Occasional Papers: 50-59

A Comparative Analysis of Public Participation in the Regulation of Hydraulic Fracturing in the Bakken

by Judy Stewart, Alastair Lucas & Giorilyn Bruno, 2017
63 pp. Occasional Paper #59. $20.00 (softcover)

This paper provides a comparative analysis of how the regulatory regimes overlying the Bakken Shale Formation (North Dakota, Montana, Saskatchewan and Manitoba) provide for public participation in government decision-making processes for use of hydraulic fracturing technology. Statutory provisions for public participation are often associated with natural justice and the common law duty of “procedural fairness” when administering the law. A brief description of the Bakken Shale Formation and an overview of public concerns about potential impacts of hydraulic fracturing on the environment, human health, and communities are provided for context. This comparative analysis briefly explores some of the similarities, differences, strengths, and weaknesses of statutory provisions for public consultation or participation in the four jurisdictions, examining three policy development and regulatory decision-making processes regarding fracking: 1) policy development and rule-making; 2) licensing and operational decision-making processes; and 3) ensuring compliance with license or approval conditions

Linking the Alberta Emissions Trading Scheme: Difficult but Possible 

by Rolandas Vaiciulis, 2017
36 pp. Occasional Paper #58. $20.00 (softcover)

This paper focuses on the important question: “How can the Alberta Emissions Trading Schemes achieve effective linkages with the Quebec and Ontario schemes and potentially other provinces and states?” Linking the Alberta ETS with the Quebec and Ontario ETSs could increase overall cost efficiency and provide for increased national cooperation on climate change and potentially the development of a national energy strategy, but at the same time allow provincial governments to preserve their autonomy. In addition, linking provincial schemes might enhance the international reputation of Alberta and Canada regarding action on climate change. The paper examines system design features of each scheme, then considers how each design feature is addressed by the potential linking of partners in Alberta, Quebec and Ontario. Potential incompatibilities among different provincial emissions trading schemes are analyzed, and adjustments to facilitate linkages for a more efficient broader based emissions trading system are considered.

Climate Change and Water: Law and Policy Options for Alberta 

by Arlene J. Kwasniak, 2017
84 pp. Occasional Paper #57. $20.00 (softcover)

This research project created an innovative and important CIRL Occasional Paper on climate change and water that examines law and policy reform options for Alberta. The publication focuses on Alberta, and provides legal and policy information that could be useful in other provinces and territories. The overall objective of the paper is to provide options geared towards the Alberta government becoming a climate change leader in developing law and policy frameworks that prepare and enable the provincial and federal governments to address expected climate change impacts in Alberta. The publication is based on the assumption that for Alberta to become a climate change leader, the provincial government will pursue both emissions reductions to limit climate change, and pursue law and policy review  and reform to mitigate the impacts from climate change.

The Peel Watershed Case: Implications for Aboriginal Consultation and Land Use Planning in Alberta

by Sara L. Jaremko, 2017
66 pp. Occasional Paper #56. $20.00 (softcover)

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 court decision. 

Failed Experiments: An Empirical Assessment of Adaptive Management in Alberta's Energy Resources Sector

By Martin Olszynski, 2017
100 pp. Occasional Paper #55

Much has been written about adaptive management in the past decade. Broadly understood as an iterative approach to environmental problems wherein management actions are designed as experiments with a view towards learning and improvement, adaptive management’s implementation in Canada, as elsewhere, has been described predominantly as lacking in rigour – what leading U.S. scholars have termed ‘a/m-lite’.

This paper contributes to this scholarship by providing an assessment of its implementation and effectiveness in Canada’s energy resources sector and specifically within the province of Alberta, home to Canada’s controversial oil sands. Using freedom of information processes, publicly available documents, and communication with the relevant regulator, the author collected the environmental impact statements, statutory approvals and required follow-up reports for thirteen energy projects (coalmines, oil sands mines, and in situ oil sands) wherein the proponent proposed adaptive management for at least one environmental issue or problem. Content analysis of these documents was conducted to determine the conception, implementation, and effectiveness of adaptive management with respect to each project throughout the regulatory cycle. The results confirm long-standing concerns about the implementation of adaptive management: varying conceptions, including as a routine strategy that guarantees positive environmental outcomes; insufficient attention being paid to experimental design; and no or incomplete implementation. Bearing in mind the ubiquity of adaptive management in energy and natural resources development, the paper concludes with recommendations for law and policy reform. The focus is on Alberta and Canada but the discussion should be relevant to other jurisdictions where adaptive management is prominent, such as the United States and Australia.

This paper was published in the UBC Law Review, Volume 50, Issue 3 (August 2017).

A Critical Exploration of the South Saskatchewan Regional Plan in Alberta

by Sara L. Jaremko, 2016
57 pp. Occasional Paper #54. $20.00 (softcover)

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.

Alberta First Nations Consultation & Accommodation Handbook –  Updated to 2016

by David Laidlaw, 2016
137 pp. Occasional Paper #53. $25 (softcover)

This 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.

Bill C-38 and the Evolution of the National Energy Board: The Changing Role of the National Energy Board from 1959 to 2015

by Sonya Savage, 2016
65 pp. Occasional Paper #52. $20.00 (softcover)

This 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.

Regulating Hydraulic Fracturing: Regulatory Recourse for Subsurface Communication

by Kimberly Howard, 2015
46 pp. Occasional Paper #51. $20.00 (softcover)

This 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.

Linking Emissions Trading Schemes: Analysis and Recommendations for EU-Australia and Quebec-California Linkages

by Rolandas Vaiciulis, 2015
63 pp. Occasional Paper #50. $20.00 (softcover)

Since 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.