No Easy Way Out: BC Utilities Commission Issues Final Report Following Site C Inquiry Process

Selina Lee-AndersenConnor Bildfell

During BC’s provincial election campaign in May 2017, the NDP promised to send the Site C project for review by the BC Utilities Commission (BCUC) if it was elected. Site C, a multi-billion dollar project to construct a third dam and generating station on the Peace River in northeast BC, had received approval from the previous BC Liberal government to begin construction in December 2014. After taking the reins of provincial government in July 2018, newly sworn in Premier John Horgan made good on his party’s promise and the government issued an Order in Council (OIC) requesting that BCUC undertake an inquiry into certain aspects of Site C.  On November 1, 2017, BCUC’s four-member review panel (the Panel) delivered its final Site C Inquiry Report (the Final Report) to the government. Continue Reading

Supreme Court Dismisses Aboriginal Spiritual Rights Charter Claim

Bryn GrayStephanie AxmannBrandon Kain

The Supreme Court of Canada (SCC) released a decision earlier today dismissing a novel Aboriginal freedom of religion Charter claim that was raised in opposition to a ski resort development in British Columbia: Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54 (Ktunaxa).  This is a significant case as it is the first time the SCC has been asked to consider an Aboriginal spiritual rights claim and the protections that may be afforded to it under s. 2(a) of the Charter in addition to s. 35 of the Constitution Act, 1982. McCarthy Tétrault LLP (Neil Finkelstein, Brandon Kain, and Bryn Gray) intervened in this case on behalf of the Canadian Chamber of Commerce.

Ktunaxa limits the scope of potential Aboriginal spiritual rights claims that may be protected under s. 2(a) of the Charter, which is significant given that there are Aboriginal spiritual rights claims across Canada that are attached to vast tracts of land.  The decision also importantly confirms once again that Aboriginal groups do not have a veto over projects and that developments can proceed without consent if adequate consultation has occurred, except in limited cases of established rights, such as established Aboriginal title.  Continue Reading

The Role of Regulatory Tribunals in Aboriginal Consultation – The Key Takeaways from Hamlet of Clyde River and Chippewas of the Thames

Stephanie AxmannBryn GrayLjiljana StanicDaniel Goudge

On July 26, 2017, the Supreme Court of Canada (SCC) released its decisions in Hamlet of Clyde River, et al. v. Petroleum Geo-Services Inc. (PGS), et al.[1] (Clyde River) and Chippewas of the Thames First Nation v. Enbridge Pipelines Inc., et al.[2] (Chippewas) (together, the Decisions). The Decisions concern the role of regulatory boards in fulfilling the Crown’s duty to consult, in the context of two separate project approval decisions of the National Energy Board (NEB). Our discussion of the facts of each case and initial analysis of the Decisions is available here.

The Decisions were released at a critical juncture in the Federal Government’s ongoing review of the NEB and other environmental and regulatory processes, and may provide timely guidance regarding the Federal Government’s proposed reforms regarding the participation of Indigenous peoples.

In the Decisions, the SCC confirmed its finding from Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council[3] (Rio Tinto) that the Crown may rely on a regulatory agency to partially or completely fulfill its duty to consult, provided that the agency has sufficient statutory powers.  The SCC reached different conclusions as to the adequacy of the NEB’s consultation efforts in Clyde River and Chippewas but concluded that the current NEB process can be relied upon for consultation and that it is in principle adequate to discharge the duty to consult. In so finding, the SCC provided clarity on certain notable aspects of the Crown’s duty to consult. This article provides our commentary on the most significant findings and their implications. Continue Reading

In Pursuit of Sustainable Communities: Survey finds that Indigenous Participation is Driving Clean Energy Growth in Canada

Selina Lee-Andersen

A pioneering survey has found that Indigenous participation in Canada’s clean energy economy has grown rapidly over the past 20 years, in all regions of the country. Lumos Clean Energy Advisors (Lumos), an advisor to First Nations, Métis and Inuit communities, undertook a review of national research and drew on the company’s database of clean energy projects. In particular, Lumos looked at 152 medium to large-scale solar, wind, hydro and bio-energy clean energy projects now in operation (medium to large projects are categorized as renewable energy projects generating one (1) megawatt of electricity at full operating capacity). The resulting report, Powering Reconciliation: A Survey of Indigenous Participation in Canada’s Growing Clean Energy Economy, highlights the importance of federal and, particularly, provincial/territorial government policies in the areas of energy, climate change and economic development to the rise of Indigenous participation in the clean energy sector. Continue Reading

Changing Tack: BC NDP Accelerates Increase in Carbon Tax and Moves Away from Revenue Neutrality

Selina Lee-Andersen

BC’s recently sworn-in New Democratic Party (NDP) government presented its first provincial budget on September 11, 2017. Among the policy measures announced were changes to the BC carbon tax. In particular, the Budget 2017 Update (2017/18 – 2019/20) provides for the following:

  • As of April 1, 2018, the carbon tax will increase by $5 per tonne of carbon dioxide equivalent (CO2e) per year until it reaches the federal target carbon price of $50 on April 1, 2021 (one year before Ottawa’s 2022 deadline). BC’s carbon tax is currently set at $30 per tonne of CO2e.
  • Part 2 of the Carbon Tax Act has been repealed, meaning that the requirement for the provincial Minister of Finance to prepare the Carbon Tax Report and Plan will no longer apply after September 11, 2017. In addition, this means that the Carbon Tax Act will no longer require that revenue measures be introduced to offset carbon tax revenues. This will allow the government to spend carbon tax revenues on emission reduction measures or other green initiatives, rather than returning carbon tax revenues to taxpayers.

Continue Reading

NAFTA Renegotiations: Will changes to environmental and labour standards be “very difficult”?

John BoscariolClaire Seaborn

On August 27, President Trump tweeted that both Canada and Mexico were being “very difficult” during the ongoing renegotiations of the North American Free Trade Agreement (“NAFTA”). Without question the three countries’ trade representatives have a lot areas to cover in the negotiations, but environmental and labour standards are two areas that have been taking a back seat. This begs the question – what changes can we expect see in NAFTA 2 on environmental and labour standards? Continue Reading

Taking on the Political Hot Potato of Pipelines: BC’s Attorney General Granted Intervenor Status in Federal Court of Appeal Proceeding Challenging Trans Mountain Pipeline Approvals

Selina Lee-AndersenConnor Bildfell

The proposed Trans Mountain Expansion Project (the Project) involves a $7.4-billion expansion of the Kinder Morgan pipeline stretching from Edmonton to Burnaby, as well as the construction of new works such as pump stations and tanks and the expansion of an existing marine terminal. In December 2016, the Project received federal government approval, after the National Energy Board (NEB) recommended in May 2016 that the Project should proceed, subject to the satisfaction of 157 conditions. Under the Constitution Act of 1867, the regulation of international and inter-provincial transportation (which includes pipelines) falls within the exclusive jurisdiction of the federal government. Continue Reading

Indigenous and Northern Affairs Canada (INAC) portfolio to be split, in initial step towards ending the Indian Act and accelerating the move to self-government

Stephanie AxmannBryn Gray

On August 28, 2017, the Federal Government announced a cabinet shuffle that includes plans to split the current Ministry of Indigenous and Northern Affairs Canada (INAC) into two distinct Departments: (1) Crown-Indigenous Relations and Northern Affairs and (2) Indigenous Services. Continue Reading

Failure to Disclose: In Finding Negligent Misrepresentation, BC Supreme Court Holds that Potential Contamination on a Property Gives Rise to Stigma

Selina Lee-AndersenElizabeth SteelePaul R. Cassidy

In a recent decision of the BC Supreme Court (the Court), the purchasers of a residential property in Victoria were awarded damages when the Court found that the seller made negligent misrepresentations in the property disclosure statement (PDS) regarding the possible migration of contaminants onto the property. In their claim, the plaintiffs alleged that the defendant was liable for damages for fraudulent misrepresentation, negligent misrepresentation or breach of contract. While the plaintiffs were unable to meet the test for fraudulent misrepresentation (the Court found no intent by the seller to deceive the purchasers), the Court said that a misrepresentation in a PDS can give rise to a claim for damages for negligent misrepresentation. The Court’s judgment in Ban v. Keleher (2017 BCSC 1132, 30 June 2017) confirms that a much higher standard of evidence is required in order to make out a claim of fraudulent as opposed to negligent misrepresentation, which means that what might seem to be fraudulent based on a common sense interpretation is not necessarily what will be found in court. In assessing the damages payable to the plaintiffs, the Court found that the potential presence of contamination and ongoing testing for contaminants on the property created a stigma in respect of the property and as such, the stigma negatively affected the fair market value (FMV) of the property on the date of sale in May 2013. The Court awarded damages in the amount of $95,000, which took into account a reduction in purchase price (as the plaintiffs paid more for the property than it was worth) and a discount for stigma, as well as the loss of enjoyment and use of the property. Continue Reading

Cap & Trade 2.0: California Fine Tunes and Extends Cap & Trade Program to 2030

Selina Lee-Andersen

On July 17, 2017, the California legislature passed legislation to extend the state’s cap-and-trade program to 2030 (the program was originally set to expire in 2020). Bill AB 398 received broad bi-partisan support and was passed with a two-thirds majority vote, which is the threshold required to pass tax laws in California. With a super-majority vote, California’s cap-and-trade program will be harder to challenge in court, thus providing policy certainty to market participants and partner jurisdictions including Québec and Ontario. AB 398 was accompanied by two bills: (1) AB 617, which seeks to address local air quality concerns by requiring increased monitoring, mandating upgrades of outdated equipment and technology, and imposing stricter penalties for noncompliance with regulations; and (2) ACA 1, which establishes the Greenhouse Gas Reduction Fund, into which all revenue from the auction or sale of allowances will be deposited (a 2/3 vote of each house will be required to appropriate the funds). The passage of AB 617 was key to winning over the support of key environmental groups. Continue Reading