Canadian Institute of Resources Law
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The Canadian Institute of Resources Law (CIRL), a registered charitable organization, is a leading national centre of expertise on energy and environmental policy and law issues relating to Alberta's energy and natural resources. Since its establishment in 1979, the Institute has developed an international reputation for excellence in resources, energy and environmental law, and pursues a three-fold mandate to undertake research, education and publication activities on energy and the environment.
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Item Open Access Alberta First Nations Consultation & Accommodation Handbook – Updated to 2016(Canadian Institute of Resources Law, 2016-03) Laidlaw, DavidThis is an Update to our Alberta First Nations Consultation & Accommodation Handbook published on March 30, 2014 as CIRL Occasional Paper #44 (Handbook). The Handbook was a critical assessment of Alberta’s approach to satisfying the Crown’s duty to consult and accommodate aboriginal people in Alberta under The Government of Alberta’s Policy on Consultation with First Nations on Land and Natural Resource Management, 2013 (Consultation Policy). In the Handbook we reviewed the Consultation Policy, associated legislation and draft Corporate Guidelines as they existed at March 30, 2014. In this Update, we analyze the finalized guidelines, The Government of Alberta’s Guidelines on Consultation with First Nations on Land and Natural Resource Management (July 28, 2014) (Guidelines) together with relevant developments since March 30, 2014.Item Open Access The Peel Watershed Case: Implications for Aboriginal Consultation and Land Use Planning in Alberta(Canadian Institute of Resources Law, 2017-03-31) Jaremko, Sara L.As in Alberta, the Government of the Yukon has been working on comprehensive land-use planning legislation. The Yukon Court of Appeal decision considered the Peel Watershed Regional Plan that covers a large underpopulated and largely undeveloped area of the Yukon, with the potential for oil and gas and hard rock mineral development, in the context of the duty of the Crown to consult with First Nations communities in the land use planning process. This publication reviews the Peel Watershed decision and its implications for land use planning and consultation with the First Nations in Alberta. The paper addresses issues that include the status of land use planning consultation as a treaty right, procedural vs. substantive breaches of the duty to consult, and the potential for unilateral Crown decision-making in both contexts. The broader “spirit” of government obligation, the “honour of the Crown,” is considered in light of the recent SCC court decision.Item Open Access Species at Risk Act: A Comprehensive Inventory of Legislative Documents, 1973-2017(Canadian Institute of Resources Law (CIRL), 2018-03-02) Hoffman, Nadine; Canadian Institute of Resources LawThe long and complex history of the enactment of the Canadian Species at Risk Act (SARA) made this statute a prime target for a legislative and documentary history. The sheer volume of, and difficulty in locating, documents related to and considered in the development of SARA is vast. In a 30-year period, 18 bills relating to species protection were introduced in the House of Commons. In the past 15 years, 12 amending bills were introduced and 70 pieces of subordinate legislation were registered under SARA (largely regulations and Orders in Council). This legislative and documentary history includes all bills, amendments, and regulations, beginning with the 1973 Speech from the Throne and ending in February 2018. It also includes parliamentary papers and committee reports, related international treaties, regulatory process information, reports and backgrounders from various government departments and non-government organizations (NGO’s), and selected scholarly articles documenting the legislative process. The purpose of this legislative and documentary history is to facilitate an understanding of the legislative framework for SARA and assist with identifying primary legal documents related to endangered species research in Canada.Item Open Access Reflexive legal processes for environmental bridging organizations in the Calgary Region(Canadian Institute of Resources Law, 2016-06-17) Stewart, Judyn Canadian provinces, municipalities are responsible for most land use management on private lands, and are encouraged to protect provincially owned natural resources from local land use impacts. Policy and regulatory gaps exist at the regional-scale for managing municipal land use impacts on natural resources, such as air, water and ecological resources that cross multiple municipal boundaries and jurisdictions. In the Calgary Metropolitan Region in southern Alberta, three multi-stakeholder environmental bridging organizations (the Calgary Regional Partnership, the Bow River Basin Council, and Calgary Regional Airshed Zone) emerged, connecting municipal, public and private stakeholders who shared interests in land use, watershed and airshed management, respectively. These organizations co-created natural resource management plans (co-created plans) to address transboundary and interjurisdictional issues not addressed through provincial laws or municipal bylaws. Because the organizations have no legal mandate or authority, they operate alongside the provincial environmental policy and regulatory system. The Calgary Metropolitan Region provided a demonstration context for conducting transdisciplinary research, combining emerging theories of reflexive law, environmental governance, and bridging organizations. Reflexive legal theory is deliberately applied to support and legitimize the role of environmental bridging organizations in ‘bridging’ environmental policy and regulatory gaps between provincial and municipal authorities at a regional-scale.Item Open Access A Critical Exploration of the South Saskatchewan Regional Plan in Alberta(Canadian Institute of Resources Law, 2016-03) Jaremko, Sara L.The Government of Alberta has in recent years been implementing comprehensive land use planning through policy and legislation. This paper will be a critical exploration of the South Saskatchewan Regional Plan (SSRP) under the Alberta Land and Stewardship Act. It will first bring the SSRP into a practical view by describing the South Saskatchewan region, discussing the relevant history of integrated landscape planning, provide an overview of the policy framework, and review the legal nature of the SSRP itself, including its structure and binding nature and interaction with other regulatory management. It will then discuss the SSRP’s status: its effective date being at September 1, 2014, amendments made to the final SSRP, and describe matters remaining to be completed for implementation. It will then discuss the effect the SSRP has had thus far. It will finally provide critical evaluation revisiting the controversy associated with land use planning in general, outlining the plan’s praise and criticism, in light of cumulative effects and other management objectives, refer to previous evaluation criteria, and provide analysis.Item Open Access Bill C-38 and the Evolution of the National Energy Board: The Changing Role of the National Energy Board from 1959 to 2015(Canadian Institute of Resources Law, 2016-02) Savage, SonyaThis paper will explore how the legislative changes and the torqued political debate surrounding the development and transportation of crude oil is changing the role of the National Energy Board (NEB). It will examine how environmental activists strategically targeted the hearing processes of the NEB and how the Federal government responded with Bill C-38, a “legislative fix” to this activity. It will consider how Bill C-38, in turn, led to more demands for public consultation in the process, parallel provincial processes, more litigation and judicial review and a growing lack of public confidence in the integrity of the process and of the NEB itself. Finally, it will explore how all of this may have led to an evolving activist regulator, sensitive to public opinion far and beyond its role as originally conceived. This paper will examine the historical roots of the NEB, its role over the past 56 years and how that has evolved as a result of Bill C-38 amendments and the current political storm. It will examine Bill C-38 and conclude that those changes, in and of themselves, did not fundamentally change how the NEB conducts its business or its independence. Instead, the evolving role of the NEB is more connected to building public trust in its role as a regulator and repairing a public perception of a gutted process than to anything that Bill C-38 itself changed. All of this will be examined through four case studies of oil pipeline projects before the Board before and after the 2012 amendments.Item Open Access ◾Linkage: Recent Developments in the EU, Australia, Quebec and California(Canadian Institute of Resources Law, 2016-02-17) Vaiciulis, RolandasEmissions trading is not a new phenomenon. Emissions Trading Schemes (ETSs) have long been used as market-based environmental policy tools for combating climate change in a cost-effective way. Currently, the European Union (EU), Australia, Japan, some US states and Canadian provinces, New Zealand, South Korea and China, have established or are currently developing their ETSs. Considerations for establishing further ETSs are also in progress in Brazil, Chile, Mexico and Turkey.Item Open Access Reflections on Ecosystem Services: A Step Forward in the Protection of Nature?(Canadian Institute of Resources Law, 2016-02-17) Bruno, GiorilynThe theoretical concepts of ecosystem services were introduced in natural resource management to engage with the dominant political and economic perspectives and attempt to promote conservation in a pragmatic way. However, due to the challenges in their implementation and their reliance on utilitarian rationales, scholars debate whether this approach is appropriate to achieve long-term sustainability goals. This article provides background and discusses the general theoretical concepts of ecosystem services, discusses the practical challenges of implementing ecosystem services and developing this concept as a framework for resources management, discusses the moral implications and the problematic consequences of treating nature as a commodity, summarizes the results, and provides the conclusion.Item Open Access Linking Emissions Trading Schemes: Analysis and Recommendations for EU-Australia and Quebec-California Linkages(Canadian Institute of Resources Law, 2015-09) Vaiciulis, RolandasSince the introduction of international emissions trading by the Kyoto Protocol, the emissions trading mechanism used to reduce greenhouse gas (GHG) emissions appears to regain attention at both, the national and the regional levels. Currently, the European Union (EU), Australia, Japan, some United States (US) states and Canadian provinces, New Zealand, South Korea and China, have already established or are currently developing their emissions trading schemes (ETSs). Considerations for establishing further ETSs are also in progress in Brazil, Chile, Mexico, Ukraine and Turkey. This paper aims at examining the following question: Will the EU-Australia and Quebec-California be able to achieve an effective linkage with each other? In addressing this question, this paper will first discuss design elements that were identified in the literature review as crucial for the linking of different ETSs, and then consider how each design feature is addressed by the potential linking partners, identifying potential incompatibilities, if any, and outlining what adjustments, if any, might be made to facilitate effective linkages between them.Item Open Access The Nuclear Fuel Waste Act and Canada’s Plan for the Long-Term Management of its Nuclear Fuel Waste(Canadian Institute of Resources Law, 2015-07) Sladic, RamonaIn 2002, the Government of Canada passed the Nuclear Fuel Waste Act (NFWA) which came into force on November 15 of the same year. The purpose of the NFWA is to “provide a framework to enable the Governor-in-Council to make, from the proposals of the waste management organization, a decision on the management of nuclear fuel waste that is based on a comprehensive, integrated and economically sound approach for Canada.” This paper will address Canada’s plan for the long-term management of its nuclear fuel waste. In addition to exploring the plan itself, the specific issues for analysis and discussion include a review of the key provisions of the NFWA, which serve as the legislative underpinnings for the development of Canada’s plan; a discussion of the waste management organization created pursuant to the NFWA; identification of the substantive progress that has been made in satisfying the intentions of the NFWA; a review of the legal challenges that have been brought forward involving the NFWA, the waste management organization, and the plan to date; and a hypothetical challenge that could be made to Canada’s plan.Item Open Access Regulating Hydraulic Fracturing: Regulatory Recourse for Subsurface Communication(Canadian Institute of Resources Law, 2015-09) Howard, KimberlyThis paper provides an overview of the legal framework for the regulation of hydraulic fracturing in Alberta and examines the potential regulatory options and liability for subsurface communication caused by hydraulic fracturing activities. Specifically, this paper examines the jurisdiction of the Alberta Energy Regulator (AER) to: (i) order that operations be shut-in or suspended due to communication, (ii) impose obligations on industry to provide notification of hydraulic fracturing activities, including subsurface communication, (iii) order mandatory commingling orders, (iv) encourage production sharing agreements, and (v) impose testing, monitoring, production controls and reporting obligations. With the widespread use of multistage horizontal hydraulic fracturing, disputes related to subsurface communication will continue to be raised with the AER and in the courts. Thus far the AER has taken a risk management approach through monitoring and testing requirements. Generally, the AER has permitted development to occur by endorsing an approach which relies on the known and inevitable consequences of mining and recovering the minerals. This approach has been justified by the AER on the basis that any production of another’s minerals does not result in irreparable harm. The harm or damaged caused can be identified, quantified and compensation paid.Item Open Access Calibrating Liquefied Natural Gas Export Life Cycle Assessment: Accounting for Legal Boundaries and Post-Export Markets(Canadian Institute of Resources Law, 2015-05) Coleman, James; Kasumu, Dr. Adebola S.; Liendo, Jeanne; Li, Vivian; Jordaan, Dr. Sarah M.The climate impact of liquefied natural gas (LNG) export from North America is one of the most pressing questions for Canadian and world energy policy today. This paper performs the first life cycle assessment (LCA) of the greenhouse gas emissions from LNG exports from Canada, assuming that importing countries use the natural gas for electricity generation. It shows that the climate impact of LNG depends on where it is sent. If LNG from Canada displaces electricity in coal-dependent countries, it will likely lower global greenhouse gas emissions. If it displaces electricity from countries that rely on low carbon sources such as hydroelectricity and nuclear power, it will likely increase global emissions. A broad suite of policy and regulatory measures is discussed for reducing greenhouse gas emissions due to LNG export, from life cycle regulation to facility-level emissions management.Item Open Access Biodiversity and Conservation Offsets: A Guide for Albertans(Canadian Institute of Resources Law, 2015-05) Poulton, David W.The purpose of this paper is to introduce Albertans to one of these new tools, conservation offsets. Under an offset system the negative environmental impacts of land or resource development may be compensated for by the intentional creation of corresponding positive impacts. This paper describes this tool and the approach that Alberta is taking in policy development respecting offsets. It also offers some comments on the strengths and weaknesses of the approach Alberta is taking.Item Open Access Environmental Sentencing Policy in Alberta: A Critical Review(Canadian Institute of Resources Law, 2015-01) Nwapi, ChilenyeThis paper reviews the sentencing policy in environmental cases in Alberta, Canada with a view to identifying the underlying theoretical justifications, the prevailing sentencing options and the principles governing their application, and the factors that influence environmental sentencing generally in Alberta. The ultimate goal is to assess the application of the sentencing principles and factors to determine their usefulness and potential effectiveness. After analyzing the legal nature of environmental offences, the paper proceeds to analyze the theories informing environmental sentencing in Alberta. This is followed by a discussion of the available environmental sentencing options in Alberta and lastly by an analysis of the factors considered in the application of those options. A major conclusion of this paper is that there appears to be a deliberate policy towards increased fines – both traditional fines (fines simpliciter) and non-traditional fines (such as fines imposed in the nature of creative sentencing). This policy reflects increasing awareness in Alberta of the need to toughen up on environmental criminals.Item Open Access Book Review - Leasing Oil and Gas Interests: A Plain Language Account(Canadian Institute of Resources Law, 2015-03) Stewart, Fenner L.Mineral Land Rights: What You Need To Know is a 127-page book broken into 10 short chapters; it can be read, with ease, in a couple of hours. The genius of this work is that anyone who has even basic reading skills can understand the content of her text … with the exception of possibly Chapter 3, entitled Mineral Land Ownership. It would be a stretch to compare Ms. Louie’s prose to that of Alistair MacLeod’s, but both share the capacity to decode complex ideas into simple, direct language.1 In fact, the book reads as though she was explaining the nuances of the oil and gas industry to you over a cup of coffee at the local Tim Hortons.Item Open Access The European Union Emissions Trading Scheme: Criteria Evaluations & Lessons Learned(Canadian Institute of Resources Law, 2015-03) Yam, Josephine VictoriaIn its September 2013 report, the United Nation’s Intergovernmental Panel on Climate Change (IPCC) concluded that because the concentration of greenhouse gases (GHGs) has been rising rapidly, climate change has become a global commons problem. The IPCC strongly encouraged nations to pursue innovative approaches to reduce GHGs so that the world can avoid the deleterious effects of climate change on human lives, property and ecosystems.Item Open Access Alberta's CO2 Reduction Strategy - Assessing the Environmental Integrity of Emissions Trading Schemes(Canadian Institute of Resources Law, 2014-03) Radu, Ana MariaNational and regional emission trading schemes (ETSs) for greenhouse gas (GHG) emissions represent an essential policy response to climate change around the world. Witnessing a proliferation of carbon pricing schemes in different jurisdictions, the possibility of further reducing compliance costs by allowing allowances to be traded, not just within, the systems become reality. This is commonly referred as linking the systems. This process is not risk-free; as a matter of fact ill-considered links may be counter-productive, to the point that they might undercut the efforts to reduce GHG emissions. This paper signals the need to identify such ill links and points out the danger zones when linking ETSs. The paper proposes a criteria-based analysis in order to determine the degree of environmental integrity.Item Open Access Mexico's Energy Reform(Canadian Institute of Resources Law, 2015-02-10) de la Rosa Jaimes, VeronicaItem Open Access Mainstreaming Sustainability: An Evaluation of Alberta’s Legal and Regulatory Regime for Gas Development(Canadian Institute of Resources Law, 2015-02-10) Onuma, OriejiIn contrast to much of the existing literature on the concept of sustainability which has been largely academic and theoretical, this article examines sustainability from a practical “how to do” viewpoint. It does this by identifying criteria against which the current legal and regulatory framework that govern Alberta’s gas development is evaluated to determine its sustainability or otherwise.Item Open Access Alberta First Nations Consultation & Accommodation Handbook(Canadian Institute of Resources Law, 2014-03) Laidlaw, David; Passelac-Ross, MoniqueAlberta has had two attempts to develop a First Nation’s consultation and accommodation process. The first in 2005 was controversial for First Nations and frustrating for resource companies. The First Nation Consultation Policy (2013) was released on August 16, 2013. There were some conceptual improvements such as the centralization of First Nation Consultation and a consultation levy on resource companies. There are notable failures including the process of developing the new policy and the continued misunderstanding of the governing Treaties. Aboriginal consultation in Alberta after the new Policy will still be a frustrating, complicated, and expensive exercise despite government, industry, First Nations’ and public hopes. It need not be so. In this report, this latest attempt is described and critiqued with best practices from other jurisdiction suggested to correct the flaws.