockquote dir="ltr" style="margin-right:0px;"><p style="text-align:justify;">(i) Project of national consequence would be subject to the three-year review process described above, and require approval and licensing permission from the GIC and Joint Hearing Panel, respectively.</p><p style="text-align:justify;">(ii) Projects of significance would require only a licensing review process, and not be subject to a ‘national interest’ determination by the GIC.</p><p style="text-align:justify;">(iii) Small-scale activities would require review and approval by the CETC, though not through a Joint Panel review.</p></blockquote><p style="text-align:justify;">It is unclear what practical distinctions the Panel conceives for each of the three categories, but ultimately, this tiered system would see projects reviewed and approved in a manner commensurate with their scale and risk. Also of note is the recommendation that Section 58(1) of the current <em>National Energy Board Act </em>be repealed. That Section grants the NEB broad powers to waive regulatory requirements for certain projects. The Panel states that, regardless of a project’s size, regulatory review and environmental impact assessments should always be undertaken, but in a way that tracks the scale of the activity in question.</p><h4>4. Improving Public Participation</h4><p style="text-align:justify;">The Panel heard repeated concerns on how the current NEB, as a quasi-judicial body and master of its own procedure, can appear to favour those stakeholders with the resources to hire experts and lawyers to argue their case. To effect public participation in the hearing process, the Panel recommends funding a Public Intervener Office which would, among other things, provide interested parties with information regarding the hearing process, coordinate studies on relevant public interests, and even represent those interests before Joint Panel Hearings.</p><p style="text-align:justify;">The Panel also recommends increasing the scope of potential hearing participants. At present, the NEB may consider only the petitions of those ‘directly affected’ by a proposed project. The new CETC hearing process would allow claims from any interested party with a ‘reasonable opportunity to participate,’ and abolish tests of standing. This may drastically increase the number of parties the Joint Panel would be required to hear from and consider. The Report dismisses, however, any concerns that such an increase would impede or overwhelm the proceedings.</p><h4>5. Modernizing Lifecycle Regulation</h4><p style="text-align:justify;">The Panel envisions the CETC setting standards in regulations and license conditions, but also identifying and promulgating best practices that increase overall system performance beyond the regulatory floor. For transmission line lifecycles in particular, the monitoring network is proposed to have four primary components: CETC inspectors, industry monitoring and reporting, formal programs for involvement of Indigenous communities, and reporting mechanisms for members of the public who observe risks and incidents. This network is to leverage the monitoring infrastructure already in place, but also expand to formally involve communities surrounding energy transmission lines. To this end, the Panel further recommends that the CETC be responsible for publishing plain-language rules for liability and spill-response obligations that are more accessible to the general population. The monitoring network would also involve, through the enabling legislation, the creation of Regional Multi-Stakeholder Committees to provide input at every operational stage of a project.</p><h4>6. Respecting Landowners</h4><p style="text-align:justify;">The Panel also emphasizes the need for coordination between provincial and federal governments in harmonizing relationships with landowners whose property might be impacted by energy infrastructure. In this respect, the CETC would enact rigorous standards for first contact with landowners, and would require that they be provided with comprehensive explanations of expected disturbances to their land. The legislation would also prescribe a cooling-off period between first contact and signing, to ensure that landowners fully consider the impact of their agreements. In pursuit of this objective, the Panel recommends establishing a Landowners Ombudsman to review and make recommendations on improving landowner relationships, provide procedural information, enable better mediation, and even provide funding for access to legal advice.</p><h3>Implications</h3><p style="text-align:justify;">It may be too early to say what practical effect the Panel’s recommendations will have on the current state of energy transmission regulation in Canada. The federal Government is accepting comments on the Report until June 14, 2017, and several of the Panel’s endorsements – such as having both the CETC and the CEIA situated in Ottawa instead of Calgary – have already received strong opposition. In any event, the Government will be reviewing the Panel’s recommendations, along with several other environmental and regulatory reports, over the coming months. That review will ultimately determine the trajectory of legislative reform for Canada’s energy regulator.</p>6/12/2017 4:00:00 AM2017-06-12T04:00:00ZTrue1float;#6.00000000000000float;#2017.00000000000string;#Junefloat;#201706.000000000GP0|#7ea7e480-c8e7-48db-baae-396516e81926;L0|#07ea7e480-c8e7-48db-baae-396516e81926|Pipelines;GTSet|#939fe804-8a2a-4cfa-af8f-5756b32ac3ca;GP0|#79f5b025-e6dd-4c66-873b-67e8780cf972;L0|#079f5b025-e6dd-4c66-873b-67e8780cf972|Regulatory;GP0|#25c10a20-abf9-445c-9450-bd6f8fdc5b98;L0|#025c10a20-abf9-445c-9450-bd6f8fdc5b98|National Energy BoardPipelines;Regulatory;National Energy Board
Pipelines and Public Interest: Attorney General of Alberta Granted Intervener StatusPipelines and Public Interest: Attorney General of Alberta Granted Intervener Status320BLG Blog PostAlan L. Rossaross@blg.com | Alan L. Ross | 693A30232E777C626C6763616E6164615C61726F7373 i:0#.w|blgcanada\aross​On May 15, 2017, the Federal Court of Appeal (FCA) issued its reasons for an order in Tsleil-Waututh Nation et al v Attorney General of Canada, National Energy Board, and Trans Mountain Pipeline, 2017 FCA 104, granting the Attorney General of Alberta (AGA) leave to intervene in the proceedings. The judicial review challenges a National Energy Board (NEB) report and recommendation, as well as a Governor in Council's order approving the expansion of the Trans Mountain Pipeline.[Read more...]<p style="text-align:justify;">​On May 15, 2017, the Federal Court of Appeal (FCA) issued its reasons for an order in <em>Tsleil-Waututh Nation et al v Attorney General of </em><em>Canada, National Energy Board, and Trans Mountain Pipeline</em>, 2017 FCA 104, granting the Attorney General of Alberta (AGA) leave to intervene in the proceedings. The judicial review challenges a National Energy Board (NEB) report and recommendation, as well as a Governor in Council's order approving the expansion of the Trans Mountain Pipeline.</p><p style="text-align:justify;">[<a href="/energy/Pages/Post.aspx?PID=320" target="_blank"><em>Read more</em></a>...]</p>​​On May 15, 2017, the Federal Court of Appeal (FCA) issued its reasons for an order in Tsleil-Waututh Nation et al v Attorney General of Canada, National Energy Board, and Trans Mountain Pipeline, 2017 FCA 104, granting the Attorney General of Alberta (AGA) leave to intervene in the proceedings. The judicial review challenges a National Energy Board (NEB) report and recommendation, as well as a Governor in Council's order approving the expansion of the Trans Mountain Pipeline.BackgroundOn May 19, 2016, the NEB issued a report which found Kinder Morgan’s proposed Trans Mountain Expansion Project (Project) to be in Canada’s public interest, and recommended that the federal Governor in Council conditionally approve the Project. The Project – at a purported cost of $7.4 billion – will expand the existing marine terminal in Burnaby, BC, add approximately 987 km of new pipeline with new and modified facilities, and increase capacity from 300,000 barrels per day to 890,000. Subsequently, on November 29, 2016, an order by the Governor in Council approved the Project.Beginning in May of 2016, several parties brought applications for judicial review of those administrative decisions. On various bases, the applications aim to quash the recommendation and approval, and effectively bring the Project to a halt. In order to streamline proceedings, the Court consolidated 16 applications involving 31 parties. The applicants, led by the Tsleil-Waututh Nation, are comprised of several municipalities, First Nations, Indigenous communities and environmental groups.Before the Court on this application were two motions for leave to intervene, brought by the AGA and the Tsartlip First Nation (Tsartlip).DecisionThe AGA’s MotionRule 110(c) of the Federal Courts Rules provides that where a question of general importance is raised in a proceeding, an Attorney General of a province may apply to intervene. The applicant in the overall proceeding, the Tsleil-Waututh Nation, contested the AGA’s motion on the basis that, among other things, it could only apply for leave if the prerogatives for intervention under Rule 109 had been satisfied. Further, the applicant argued that intervener status for an Attorney General may only be granted where the prerequisites under Rules 110 (a) and (b) have also been satisfied.In an exercise of statutory interpretation, the Court reasoned that it would be contrary to public interest for Attorneys General to have to satisfy the prerequisites of Rule 109 andRule 110, while private parties need only satisfy the former. As Justice Stratas writes,Much clearer legislative language would be necessary to persuade me that the legislative drafter intended that Attorneys General – who represent broader interests, potentially the interests of millions of members of the public – should face more impediments to intervention than private parties.Relying on previous decisions of the FCA, Justice Stratas found that, given the role of Attorneys General as representatives of the Crown and promoters of the public interest, it would be an absurd result that they be placed in a worse position than private parties wishing to intervene. As relied on by the AGA, there are several other decisions of the FCA allowing leave to intervene under Rule 110(c) without having to satisfy other requirements under Rules 109 and 110. The Court held that, without clear legislative language to the contrary, or argument that the case law on this point is manifestly wrong, the AGA should be permitted to intervene under Rule 110(c).The Court noted, however, that the admission of Attorneys General is not automatic, and the requirement to apply in support of a “question of general importance” must still be satisfied. Such questions are ones that generally affect the interest of the government or population in the relevant jurisdiction (see Vancouver Wharves Ltd v Canada (Labour, Regional Safety Officer), [1996] FCJ No 183). The AGA argued that the Trans Mountain Pipeline is geographically located in Alberta, and the Project would provide access to Alberta’s natural resources for the benefit of the economy. The AGA further argued that the outcome of these consolidated proceedings would have serious implications for future interprovincial pipeline projects. Given the significance of the Project to the development of energy resources, the public interest in facilitating clear and consistent methods of approving resource development projects, and legal questions concerning the rights of interested Indigenous communities, the Court held that the test for intervention was met.Tsartlip’s MotionConversely, the application by the Tsartlip for leave to intervene under Rule 109 was denied. In its notice of motion, the Tsartlip had suggested that the decisions of the National Energy Board and Governor in Council should be quashed on the basis that they adversely affected the Tsartlip’s own rights and interests. The Court, however, agreed with Trans Mountain’s contention that the motion was an improper attempt to obtain full-party status without having to file an application for judicial review. The Tsartlip had declined to apply previously. The Court noted that the application before it was, in substance, an application for judicial review in the guise of a motion to intervene. Justice Stratas concluded that, if the Tsartlip had a direct interest in quashing the administrative decisions, they should have brought an application for judicial review in a timely manner. They could not now be allowed to use Rule 109 to achieve the same outcome.The Court also rejected the argument that an application for judicial review would be “prohibitively expensive.” Importantly, an intervener must rely on the same evidentiary record as those other parties to the proceedings, as their role is to assist the Court in making a determination on that record. Given that the cost of a judicial review application where the party is not responsible for preparing an evidentiary record is roughly equivalent to a motion for leave to intervene, there was no merit to the argument that it was too expensive to do so. Consequently, the Tsartlip’s motion was dismissed.ImplicationsHaving been granted leave to intervene, the AGA may now make written and oral submissions in the course of the judicial review. As noted by the Court and evinced by statements from the Province, these submissions will be in support of the respondent Attorney General of Canada, NEB, and Trans Mountain. Premier Notley, in a press release following the decision, stated the province’s intention to “[fight] for Alberta's interests in court to get oil flowing to new markets and a better return for Albertans on every barrel." The AGA also submitted that the Province is committed to assessing the Project’s impact on upstream greenhouse gas emissions, and to promoting predictable rules and processes that facilitate resource development in the public interest.There is every indication that submissions made by the AGA will support the Project’s approval, and strive to have the contested decisions upheld. However, as noted, the role of an intervener is to assist the Court in evaluating the record of evidence. To this end, the AGA is confined to submissions on evidence entered by other parties – whether it be good or bad. This may ultimately decide the AGA’s significance in the action.<p style="text-align:justify;">​​On May 15, 2017, the Federal Court of Appeal (FCA) issued its reasons for an order in <em>Tsleil-Waututh Nation et al v Attorney General of </em><em>Canada, National Energy Board, and Trans Mountain Pipeline</em>, 2017 FCA 104, granting the Attorney General of Alberta (AGA) leave to intervene in the proceedings. The judicial review challenges a National Energy Board (NEB) report and recommendation, as well as a Governor in Council's order approving the expansion of the Trans Mountain Pipeline.</p><h3>Background</h3><p style="text-align:justify;">On May 19, 2016, the NEB issued a report which found Kinder Morgan’s proposed Trans Mountain Expansion Project (Project) to be in Canada’s public interest, and recommended that the federal Governor in Council conditionally approve the Project. The Project – at a purported cost of $7.4 billion – will expand the existing marine terminal in Burnaby, BC, add approximately 987 km of new pipeline with new and modified facilities, and increase capacity from 300,000 barrels per day to 890,000. Subsequently, on November 29, 2016, an order by the Governor in Council approved the Project.</p><p style="text-align:justify;">Beginning in May of 2016, several parties brought applications for judicial review of those administrative decisions. On various bases, the applications aim to quash the recommendation and approval, and effectively bring the Project to a halt. In order to streamline proceedings, the Court consolidated 16 applications involving 31 parties. The applicants, led by the Tsleil-Waututh Nation, are comprised of several municipalities, First Nations, Indigenous communities and environmental groups.</p><p style="text-align:justify;">Before the Court on this application were two motions for leave to intervene, brought by the AGA and the Tsartlip First Nation (Tsartlip).</p><h3>Decision</h3><p style="text-align:justify;text-decoration:underline;">The AGA’s Motion</p><p style="text-align:justify;">Rule 110(c) of the <em>Federal Courts Rules</em> provides that where a question of general importance is raised in a proceeding, an Attorney General of a province may apply to intervene. The applicant in the overall proceeding, the Tsleil-Waututh Nation, contested the AGA’s motion on the basis that, among other things, it could only apply for leave if the prerogatives for intervention under Rule 109 had been satisfied. Further, the applicant argued that intervener status for an Attorney General may only be granted where the prerequisites under Rules 110 (a) and (b) have also been satisfied.</p><p style="text-align:justify;">In an exercise of statutory interpretation, the Court reasoned that it would be contrary to public interest for Attorneys General to have to satisfy the prerequisites of Rule 109 andRule 110, while private parties need only satisfy the former. As Justice Stratas writes,</p><blockquote dir="ltr" style="margin-right:0px;"><p style="text-align:justify;">Much clearer legislative language would be necessary to persuade me that the legislative drafter intended that Attorneys General – who represent broader interests, potentially the interests of millions of members of the public – should face more impediments to intervention than private parties.</p></blockquote><p style="text-align:justify;">Relying on previous decisions of the FCA, Justice Stratas found that, given the role of Attorneys General as representatives of the Crown and promoters of the public interest, it would be an absurd result that they be placed in a worse position than private parties wishing to intervene. As relied on by the AGA, there are several other decisions of the FCA allowing leave to intervene under Rule 110(c) without having to satisfy other requirements under Rules 109 and 110. The Court held that, without clear legislative language to the contrary, or argument that the case law on this point is manifestly wrong, the AGA should be permitted to intervene under Rule 110(c).</p><p style="text-align:justify;">The Court noted, however, that the admission of Attorneys General is not automatic, and the requirement to apply in support of a “question of general importance” must still be satisfied. Such questions are ones that generally affect the interest of the government or population in the relevant jurisdiction (see <em>Vancouver Wharves Ltd v Canada (Labour, Regional Safety Officer)</em>, [1996] FCJ No 183). The AGA argued that the Trans Mountain Pipeline is geographically located in Alberta, and the Project would provide access to Alberta’s natural resources for the benefit of the economy. The AGA further argued that the outcome of these consolidated proceedings would have serious implications for future interprovincial pipeline projects. Given the significance of the Project to the development of energy resources, the public interest in facilitating clear and consistent methods of approving resource development projects, and legal questions concerning the rights of interested Indigenous communities, the Court held that the test for intervention was met.</p><p style="text-decoration:underline;">Tsartlip’s Motion</p><p style="text-align:justify;">Conversely, the application by the Tsartlip for leave to intervene under Rule 109 was denied. In its notice of motion, the Tsartlip had suggested that the decisions of the National Energy Board and Governor in Council should be quashed on the basis that they adversely affected the Tsartlip’s own rights and interests. The Court, however, agreed with Trans Mountain’s contention that the motion was an improper attempt to obtain full-party status without having to file an application for judicial review. The Tsartlip had declined to apply previously. The Court noted that the application before it was, in substance, an application for judicial review in the guise of a motion to intervene. Justice Stratas concluded that, if the Tsartlip had a direct interest in quashing the administrative decisions, they should have brought an application for judicial review in a timely manner. They could not now be allowed to use Rule 109 to achieve the same outcome.</p><p style="text-align:justify;">The Court also rejected the argument that an application for judicial review would be “prohibitively expensive.” Importantly, an intervener must rely on the same evidentiary record as those other parties to the proceedings, as their role is to assist the Court in making a determination on that record. Given that the cost of a judicial review application where the party is not responsible for preparing an evidentiary record is roughly equivalent to a motion for leave to intervene, there was no merit to the argument that it was too expensive to do so. Consequently, the Tsartlip’s motion was dismissed.</p><h3>Implications</h3><p style="text-align:justify;">Having been granted leave to intervene, the AGA may now make written and oral submissions in the course of the judicial review. As noted by the Court and evinced by statements from the Province, these submissions will be in support of the respondent Attorney General of Canada, NEB, and Trans Mountain. Premier Notley, in a press release following the decision, stated the province’s intention to “[fight] for Alberta's interests in court to get oil flowing to new markets and a better return for Albertans on every barrel." The AGA also submitted that the Province is committed to assessing the Project’s impact on upstream greenhouse gas emissions, and to promoting predictable rules and processes that facilitate resource development in the public interest.</p><p style="text-align:justify;">There is every indication that submissions made by the AGA will support the Project’s approval, and strive to have the contested decisions upheld. However, as noted, the role of an intervener is to assist the Court in evaluating the record of evidence. To this end, the AGA is confined to submissions on evidence entered by other parties – whether it be good or bad. This may ultimately decide the AGA’s significance in the action.</p>6/7/2017 4:00:00 AM2017-06-07T04:00:00ZTrue1float;#6.00000000000000float;#2017.00000000000string;#Junefloat;#201706.000000000GP0|#4e9fc7d5-bb0d-4cd4-878d-b18db04a4118;L0|#04e9fc7d5-bb0d-4cd4-878d-b18db04a4118|British Columbia;GTSet|#939fe804-8a2a-4cfa-af8f-5756b32ac3ca;GP0|#7ea7e480-c8e7-48db-baae-396516e81926;L0|#07ea7e480-c8e7-48db-baae-396516e81926|Pipelines;GP0|#79f5b025-e6dd-4c66-873b-67e8780cf972;L0|#079f5b025-e6dd-4c66-873b-67e8780cf972|RegulatoryBritish Columbia;Pipelines;Regulatory