Stepping Up to the Plate: Canada Releases Draft Legislation for Proposed Federal “Backstop” Carbon Pricing System

Selina Lee-AndersenConnor Bildfell

On January 15, 2018, Environment and Climate Change Canada (ECCC) released draft legislative proposals relating to the proposed federal “backstop” system (Backstop) for establishing, regulating, and enforcing a pan-Canadian price on carbon, as well as the proposed regulatory framework for the output-based pricing system, which is designed to minimize competitiveness risks for emissions-intensive, trade-exposed industrial facilities. The proposed Backstop will apply in provinces and territories that request it and in those that do not have a carbon pricing system in place that meets the federal standard by January 1, 2019. Canada’s overarching objective in establishing this regulatory framework is to ensure a price is placed on carbon across Canada, thereby encouraging a low-carbon economy focused on sustainable development. For industry participants, the impact of the proposals is potentially significant, as they set the baseline expectations for carbon pricing regimes across Canada. Continue Reading

First Nation ordered to produce private agreements with industry – update on Blueberry River First Nations Treaty 8 infringement proceedings

Stephanie AxmannPaul R. Cassidy

In 2015, Blueberry River First Nations (BRFN) commenced a significant treaty infringement claim against the Province of British Columbia. BRFN claims that the Province is in breach of its obligations under Treaty 8 due to the cumulative impacts of development in BRFN’s traditional territory, which has resulted in its members being unable to exercise their traditional practices as intended under the treaty.

The trial is scheduled to commence in BC Supreme Court on March 26, 2018, for over 90 days. Continue Reading

Taking Stock: A Recap of 2017 Climate Change Policy Initiatives and What to Expect in 2018

Selina Lee-Andersen

As the Paris Agreement entered into force in November 2016, it marked the start of a renaissance period for climate change policy, one that represents a global paradigm shift towards a lower-carbon economy. Despite the US announcement in June 2017 that it would withdraw from the Paris Agreement, international efforts to reduce GHG emissions continue full steam ahead. COP 23 was held in Bonn, Germany in November 2017, where international climate negotiations focused on implementation of the Paris Agreement. At the end of COP 23, member parties had adopted 31 decisions dealing with a range of issues from pre-2020 implementation activities and adaptation funding, to gender action and capacity building in developing countries. Continue Reading

SCC to consider the Crown’s duty to consult in the legislative process; will hear appeal of Courtoreille v. Canada, 2016 FCA 311

Stephanie AxmannBryn Gray

This coming Monday, January 15th, the Supreme Court of Canada (SCC) will hear the appeal of the Mikisew Cree First Nation from the Federal Court of Appeal’s (FCA’s) decision in Courtoreille v. Canada, a significant duty to consult case which we wrote about in 2017. Continue Reading

First Nation of Nacho Nyak Dun v. Yukon: SCC addresses the role of courts in resolving modern treaty disputes

Stephanie AxmannConnor Bildfell

On December 1, 2017, the Supreme Court of Canada (SCC) issued its decision in First Nation of Nacho Nyak Dun v. Yukon,[i] concerning a contested land use planning decision of the Yukon Government under the Yukon Umbrella Final Agreement. The case is one of only a few by the SCC to substantively address modern treaties,[ii] and thus provides helpful commentary with respect to the principles governing the interpretation of modern treaties, the role of the courts in resolving modern treaty disputes, and the scope of the appropriate remedy where government has breached its treaty obligations. Continue Reading

Paving the Way for Lower Carbon Fuels: Federal Government Releases Regulatory Framework for Clean Fuel Standard

Selina Lee-Andersen

In November 2016, the federal government announced that it would commence development of a performance-based clean fuel standard (CFS) that would incent the use of a broad range of low carbon fuels, energy sources and technologies. The objective of the CFS is to achieve 30 megatonnes (Mt) of annual reductions in greenhouse gas (GHG) emissions by 2030, as part of efforts to achieve Canada’s overall GHG emissions reduction target of 30% below 2005 levels by 2030. As announced earlier by the federal government, the proposed CFS would establish lifecycle carbon intensity requirements separately for liquid, gaseous and solid fuels, and would go beyond transportation fuels to include those used in industry and buildings. The approach would not differentiate between crude oil types that are produced in Canada or imported.

Stakeholder consultations on the proposed CFS were held throughout 2017; in November 2017, Environment and Climate Change Canada (ECCC) released a report prepared by the International Institute on Sustainable Development, which summarizes stakeholder comments received in response to the federal government’s discussion paper on the CFS that was released in February 2017. On December 13, 2017, ECCC published a regulatory framework on the clean fuel standard. The framework outlines the key design elements for the CFS regulation, including its scope, regulated parties, carbon intensity approach, timing, and potential compliance options such as credit trading.

As noted above, the CFS will use a lifecycle approach to set carbon intensity values and requirements, accounting for the amount of GHG emitted to produce a unit of energy. The proposed lifecycle approach will assess GHG emissions from all stages in a product’s life, from cradle to grave (i.e. from raw material extraction through materials processing, manufacture, distribution, use, repair and maintenance, and disposal or recycling where applicable). ECCC expects that the CFS may lead to changes in crop demand and land management practices that impact GHG emissions, which will be included. However, indirect GHG emissions that may result from the clean fuel standard will not be considered in the design, at least initially.

The proposed CFS regulatory framework covers the following elements: Continue Reading

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