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Federal duty to consult and accommodate Indigenous Peoples on Energy East explained
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Federal duty to consult and accommodate Indigenous Peoples on Energy East explained

[caption id="attachment_28942" align="alignleft" width="150"]Image of Adam Bond Adam Bond[/caption] The federal government's plan for consulting Indigenous Peoples adversely affected by the proposed Energy East pipeline may meet the minimum requirements of the constitutional duty to consult and accommodate concludes Elizabeth Harrison, the Summer Fellow with Nature Canada this past summer and law student at the University of Ottawa. Whether the government’s approach respects the principles of the United Nations Declaration on the Rights of Indigenous Peoples remains to be determined. In her paper, Harrison provides a thorough review of the government's legal duty to consult and accommodate Indigenous Peoples potentially impacted by government decision making. You can read her paper by clicking here. Harrison explains that the Supreme Court of Canada's decisions have gradually clarified the government's duty to consult based on indigenous rights under section 35 of the Constitution. Harrison's review of this case law explains that the government has a duty to uphold the "honour of the Crown" in its dealings with Indigenous Peoples, and this includes consulting and, where appropriate, compensating Indigenous Peoples where the government makes decisions that may adversely impact indigenous rights. Image of a maple tree Though Parliament may delegate the duty to consult on behalf of the government to administrative bodies and tribunals, such as the National Energy Board, the government is ultimately responsible for ensuring that the consultation and accommodation is adequate in the circumstances. In the case of Energy East, the government has committed to deeper, nation-to-nation consultation processes. Harrison notes that the government’s consultation plan for the proposed Energy East project is extensive and involves a number of consultation coordinators, staff from the federal and provincial governments, processes for identifying all potentially impacted indigenous groups, additional participant funding, and commitments to meet with indigenous groups throughout the NEB's Energy East hearing process as well as further consultation efforts after the NEB issues its report. While Indigenous Peoples have very serious concerns with the efforts and approaches the government has taken to consultation regarding the proposed Energy East project, Harrison concludes that the government's current consultation plan likely satisfies the legal duty to consult. Whether the government's consultation process satisfies its assumed obligations under the UNDRIP, remains an important question but one that Harrison explains is beyond the scope of her paper. Of course, this may all be moot given that TransCanada has now cancelled the Energy East project; however one can safely predict that issues relating to how governments consult and accommodate Indigenous Peoples will continue to arise with respect to future resource development projects.

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Report to Reform the NEB: Can this Horse run with the Cart before it?
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Report to Reform the NEB: Can this Horse run with the Cart before it?

[caption id="attachment_22697" align="alignleft" width="150"]Image of Stephen Hazell Stephen Hazell
Director of Conservation
and General Counsel[/caption] Released on May 15, the Report of the National Energy Board (NEB) Modernization Expert Panel sets out to regain public confidence in how energy (mainly pipelines) is regulated nationally. The Report does include recommendations that could partially achieve that goal, and significantly improve the role of the national energy regulator (to be known as the Canadian Energy Transmission Commission) in advancing sustainability. However, the recommendations also present a model for assessing energy projects that fails to meet the needs and interests of Canadians. Of greatest concern is the Panel’s recommendation that the new law requires the federal Cabinet to make a political decision on whether or not a major energy project is in the national interest before an assessment is even commenced. This recommendation, ostensibly, aims to address the uncertainty of ultimate government approval after significant costs related to project assessment have already been incurred. Unfortunately, the Panel’s recommended solution puts the cart before the horse and is inconsistent with the purpose of environmental assessment. The federal government cannot be reasonably expected to know whether a proposed project is in the national interest if evidence about the project’s impacts on sustainability has not yet been presented or tested. Other Panel recommendations are more helpful.  Creating a federal energy strategy and the establishing an independent Canadian Energy Information Agency would provide the federal government with important tools for planning the transition to renewable energy and account for greenhouse gas emissions from energy projects and activities. While much of the Report focused on assessments of future pipeline projects, the Panel astutely pointed out that the role of the national energy regulator must conform to Canada’s future energy landscapes. The Panel expects fewer pipeline projects in the future, “while the generation, transmission, and storage of electricity from a wider variety of sources will necessitate a modern transmission network that enables and captures the full value of renewables.” The Panel’s recommendations regarding project assessments are, to say the least, unconvincing; however, the Report does compel us to envision a regulator for the future. While the recommendations regarding project assessments should be dismissed, the recommendations regarding the collection of energy-related information (including GHG emissions) and planning for a renewable energy future should be taken seriously and built upon.

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Fixing the National Energy Board
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Fixing the National Energy Board

[caption id="attachment_22697" align="alignleft" width="150"]Image of Stephen Hazell Stephen Hazell
Director of Conservation
and General Counsel[/caption] On February 22, Stephen Hazell of Nature Canada participated in a dialogue with industry, indigenous people, and other civil society groups and the federally appointed Expert Panel on modernizing the National Energy Board (NEB).Image of Environmental Laws Button Here are Nature Canada’s key messages at the dialogue held in Gatineau Quebec:

  • Ecological sustainability should be a key element of the legislated “public interest” test that the NEB uses in deciding whether or not to approve energy projects;
  • NEB should be directed to implement federal policies to reduce greenhouse gas emissions and support Canada’s transition to a sustainable low-carbon future in all of its regulatory work;
  • NEB should not be doing environmental assessments for proposed pipelines. Independent panels are needed to assess the sustainability of pipeline projects—including any marine tanker traffic or terminals associated with those projects.  The NEB has completely lost the confidence of Canadians to assess the environmental effects of pipelines;
  • NEB may still have a role to play to ensure the safety and security of existing (and any future) pipelines. As the Canadian economy decarbonizes, NEB’s focus will likely shift to overseeing the winding down of the national pipeline network, ensuring that aging pipelines still operating remain safe and secure; andImage of Humpback Whale
  • Public participation in NEB hearings must be revitalized. Rights of intervenors to cross-examine proponent witnesses must be restored, and all interested Canadians should be afforded some opportunity to participate.
You can still have your say on the future of the National Energy Board. The Expert Panel is continuing to hear presentations, conduct dialogue sessions and hold open houses, all open to the public, until the end of March, at these locations:
  • Fort St. John, British Columbia– March 1–2, 2017
  • Edmonton, Alberta– March 7–8, 2017
  • Iqaluit, Nunavut– March 14–15, 2017
  • Saint John, New Brunswick– March, 21–22, 2017
  • Montreal, Quebec– March 28–29, 2017
Registration is required for each session and can be done on the panel’s website. The Expert Panel is to report to the federal Natural Resources Minister by May 15. Have your say in reforming the National Energy Board!
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Here is your chance to fix the National Energy Board!
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Here is your chance to fix the National Energy Board!

[caption id="attachment_22697" align="alignleft" width="150"]Image of Stephen Hazell Stephen Hazell
Director of Conservation
and General Counsel[/caption] The National Energy Board (NEB) is broken.  The NEB should be guiding Canada’s transition to a sustainable low-carbon future as it considers new major pipelines and offshore oil and gas projects. Unfortunately, recent experience with the Trans Mountain, Northern Gateway and Energy East pipeline/tanker projects shows that the NEB does not understand the imperatives for Canada to reduce greenhouse gas emissions and prevent further biodiversity losses.  Nature Canada’s view is that independent panels should review the environmental effects of pipelines and not the oil-industry dominated NEB. An expert panel to recommend measures to modernize the NEB was established by Natural Resources Minister Jim Carr in November and will report back by May 15.

The expert panel will visit the following cities to hear the views of Canadians as part of its engagement activities:

  • Saskatoon, Saskatchewan – January 25–26, 2017
  • Toronto, Ontario – February 1–2, 2017
  • Vancouver, British Columbia – February 8–9, 2017
  • Winnipeg, Manitoba – February 15–16, 2017
  • Ottawa, Ontario – February 22–23, 2017
  • Fort St. John, British Columbia – March 1–2, 2017
  • Edmonton, Alberta – March 7–8, 2017
  • Iqaluit, Nunavut – March 14–15, 2017
  • Saint John, New Brunswick – March, 21–22, 2017
  • Montreal, Quebec – March 28–29, 2017
Three types of sessions will be open to the public on the first day in each city: presentations, dialogue sessions and open houses. On the second day in each location, the panel will meet with Indigenous peoples to discuss the needs and interests of their communities. Sessions on both days are open to anyone with an interest in the modernization of the NEB. Registration is required for each session and can be done on the panel’s website. Have your say in reforming the National Energy Board!
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MP Duncan introduces private member’s bill to get the job done on oil-rail safety
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MP Duncan introduces private member’s bill to get the job done on oil-rail safety

[caption id="attachment_28942" align="alignleft" width="150"]Image of Adam Bond Adam Bond, Articling Student[/caption] On September 27, Linda Duncan, MP for Edmonton Strathcona, introduced Bill C-304, the Transportation of Dangerous Goods by Rail Act (TDGRA), into the House of Commons. This Bill aims to narrow the regulatory gap between the shipment of oil by pipeline and rail by creating additional requirements for railway operating certificates issued to shippers of dangerous goods. Nature Canada and Canadians generally have serious concerns about the legitimacy and fairness of National Energy Board reviews of proposed oil pipelines; even so, oil pipeline regulation is light years ahead of regulation of transportation of oil by rail. The use of rail to transport oil (mainly from the oil sands and western shales) has increased significantly in since 2009 with a decline in 2016. With suppressed production due to low oil prices and the Fort McMurray fire, pipeline capacity has been freed up and dependence on rail assuaged. With the cost of shipping a barrel of oil by pipeline at about half to one-third the cost of transporting by rail, shippers are inclined to choose pipelines over rail. TDGRA is not a sanctioning of oil pipelines or an argument in support of building new pipelines. After all, none of the proposed pipelines have offered any guarantees that transportation of oil by pipeliImage of wetlandsne will correspond to a reduction in transportation by rail. While pipelines may be the less-expensive means of moving oil, when the bitumen oil projects in Alberta begin to hit capacity again pipelines and railways may run oil across the country as “partners in crime”. Regardless of the relative risk of oil spills by pipeline or rail, the reality is that oil is transported in Canada today by both means, with significantly divergent standards of environmental review and oversight. TEDGRA is a legislative measure that could easily elevate the standard of review and oversight of the transportation of oil by rail to something resembling the standard of review and oversight applied to pipelines. Linda Duncan’s Bill is not about whether pipeline or rail is the safer method of oil transport; this Bill is about a country where rivers, wetlands, grasslands, cities, towns, and communities are exposed to the risk of a Lac-Mégantic-like derailment every day. The government has a responsibility to do what it can to protect its citizens from these risks, and so far it has done little. TDGRA is a simple and effective measure to get the job done.

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Nature Canada fighting for the Best Interest of the Bay of Fundy
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Nature Canada fighting for the Best Interest of the Bay of Fundy

[caption id="attachment_28942" align="alignleft" width="150"]Image of Adam Bond Adam Bond, Articling Student[/caption] At the Trade and Convention Centre on the Saint John Harbour, a crowd of about sixty pipeline supporters gathered around a pipeline segment on a trailer behind a black Ford F-150. Across the large pipe was written “We support #EnergyEast”. Inside, people (mostly in suits) chatted politely while the NEB team provided directions, answered questions, and worked very hard to be as helpful as possible. The Panel entered, the room rose to their feet. The Panel sat, the room followed. The Proponents presented their project and Nature Canada was invited as the first intervenor to make their submissions to the NEB Panel reviewing the Energy East application. I arrived in Saint John several days before the Panel Sessions to do some media and organize with other intervenors that Nature Canada is working with on Energy East. A local expert on birds, Jim Wilson, offered to take me on a morning tour of the Bay of Fundy coast just south of Saint John. A thick fog had settled on the region the morning Jim picked me up for our drive down the coast. Though visibility was reduced, Jim managed to point out a number of different birds as we stopped at various fishing communities and he spoke passionately about their characteristics, migration patterns, and special facts of each bird.  You can see a video of Jim here. Jim, it turns out, is more than an expert on birds. He is also an expert on New Brunswick. As a retired businessman and accountant, he has an advanced understanding of the economic difficulties facing the province and the real impact those difficulties have on individuals and families. Jim is clearly concerned about the potential consequences Energy East may have on the beautiful natural environments and wildlife in the Bay of Fundy, but he is also concerned about the impact of a struggling economy on New Brunswickers. To understand the reception of Energy East in this province, it is important to understand the dynamic between the province’s love for nature and the desperation for jobs.Image of a pipeline Saint John is a city with markings of better times. Large, once beautiful homes left uncared for and dilapidated. City parks overgrown with weeds and rusted structures. A considerable city centre of historic and commercial buildings, many empty due to the lack of business. There remain many beautiful places, such as the Irving Nature Park, Rockwood Park and its Cherry Brook Zoo, golf course and beach at Lily Lake. But while the small city is littered with hidden treasures, those assets are showing their age. According to Jim, New Brunswick is a province filled with opportunity, and entrepreneurial people can make a good living for themselves. There is something, however, holding the province back. For many, it seems, Energy East may be part of the answer to their problems. Starting Monday (August 8th), and continuing throughout the NEB Energy East review process over the next year, Nature Canada will do everything it can to help determine whether the proposed project is part of the answer or part of the problem for the people and nature of New Brunswick. While the Proponents make grand claims about the economic benefits, there are real risks that this project could reinforce the old adage to be careful what you wish for. At the Convention Centre in Saint John on Monday morning, Lisa Mitchell, a staff lawyer with East Coast Environmental Law and counsel representing Nature Canada and Nature NB at the NEB Energy East review process, delivered our submissions. We are neither in support of, or in opposition to, the project. We do have concerns, we do have questions, and we will work to ensure the most rigorous and reliable processes possible will lead to nature being at the forefront of deliberations.

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Nature Canada to make first submissions to NEB Energy East review Panel 
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Nature Canada to make first submissions to NEB Energy East review Panel 

[caption id="attachment_26979" align="alignleft" width="150"]Image of Adam Bond Adam Bond, Articling Student[/caption] Nature Canada will be the first Intervenor in the country to address the National Energy Board (NEB) Panel reviewing TransCanada’s application to build the Energy East Pipeline. In preparation for the NEB Panel Sessions in Saint John, New Brunswick (NB) starting Monday August 8th, I have travelled to the Bay of Fundy. First thing Monday morning, Nature Canada will lead the way in making submissions to the NEB in order to ensure that proponents’ evidence is rigorously tested and the Panel is provided with the facts about the risks the pipeline poses to nature. Immediately after arriving in Saint John, it was clear that the city is unique. New Brunswick is a province dominated by impressive landscapes. Driving south on Highway 1 there is a seemingly endless expanse of mountainous forests and meandering rivers. Dotted along the highway are small communities of some of the kindest people you will ever encounter. Arriving in Saint John, the landscape takes a significant change. The city stretches out around a massive port and is joined across the Saint John River by a network of highways and bridges. Mills, shops and urban sprawl break the natural landscape almost instantly on the drive down Highway 1. The expanse of nature pauses in Saint John for the small town and its city of industry. [caption id="attachment_28597" align="alignright" width="350"]Image of Saint John River Saint John River in Fredericton, NB[/caption] This morning, I had an early meeting at the Irving Nature Park to walk through the Saint’s Rest Important Bird and Biodiversity Area (IBA). Nature Canada is working with Nature NB to coordinate our submissions to the NEB Energy East Panel, and we invited some journalists to take a walk through the IBA and discuss the Energy East Pipeline. The low tide at Irving Nature Park exposed a 28 foot cliff-face, mostly still covered in seaweed, and an enormous sandy beach. Salt Marshes surrounded a boardwalk and a thick fog cloaked all but the shoreline of island IBAs stretching into the Bay of Fundy. An oil spill from a super tanker on the shipping route a few kilometres from Saint’s Rest could decimate the salt marshes, wide sandy beaches and coastal forests all along the Fundy coast. The impact on migratory birds, fish, and marine mammals would be devastating. Dozens of vehicles were parked at the various parking spots near Saint’s Rest, with many friendly East Coasters waving and smiling good morning as they started on their bike rides, hikes, or dog walking. There can be no debate that New Brunswick is Irving country, but there can also be no doubt that this country loves its nature. Balancing the benefits and risks of Energy East will not be an easy task for the NEB in Saint John.

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Best Opportunity in a Generation for Environmental Law Reform
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Best Opportunity in a Generation for Environmental Law Reform

[caption id="attachment_22697" align="alignleft" width="150"]Image of Stephen Hazell Stephen Hazell
Director of Conservation
and General Counsel[/caption] Today is a good day for nature. Today, the federal government announced its decision to establish two separate expert panels to review federal environmental assessment and National Energy Board laws, and to refer the Fisheries Act and Navigation Protection Act to the respective House of Commons committees for review. This represents the best opportunity in a generation for reform of federal laws that govern development of natural resources. Today, the government released draft terms of reference for the two expert panels, providing a 30-day period for comment. Following the comment period, the two expert panels would carry out their public review with a broad mandate and report back to the government by the end of January 2017.  The parliamentary committees would commence work in September when the House of Commons reconvenes, and would have narrower mandates focused on reversing the changes to these laws legislated by the previous Conservative government. These reviews also represent a good opportunity to rebuild public trust in environmental assessment and institutions, which public trust has suffered greatly in recent years given the approaches to pipeline development taken in recent years by the National Energy Board. After receiving reports from the four review bodies, the government would bring forward proposals for legislation, regulations and policies in 2017. The decision today shows that our members voices are heard and Nature Canada is very pleased that the government is working on strengthening Canada's environmental laws. Nature Canada is also pleased that the government has revived the environmental assessment advisory committee (a multi stakeholder body with representatives of environmental, industry and indigenous organizations) which provided consensus-based advice to the government on environmental assessment issues. The advisory committee was established in 1992 and worked until 2008 when the previous Conservative government discontinued the operations of the advisory committee. The government’s decisions provide opportunities for better laws to conserve nature and promote sustainability; they will not necessarily lead to the outcomes we want for nature. Whether we get better environmental laws will depend on Nature Canada’s members and supporters together with naturalists, environmentalists and other Canadians to let these review bodies know what is needed. Catch the latest news on this environmental law reform by checking out CBC and iPolitics.

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NEB Jumps the Gun with Incomplete Energy East Application
Common Terns (Sterna hirundo) at Pelee Point, Point Pelee National Park, Onatrio, Canada. Canada's most southern tip, located just meters below the 42 nd. parallel.
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NEB Jumps the Gun with Incomplete Energy East Application

[caption id="attachment_22697" align="alignleft" width="150"]Image of Stephen Hazell Stephen Hazell
Director of Conservation
and General Counsel[/caption] Nature Canada is deeply troubled that the National Energy Board is launching hearings for the proposed Energy East pipeline despite huge information gaps in Trans Canada’s application and without having made a decision on interveners at the hearings. Jumping the gun with an incomplete application and without providing Canadians an opportunity to comment reflects badly on the Liberal government’s commitment to restore public confidence in the NEB’s environmental assessment process. Nature Canada maintains that the Energy East application is seriously deficient in three areas

  • No information on how and where the pipeline will cross the Ottawa River, and incomplete information on other river crossings;Image of a pipeline
  • No information on the potential impacts of oil spills on important ecosystems during the later stages of the project.
  • Insufficient information on how spills of different kinds of oil in various environments will be managed, the impacts of oil spills on future “locations of interest”, the impacts of various crude oil spills on poorly understood environments, or the effectiveness of spill response methods when spills do occur.
Nature Canada also argues that it is unfair that the hearings are starting without interveners in place. Nature Canada applied for intervener status following NEB rules 16 months ago and the NEB still is unable to say whether or not our organization qualifies—and Nature Canada was an active intervener in previous pipeline hearings such Trans Mountain and Northern Gateway. In the upcoming hearings, Nature Canada and Nature NB will be focusing on the risks of tanker oil spills in the Bay of Fundy  and adverse impacts on birds and other wildlife, and Important Bird Areas.
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National Energy Board Launches Energy East hearings with incomplete application
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National Energy Board Launches Energy East hearings with incomplete application

For Immediate Release Ottawa, ON (June 16, 2016)― Nature Canada does not support the National Energy Board’s decision today to launch the hearings for Energy East because of the huge information gaps in Trans Canada’s application and a lack of a decision to include interveners at the hearings. “Making this decision to launch the hearings without providing Canadians an opportunity to comment reflects badly on the NEB’s environmental assessment process” says Stephen Hazell, Director of Conservation and General Counsel at Nature Canada.  “The Energy East application is seriously deficient in at least three important areas.” These include:

  • No information on how and where the pipeline will cross the Ottawa River.
  • No information on the potential impacts of oil spills on important ecosystems during the later stages of the project. Only eight “locations of interest” have been identified to evaluate the potential impacts of an oil spill. The criteria used to identify these locations of interest do not take into account the state of the ecosystems in 30 to 40 years when the aged pipeline is far more likely to spill and the ecosystems have endured the stresses of many more years of climate change.
  • Insufficient information on how oil spills of different kinds of oil in various environments will be managed, the impacts of oil spills on future “locations of interest”, the impacts of various crude oil spills on poorly understood environments, or the effectiveness of spill response methods when spills do occur. TransCanada stated that it will not determine if specific geographical response plans will be required for a given area until a detailed design of the pipeline is completed.
“In addition, it is hugely unfair that the hearings are starting without interveners in place” adds Hazell.  “Nature Canada applied for intervener status following NEB rules 16 months ago and the NEB is still unable to tell us whether or not our organization qualifies.” - 30 - To arrange an interview, please contact: Janet Weichel McKenzie 613-808-4642 or jweichelmckenze@gmail.com About Nature Canada Nature Canada is the oldest national nature conservation charity in Canada. Over the past 75 years, Nature Canada has helped protect over 63 million acres of parks and wildlife areas in Canada and countless species that depend on this habitat. Today, Nature Canada represents a network of more than 45,000 members and supporters and more than 350 nature organizations across the country, with affiliates in every province. Nature Canada focuses on effecting change on issues of national significance including bird conservation,  citizen science initiatives, urban nature initiatives, building a national network of conservation organizations, building a network of volunteers to care for critical natural habitat sites across Canada and being a voice for nature at the federal level.  

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