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Not Just a Pipe Dream: Indigenous, Provincial, and Environmental Considerations in Successful Canadian Pipeline Projects

Nicole Spadotto is a first-year student at the McGill University Faculty of Law and an Associate Editor with the McGill Journal of Sustainable Development Law. She holds a Bachelor of Arts from McGill University in Joint Honours Political Science and English. Nicole has previously worked as a political staffer on Parliament Hill and in marketing with PricewaterhouseCoopers LLP. She has experience in projects intersecting with policy, energy sustainability, and corporate social responsibility.

This past summer, I had the privilege of visiting Hardisty, Alberta on August 11 to tour the Enbridge Line 3 pipeline replacement project. Hardisty is a small town close to the Saskatchewan border, and is perhaps most famous for being a central hub for the oil and petroleum industry. While touring the pipeline replacement project, I had the opportunity to listen to speeches from Amarjeet Sohi, the federal Minister of Infrastructure and Communities, as well as from Alberta Premier Rachel Notley, and Albertan Indigenous representatives. Through touring the pipeline and learning from politicians from all levels of government in Canada, I gained understanding of some legal and policy factors that contribute to whether proposed pipeline projects fail or succeed in Canada. These factors include the duty to consult, provincial approval, and (increasingly) whether the pipeline is environmentally responsible.

When infrastructure developments have an impact on an Indigenous community’s land or rights, the Crown has a “duty to consult” with Indigenous groups before embarking on the project. The Indigenous community must be informed of the nature of the project, and given opportunities to answer the proposal.  For the consultation to pass constructional validity, the consultation must be “real and substantial” according to the Supreme Court of Canada – though the Indigenous community does not need to approve of the project for it to eventually move forward.

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The exact provisions of the “duty to consult” still need to be developed through legislation and courts. Doing so will sharpen whether the duty to consult means only conversation with Indigenous peoples or whether it extends to taking Indigenous views into account, and meaningfully adopting them, while developing projects. What did become clearer over this summer is that improper duty to consult can cause a whole project to be cancelled. In Clyde River (Hamlet) v. Petrolium Geo-Services Inc. the Supreme Court found that the National Energy Board did not properly consult Inuit in developing oil and gas projects in the North. In this failure, the National Energy Board also neglected to assess the impacts the gas and oil exploration project would have on Inuit rights and existing treaties. Hence, treaty impacts must be assessed and environmental effects need to be considered from Indigenous perspectives.

Helping Indigenous communities participate in the consultation process should be a priority for governments and oil and energy conglomerates. Based on the importance of oral traditions to many Indigenous communities, spoken testimony from Indigenous leaders should be taken into consideration as a valid form of consultation participation. Funding is also often necessary to help Indigenous communities participate in the consultation process, especially given travel costs from remote communities.

The Supreme Court has addressed the scope of the duty to consult, as well as the negative effects pipeline projects can have on Indigenous rights and titles. With diversity in Indigenous communities, and a vast difference in opinion, consultations might need to extend across individuals, groups, and national Indigenous organizations like the Assembly of First Nations. Within Indigenous communities, there are different interpretations of territory, and its ancestral and spiritual relevance. Though some Indigenous voices may be heard in the process, some will necessarily be marginalized. Many individuals in Indigenous communities refuse to recognize the Canadian government’s authority over their lands and are directly opposed to the duty to consult framework, which they see as a colonial framework. While some Indigenous communities and groups may be willing to work with the government, others will refuse this outright and their voices will consequently remain unheard.


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Additionally, provincial support and approval of pipelines helps these projects move ahead. Getting provincial approval for pipeline projects is vital politically; though Ottawa technically does have jurisdiction over these projects, it can be risky for the federal government to overtly assert their decisions over pipeline projects. Doing so without provincial consent can upset the idea that each level of government has different competencies in their own spheres. However, pipelines are vast projects that necessarily trigger both federal and provincial competencies. Overlap therefore necessarily exists between the federal and provincial jurisdiction over pipelines. While in the future, cooperative federalism could possibly help with working through the provincial-federal issues stemming from pipeline projects, the current interpretation of federalism is still very much rooted in the lists of competencies set out in ss. 91 and 92 of the Constitution Act, 1867. A trans-provincial pipeline project could thus very well have to be abandoned if one province consistently opposes it.

The importance of provincial approval of such projects manifested this autumn, with the TransCanada decision to cancel the Energy East pipeline project. The project had huge opposition, especially in Quebec, by politicians and the public alike. Had the project been approved, the pipeline would have transported crude oil beginning in Hardisty, Alberta and ending in New Brunswick. In the process, the pipeline would have passed through the province Quebec (including through Montreal) and along the St. Lawrence River to get to the East Coast.

The failures of recent pipeline projects demonstrate that provincial acceptance of such projects increasingly determines whether the projects will actually occur. However, provincial dissent over pipelines also seem to be deepening divides and resentments between certain provinces. After the TransCanada pipeline project was cancelled the Mayor of Montreal at the time, Denis Coderre, praised the cancellation along with several Quebec Members of the National Assembly. Quebec’s opposition, at least partially, very likely contributed to the cancellation of the project. As a result, Saskatchewan’s premier, Brad Wall, sharply criticized Coderre, the Quebec National Assembly, and the federal government. Bernard Drainville, a member of the Parti Québécois provincially at the time, sniped back over Twitter that Saskatchewan was engaging in blackmail. “It’s either the pipeline, otherwise, no more equalization,” Drainville tweeted. The federal government thus needs to navigate the dangerous political landscape of provincial sovereignty while also smoothing dissent between provinces to help the likelihood of success of pipeline projects in the future.

Finally, environmental responsibility increasingly helps validate pipeline projects to the public. Even beyond validation, environmental arguments have recently helped pipeline projects move forward politically. For example, though the Kinder-Morgan pipeline will not necessarily get built, the Liberal British Columbia government did agree to further pipeline negotiations only after Kinder-Morgan agreed to invest funding for over 20-years into environmental projects in the province should the pipeline be built. Similarly, much of Quebec’s opposition to the TransCanada pipeline was rooted in environmental costs, without enough economic benefit to offset concerns over sustainability.

To mitigate environmental concerns, many pipeline companies have committed to investing in sustainable development technologies. According to the Alberta Energy Regulator, the body which manages Alberta provincial pipelines, the number of pipeline accidents declined 44% over the past 10 years with this commitment to safe and sustainable transport of energy. The University of Calgary has a special research branch part of their school of engineering, the Pipeline Engineering Centre, which focuses on the advancement of pipeline engineering. The Centre places special emphasis on “integrity, maintenance, and management” of infrastructure. This summer, researchers at the University of Calgary actually developed technology that would prevent pipeline leaks and better protect the environment. Though the technology is expensive, implementing it on existing pipelines around rivers and lakes could have beneficial environmental impacts that outweigh the monetary costs of installation.

These initiatives are in place to meet the demands of provincial and Indigenous governments, environmental groups, and the public to have environmentally responsible pipelines. Recent cancellations of pipeline projects have happened at least partially due to widespread public and civil society concern about how projects will affect the environment. As such, the federal government and oil and energy companies would do well to ensure that proposed projects are as environmentally sustainable as current technology allows.

 

Further Reading:

Rachel Ariss, Clara MacCallum Fraser and Diba Nazneen Somani, “Crown Policies on the Duty to Consult and Accommodate: Towards Reconciliation?” (2017) 13:1 McGill J of Sus Dev L 5, online: <https://www.mcgill.ca/mjsdl/files/mjsdl/2_volume_13_ariss.pdf>.

 

 

 

Towards Reconciliation: A Comparative Snapshot of Australia and Canada’s Take on Indigenous Rights

Michelle Larg is a first-year law student at McGill University, and holds a Bachelor of Philosophy (Hons) degree from the University of Western Australia.  Her previous majors under this research degree include Chemical Engineering, Chemistry, and French.  She is currently an Associate Editor for the McGill Journal of Sustainable Development Law.

While antipodal and culturally distinct, both Canada and Australia share residual monarchal ties, a past saturated with the consequences of colonialism, and the challenge of navigating reconciliation with their respective Indigenous populations.  Indeed, the historical practices of systematic oppression of these groups are strikingly similar between the countries.  During the nineteenth and twentieth centuries, both countries enacted several legislative measures aimed at cultural assimilation. This manifested notably in Canada’s Indian residential school system, and in Australia’s analogous Stolen Generations.  The legacy of trauma stemming not only from colonisation, but also from such policy endeavours, has engendered a significant socio-economic disparity between non-Indigenous and Indigenous people common to both nations today.  The statistics paint a startling picture of symmetry:  Indigenous peoples make up 25% of the prison population in Canada, and 27% in Australia, and half of the children in the child welfare systems in both countries.  As an Australian student who has recently relocated to Canada, however, it is the marked differences between the reconciliatory conditions of the nations that has caught my attention.

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While both federal parliaments formally apologised for the Indian residential school system and Stolen Generations respectively in 2008, Australia’s move towards enacting both symbolic and practical reconciliatory change has been slow.  Canada’s apology was issued only twelve years after the close of the last residential school, but it was almost four decades following the abolishment of the child removal policy in Australia before any such action was taken.  Moreover, Australia still has not granted their Indigenous minority constitutional recognition, while section 35 of the Canadian Constitution formally recognises and affirms aboriginal and treaty rights.  Although section 35 does not elaborate on the definitions of these rights – instead, leaving their definition to the courts –  it still remains a vast improvement over Australian proposals for potential amendment, which avoid any language pertaining to Indigenous rights at all.  Indeed, this has been a topic of heated debate in Australia in recent months, with the government formally rejecting a proposal for constitutional amendment only last week. Finally, 2017 saw tensions between non-Indigenous and Indigenous people escalate with the proposition that the date of Australia Day be changed to reflect the Indigenous perception of it marking a celebration of invasion.  This notion was fiercely rejected by the federal government, who stripped city councils which supported the idea of their right to host citizenship ceremonies.

In light of these issues, the fact that Australia was elected only a few weeks ago for a three-year term on the United Nations Human Rights Council has left many perplexed.  In fact, the UN Human Rights Committee itself criticized Australia’s “chronic non-compliance” with its recommendations.  The nation has also been condemned for often developing policies regarding Indigenous people without their consultation.  This begs the question: given their historical and political parallels, can Australia look to Canada’s recent initiatives and progress in the realm of Indigenous rights for guidance?

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From the perspective of a newcomer, it seems that Canada has made significant progress in the recognition and validation of Indigenous rights over recent years.  The introduction of Gladue reports is an example.  These pre-sentencing and bail hearing initiatives incorporate a holistic analysis into how colonial oppression has affected the upbringing, life, and conduct of Indigenous accused.  Such factors are to be considered during the sentencing phase of trials.  The reports aim to address the failure of the criminal justice system with regards to Indigenous peoples and their disproportionately high incarceration rates.  Australia’s High Court noted in 2013 that Australia could do well to follow Canada’s lead in this area.

Similarly, the emergence of Canada’s first Indigenous court created by and for Indigenous people last year is a noteworthy pillar of progress.  The Akwesasne court of the Mohawk people places a far greater emphasis on community-based restorative justice divorced from imprisonment than that of their Western counterparts.  It is self-governed, exists independently from the federal framework, and has transcribed a code of law of its own.  While community-run Indigenous courts have existed for a number of decades in Australia, they are still largely state-managed and operated and invoke Australian criminal laws, just in a more “culturally appropriate forum.”

It is clear that both countries still have their fair share of work to do.  Given Australia’s newfound position on the global stage as a promoter and protector of human rights, it has significant ground to cover in its own country with its own Indigenous peoples.  Despite its recent achievements, however, Canada’s endorsement of the United Nations Declaration on the Rights of Indigenous People in 2016 was belated.  Many also argue that the Gladue reports make little practical difference or constitute an inaccessible and painful process.  Perhaps both countries could benefit from the more contemporary vision of Indigenous legal scholars. John Borrows, a Law Professor at the University of Victoria of Anishinabe origin, has suggested an integrated approach to viewing Western and Indigenous paradigms of thought, for instance. The ‘inter-societal law’ he advocates for involves the prospect of reciprocal dialogue between Indigenous and Western law, which could jointly guide legal decisions.  The reconceptualization of these two groups as inherently intertwined and of equal validity, rather than disparate and in competition, would likely mitigate many of the intercultural issues confronting both nations.  Indeed, with regards to my home country, such a perception would be a good start for resolving the constitutional recognition crisis which has re-emerged as a point of contention.

The Oil Sands at 50: Assessing Ecological Costs and Economic Benefits

Abraham Rash is a first year law student with the McGill University Faculty of Law and an associate editor with the McGill Journal of Sustainable Development Law. He holds a Bachelor of Arts in History from North Carolina State University and a Master’s in Public Administration from the University of Vermont. He has previously worked for the United States Peace Corps and the United States General Services Administration.

Fifty years ago this month, the Great Canadian Oil Sands plant began commercial operations in Fort McMurray, Alberta. As the world’s first large-scale oil sands surface mining and refining plant, it proved to be a mixed blessing. On the one hand, it brought jobs and wealth to the region for five decades; on the other, it caused irreparable environmental harm to the Athabasca River basin and sweeping cultural changes for the First Nations who inhabit the area.

From a legal perspective it has also proven to be a Gordian knot of increasing complexity. When the plant was first established, little thought was given to either the role or the concerns of the First Nations beneath whose lands the oil sands were found. However, in the fifty years since – and particularly in the thirty-five years since the passage of the Constitution Act, 1982 – there have been great strides in the value placed on Indigenous rights, and to the point that Alberta is now consulting and accommodating First Nations as it is required to do under s. 35 of the Constitution Act, 1982.

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In purely economic terms, there can be little question that the oil sands have been of enormous benefit to the region, to Alberta, and to Canada as a whole. To date, the oil sands project has resulted in an estimated C$217 billion in capital expenditures; it provides direct employment for an estimated 151,000 people across Canada, with that number projected to exceed 225,000 by 2038; the Oil Sands Sector Fund provides some of the most consistent returns in Canada; and these benefits are only expected to grow in the future. Broadly speaking, the oil sands project has brought skilled labor to the region, provided jobs and stability for thousands, and has been a spark of economic life in an otherwise sparsely populated northern forest.

Of course, it isn’t a perfect picture. To begin with, there is the obvious fact that every drop of oil burned contributes to the growing specter of greenhouse gas emissions and climate change. But even then, the oil pulled from the oil sands is ‘dirty’ oil, i.e., thick, crude, and especially difficult – and expensive – to extract and to refine. Every step of the process creates far more pollution than most other forms of fossil fuel extraction, from the open pit mines where it is dug, to the tailing ponds where the bitumen is separated out, it takes two tons of sand to yield one ton of oil. In addition to the direct negative impacts of the mining itself, there is also damage to the water table, pollution to lakes and streams, air pollution, and the irreversible and unsightly blots of the old strip mines themselves.

It’s also hard on the people who live in the oil sands regions, particularly the First Nations of Northern Alberta. In addition to the health risks occasioned by the refining itself, there are also a number of social ills associated with the industry. Housing prices in the region tend to boom and bust in lockstep with oil prices. In November 2007, the average price of a single family home in the region exceeded $600,000, a price increase of over 300% since 1990. However, by August 2016, the average residential home price had fallen to $390,615. The vacancy rate for apartments in Fort McMurray is virtually zero, as the price of modest two-bedroom accommodations averages over $2,000 per month.

Similarly, inflation (measured by the Consumer Price Index) has risen steadily, despite decreased wages, and drops in oil prices drive booms in crime, particularly among First Nations. The sum of these and other effect has been dissolution:  as the Chipewyan Dene Nation that has inhabited the Athabasca river region for centuries has seen the destruction of the forest and river habitats that support their traditional hunting and fishing lifestyle, they have experienced a corresponding unraveling of the social fabric of their communities.

Fortunately, both the environmental and social problems are receiving increasing attention both in government and within the industry itself. Despite the profound damage done by the Harper government’s so-called ‘war on data’, oil sands monitoring has greatly expanded in scope and grown increasingly over the past decade. A joint Canada-Alberta Implementation Plan for monitoring was drafted in 2012, and a symposium was held in 2015 to focus on lessons learned. It is true that progress hasn’t been uninterrupted, as a report from 2016 on failures to adequately support Indigenous communities in the region highlights, but by all markers the state of the region is improving from a time when oil companies acted with impunity.

Of course, the big question is, what next?

It’s difficult to predict the future of the oil sands project with any certainty, but one recent development with enormous implications for both the industry and the region is a lawsuit brought by the Beaver Lake Cree Nation in 2012, arguing that the cumulative effects of oil sands and other environmentally destructive industries have violated their treaty rights. The nation won a landmark decision in 2013 in the Alberta Court of Appeal in Lameman v. Alberta, and they are continuing to push their case today. Whether they are successful or not, it seems certain that increased attention to the environmental and social impacts of oil sands extraction and the need for increased consultation and partnership with First Nations are both here to stay.

 

Interested in learning more? We suggest these articles from our past issues.

Crown Policies on the Duty to Consult and Accommodate: Towards Reconciliation?

The Trials and Tribulations of Ontario’s Mining Act: The Duty to Consult and Anishinaabek Law

Climate Change in Canada: Intersections of Law and Politics

Settler Colonialism and Extractive Dependency: Reflections on a visit to the Algonquins of Barriere Lake territory

By: Sydney Lang

On Wednesday, March 23, I visited Mitchikanibikok Inik, or the Algonquins of Barriere Lake (ABL) territory, as a part of a human rights delegation working on mining justice issues. Although I only visited the 59-acre reserve that the federal government forced the community onto, the community maintains over 10,000 square kilometers of territory. While on the reserve, I heard stories and saw firsthand the implications of extraction and energy within a settler colonial context, and the ways that this controls Indigenous peoples and their territory.

This firsthand experience stressed the past and present dimensions of settler colonialism. Historically, colonial governments and Indigenous peoples signed treaties for the sake of development. Land was needed to support the settler population and natural resources were desired as a source of wealth. Of course, the historical links between extraction and colonialism are not uniquely Canadian; they have roots in Europe’s colonization of Africa and the Americas. Colonial violence against African peoples took the form of forced mining labour, displacement, and slavery. Here, humans themselves were extracted, from Africa to the Americas, in the name of colonialism and resource extraction. As Eduardo Galeano writes in Open Veins of Latin America, this both dislocated agricultural communities, destroyed the collective farming system, and took many lives.

A house on the ABL Reserve. Attribution: Sydney Lang.

Throughout recent history, Indigenous peoples have been forced onto small reserves, often far from territory in which they have spiritual ties, for the sake of development and extraction. When extraction is set to take place on Indigenous territory, the Canadian government, as established through Canadian case law, has a duty to consult and accommodate Indigenous peoples. However, this duty does not require consent from Indigenous peoples. This exists in tension with UNDRIP’s requirement for the government to receive free, prior, and informed consent from Indigenous peoples before moving forward with development on their territory. It is also important to note that extraction is not limited to natural resources. The settler colonial project extracts and exploits labour, culture, knowledge, and autonomy, although this does not fit within pre-established case law.

Extraction

For many years logging has occurred on the Mitchikanibikok Inik territory I visited. As we walked through the reserve, we noticed a small pile of logs; the government leaves a pile every year for heating. This wood was logged on ABL territory and is the extent of resource revenue sharing by the government.

The ABL sought to address issues of extraction and resource revenue sharing by negotiating a Trilateral Agreement with the Canadian and Quebec governments in 1991. Although many recommendations were adopted under this agreement, resource extraction continues. In 2006, the community put forward a list of seven demands to be negotiated with the government of Quebec. Although Quebec accepted six of them, including co-management of renewable resources, they suspended negotiations in 2006 over a refusal to share resource revenue with the community.

Recently, a junior mining company called Copper One began prospecting on the territory and found large deposits of copper. This mine could have disastrous effects on the community and surrounding wildlife, as the mining claim covers 300 square kilometers and includes part of the La Vérendrye wildlife reserve. Neither the Quebec government, nor the company, informed or consulted the Algonquins of Barriere Lake before granting Copper One a mineral claim on their territories. The community takes a strong “no mining” stance, and have put their bodies on the line to prove it with the creation of a land protection camp. Although the government claims that it will temporarily suspend Copper One’s claims to the territory, the future of this project remains uncertain.

ABL Band Concillor Norman Matchewan giving a tour of the reserve. Attribution: Allan Lissner

Energy

The community backs onto a hydroelectric dam reservoir, owned by Hydro Quebec. This has created dangerous conditions for the community. Norman Matchewan, Band Councillor, told us that when it was first installed, the community was not warned when the corporation would be releasing water from the dam. As a result, two elders drowned from falling through the thin ice. Although the dam powers neighbouring communities, Hydro Quebec has not connected the reserve to the grid. This is another one of the community’s recommendations to the government of Quebec: the electrification of Rapid Lake.

Instead, the government has supplied the community with diesel generators. As we walked by the generators, we could smell the diesel. Norman told us that it isn’t unusual for the smell to reach the entire community when it’s windy. He also said that the generators are prone to breaking down, sometimes remaining unfixed for days. The community both relies on these generators for electricity, yet is also limited by them, as they are used at capacity and restrict the community from building much needed infrastructure. The generators supplied by the government both contribute to the community’s precariousness and force them to use unsustainable forms of energy that are polluting their land.

The Algonquins of Barriere Lake have endured colonial extraction in many forms, yet remain strong with their demands. Although the Canadian government has not yet recognized Indigenous peoples’ right to say “no” to development projects on their territory, enforcing the Trilateral Agreement and other integrated resource management plans and recommendations would act as a strong first step towards addressing histories of settler colonial violence through extraction and land use.

 

Interested in learning more about settler colonialism and extraction in Canada? We suggest these selected articles from our past issues:

6:2 Access to Justice: The Impact of Injunction, Contempt of Court Proceedings, and Costs Awards on Environmental Protestors and First Nations

8:1 Exploring the Mining “Money Trail”: Assessing British Columbia’s mining Tax Regime and Unearthing Legal Tools that Foster Greater Returns for Local Communities

11:2 Tsilhqot’in Nation as a Gateway Towards Sustainability: Applying the Inherent Limit to Crown Land

These articles are referenced as suggested reading. It should not be taken to imply their authors share the views expressed above. 

 

“Current” issues: why we need to talk about water law in Canada

Julia Redmond is a first year law student at McGill and an associate managing editor with the McGill International Journal of Sustainable Development Law. She holds a Bachelor of Arts and Science in interdisciplinary studies from McMaster University, with a focus in environmental science and policy.

If you live in Canada, you have probably been fed the myth that we are a nation of abundant clean water. Three-quarters of our country’s population live within 161 km of the US border, especially along the Great Lakes and the Saint Lawrence, where availability of water does not feel like an issue. (Of course, many others still feel the effects of a disturbing lack of clean water, in particular on aboriginal reserves; there are still dozens of boil-water advisories in place in aboriginal communities across the country.) In reality, Canada does have more water than most countries in the world — but this does not necessarily translate to availability.

https://flic.kr/p/ag7FKS: Paddlers on the Hart River, part of the Yukon’s disputed Peel Watershed. (Juri Peepre for Protect the Peel)

This water accessibility myth has consequences, be it on people’s day-to-day living, spirituality, work, or leisure. Water is essential, and yet it is not discussed as a legal or governance issue nearly enough. Thinking we have got it covered when it comes to water means that there is less public pressure and motivation to improve water governance — yet it needs improvement.

Various groups have insisted on a new governance structure that can better protect water resources, including academics and research groups, the government itself, and non-governmental organizations. Ultimately, Canada’s water governance challenge is not only a result of the myth of abundance; it also flows from the structure of our Constitution. It seems that water resource management was perhaps not top of mind leading up to 1867 when powers were divided up, leaving fisheries, navigation, and international waters to the federal government, and water resources and supply to the provinces, who delegate to municipalities.

This arrangement leads to different approaches to governance and managing its gaps. Manitoba, for example, had (until recently) an entire Ministry of Conservation and Water Stewardship — the only one of its kind in the country. British Columbia has implemented its own attempt at unified water legislation. Ontario enacted some reforms in response to the Walkerton crisis, while also relying on the Environmental Bill of Rights and its associated Commissioner for environmental stewardship. Like so many areas of Canadian law, water is complicated by our unique brand of federalism.

The last real attempt to make any kind of unified strategy to resolve issues and improve water management was 30 years ago, which is hardly current. While the surprisingly progressive Federal Water Policy (1987) has been praised for its call for the equitable and efficient use of freshwater respecting the needs of future generations, it did not lead to the kind of action needed to fulfill its objectives. No notable efforts have been made since for a unifying water policy.

There is some hope that the tide is turning, however. Water law and resource management has been getting more attention because it overlaps significantly with climate change, which has generally become a higher priority on government agendas at all levels. Water-related crises — like the flooding in Alberta in 2013 — have made it hard to ignore water governance issues, if only temporarily.

https://flic.kr/p/qHQBT9: Nestlé’s purchase of a well in the Township of Centre Wellington sparked public outcry. (Daniel Orth)

There have also been recent examples of the public speaking up and questioning government action on water. One such incident arose in the Township of Centre Wellington, Ontario, where Nestle purchased the rights to the municipality’s groundwater to bottle and sell it. Nestle had not only bought the water company — they had outbid the Township itself, who aimed to protect water from commercial interests. Residents started advocacy efforts, echoing the Environmental Commissioner’s warnings. All this eventually led the Premier to include water as part of her government mandate.

Even more recently, water management has gotten attention in the judicial branch, at the Supreme Court of Canada. March 22 was a watershed moment in more ways than one, as aboriginal and environmental groups came together to fight for protection of the Yukon’s Peel Watershed, a massive, untouched water system. The case arose out of a dispute between First Nations groups and the Yukon government after the breakdown in negotiations for industrial development of the area. The decision will have significant  implications for the duty to consult as well as for water law.

With the hearings of First Nation of Nacho Nyak Dun, et al. v. Government of Yukon done, it is difficult to say yet what will happen. However, no matter which way the case goes, it highlights the importance of addressing water issues at a national level. We can only hope this opens the floor for a bigger conversation, because it is about time for Canada to talk more openly and take action on water issues.

Interested in learning more about water law and resource management? We suggest these articles from our past issues:

10:1 Environmental Monitoring and Ecosystem Management in the Oil Sands: Spaceship Earth or Escort Tugboat?

8:2 Book Review: Inga Winkler, The Human Right to Water: Significance, Legal Status and Implications for Water Allocation

4:2 Book Review: Karen Bakker, ed., Eau Canada: The Future of Canada’s Water

Consultation, Accommodation, and the Right to Say “No”: How Aboriginal Rights Help to Protect the Environment

Allen Brett Campeau is a law student at McGill University and an Associate Editor with the McGill Journal of Sustainable Development Law. He studied the impacts of climate change on Arctic terrestrial ecosystems during his BSc and MSc degrees in Geography and Biology. You can connect with him on Twitter here: @ABCampeau

Canada’s commitment to tackling climate change and pursuing reconciliation with Indigenous Peoples is often challenged by deep-seated economic interests in fossil fuel development. The Trudeau Government has aimed to strike a balance between the economy and the environment while touting a new “Nation-to-Nation” relationship with First Nations, Inuit, and Métis people. It has thrown its support behind both the Paris Agreement on climate change and the Declaration on the Rights of Indigenous Peoples (UNDRIP), which would grant Indigenous Peoples greater say over resource development on their traditional territories. However, the Government also advocates resource-driven economic development and support for the ailing oil industry in Alberta. We are told that new tar sands infrastructure, like the Kinder Morgan Trans Mountain pipeline expansion, can be built while still honouring our climate change commitments and the principles of UNDRIP. This is a delicate balancing act for the Government, but the power and influence of the oil industry has a way of tipping the scales. Can this imbalance be remedied by implementing UNDRIP and better protecting Aboriginal rights?

Rally against the Kinder Morgan Trans Mountain pipeline expansion on Burnaby Mountain (November 17, 2014). Attribution: Mark Klotz.

On May 10, 2016, Canada officially removed its objector status to UNDRIP, almost 10 years after it was first adopted by the UN General Assembly. It was a watershed moment, of sorts, for our country, which has long struggled with colonialism and its ongoing consequences. After making the announcement, Indigenous and Northern Affairs Minister Carolyn Bennett received a rare standing ovation at the UN. The move was also celebrated here in Canada, with Perry Bellegarde, the National Chief of the Assembly of First Nations, hailing it as a “historic day”. This was, after all, the first step towards actually implementing UNDRIP, which the Trudeau Liberals promised to do in their 2015 election platform.

Canadian governments have expressed reservations about UNDRIP because of perceived conflicts with existing Canadian legislation, like the Indian Act, and with the Canadian constitutional framework. Section 35 of the Constitution Act, 1982 recognizes and affirms Aboriginal rights, but it does not define them, leaving issues of uncertainty to be resolved in the courts. Of particular relevance to climate action and resource development is the so-called “duty to consult”, established in Canadian case law, which requires the Canadian government to consult and accommodate Indigenous Peoples on matters that affect their rights. However, there currently exists no constitutionally protected Aboriginal right to be consulted. Nor is there any requirement for the government to obtain the consent of an Aboriginal group before approving developments on their territory. This is perhaps the most important – and politically controversial – difference between Canadian law and UNDRIP, since its Article 19 may be interpreted as compelling States to “obtain [the] free, prior and informed consent [of Indigenous Peoples] before adopting and implementing legislative or administrative measures that may affect them.” The full implementation of UNDRIP would require recognition of this right in Canadian law, potentially giving Indigenous Peoples a “veto power” – a right to say “no” – over developments on their territory.

Idle No More protesters in Ottawa. Attribution: Moxy.

The Trudeau Liberals have not acknowledged anything approaching an Aboriginal veto power in their recent approvals of pipelines and other fossil fuel projects. In fact, the Government appears to be backpedaling on its promise to implement UNDRIP and has largely ignored Aboriginal concerns in the pipeline and climate change debates. Less than two months after declaring Canada’s unconditional support for UNDRIP, Minister Carolyn Bennett expressed scepticism of an Aboriginal veto power and stated that development projects “in the national interest are to be considered.” This position is in keeping with recent jurisprudence on Aboriginal rights and title in Canada, like Tsilhqot’in Nation v British Columbia (2014), which set out a test allowing the Crown to override Aboriginal title in certain circumstances. Put simply, the Government can approve a project that occupies or traverses Indigenous lands, despite opposition, if they check all the boxes on the “duty to consult” and show a “compelling and substantial public interest” in the project. The promise of jobs in the oil patch and the refrain that “we need to get our resources to tidewater” could allow the Government to justify its December 2016 approval of the Kinder Morgan Trans Mountain pipeline expansion. And if there was any doubt about the Government’s position on UNDRIP’s Article 19, Prime Minister Trudeau stated “No, they don’t have a veto” when asked about First Nations that continue to oppose the pipeline.

The Government’s approval of the Trans Mountain project was a welcome boost for the oil industry, but raises serious doubts about its commitment to climate action and reconciliation with Indigenous Peoples. Charlene Aleck, an elected Councillor with Tsleil-Waututh Nation at the heart of the pipeline debate, called the political maneuvering of the Trudeau Liberals a “fundamental betrayal.” Her First Nation is one of several pursuing legal action against the Government, arguing that they were not properly consulted about the project. The outcomes of these lawsuits are far from certain given the rapidly evolving nature of Aboriginal law in Canada, but recent jurisprudence suggests a growing willingness to recognize Aboriginal title and land rights. The Government’s formal recognition of UNDRIP presents an opportunity for the courts to strengthen protections for Aboriginal rights and entrench previously unrecognized rights, perhaps even the right to say “no” to developments on Indigenous lands. Indigenous communities stand to gain a stronger hand in development planning and an even more important leadership role in Canadian climate policy, with the likely upshot being a healthier planet for all of us.

An Antitrust Remedy to “Economic Anxiety”

Fabian is a McGill first-year law student who completed a D.C.S. in Commerce from Collège de Bois-de-Boulogne. His main interests are antitrust law, corporate governance, and law and economics.

Attribution: Alex Proimos, Wall Street Sign

Economic inequality has sparked resentment across the Western hemisphere, which played right into the hands of populist politicians. Common people were led to blame globalisation and immigration for their misfortunes, thereby ignoring their real causes. Certainly, there are genuine racists and xenophobes, but it is unhelpful and quite distorting to paint almost half the electorate as such. The average person is admittedly not completely colour-blind, but normally they would neither so vehemently wish to bar refuge to homeless children fleeing certain death, nor to round up harmless illegal immigrants and deport them à la Gestapo.

However dismissed by many commentators, Western voters’ “economic anxiety”, rooted in rising economic inequality and job insecurity, may explain the current political climate. A further inquiry shows that it is a deficiency in firm competition which may be at the source of the problem.

Economic Inequality

Last year, McKinsey, a management consultancy, released a report about income inequality, in which it concluded that the real income of most households in developed countries (65-70%, or 540-580 million people) either stagnated or fell between 2005 and 2014. It also warned that “today’s younger generation is at risk of ending up poorer than their parents”, especially the less-educated. The simplest evidence which supports that conclusion is youth unemployment rates in Europe. Another aggregate measure which illustrates this reality is wealth. A study by Credit Suisse, a bank, shows that the world’s top 1% possess more wealth than the rest of the world and, based on that study, Oxfam estimates that the richest 8 men are wealthier than the world’s bottom 50%.

Economic inequality is also evidenced by firms’ rising after-tax profits. McKinsey calculated that, in the US, they have reached their highest as a share of GDP since the Great Depression. Further figures are provided by the Economist: US firms’ after-tax cash flow and global return on invested capital have reached all-time records.

These figures could be spun differently depending on perspective and motives. It is certain, however, that they are symptomatic of structural problems. The benefits of free markets are supposed to diffuse onto all participants and raise society’s general welfare. Current policies, or lack thereof, fail their underlying theory for, however cliché and populist this sounds, the rich are getting richer and the poor are getting poorer. At best, current policies alleviate widening inequalities by transferring assistance funds to households (as does, for instance, the new Canada Child Benefit scheme), but they do not tackle the structural problems that cause and perpetuate these widening inequalities in the first place. That is cause for concern, for these trends are greatly unsustainable, both economically and politically (if not morally, too). The urgency of action is heightened especially by the rise of technological advances that threaten to fundamentally change the landscape of labour markets and to increase job insecurity, which would further exacerbate inequalities.

Stifled Competition Reveal Market Deficiency

Generally, free markets are efficient only if they are perfectly competitive, according to neoclassic economic theory. While this is obviously theoretical due to the model’s many assumptions, governments can still intervene to correct markets’ inherent imperfections. That is why, for instance, Canada’s Competition Bureau and America’s Federal Trade Commission (FTC) are given regulatory powers to sanction anticompetitive behaviour and fraudulent marketing practices.

But, in light of the above data, these powers seem either limited or unexercised, for markets are getting more and more concentrated. The revenue shares of big firms are increasingly getting disproportionate: a study by the Economist shows that, in aggregate, the top four firms of every sector have increased their revenue share by more than 5 percentage points since the late-90s to 32%. The trend to further concentration is mostly accentuated in the three following sectors, where the increase in the revenue share of the top four firms is double the average increase: transports and logistics, retail, and finance and insurance. A more wholesome study by the Council of Economic Advisers (to the American President) points out that the top 10% of US nonfinancial firms now accumulate 8 times more on their invested capital than the median firm, almost triple the rate from the 90s.

This concentration is worrisome because it reflects a generalised monopolistic behaviour. In the traditional microeconomic model, when a firm innovates and gains a competitive advantage therefrom by raising its prices, its competitors catch on and new firms enter the market to reap the benefits of the increased prices; the sudden increase of offer, the model holds, would eventually lower prices. But this is not happening. Because there is a steep, decades-long decrease in start-ups, firms have successfully consolidated their positions, as shown by the above figures. Coupled with other factors, notably the record $10 trillion wave of mergers and acquisitions from 2008 to 2015 and the 33% increase in lobbying spending, big firms have an 80% likelihood of keeping their positions ten years later, shows the Economist’s study, a jump of 30 percentage points from the 90s.

Apart from business efficiency and innovation concerns, this trend explains in part the aforementioned inequality. As big firms increase their earnings, they share them with their employees and investors, which leaves those of competing firms poorer, hence increasing the inequality. Also, instead of benefiting consumers and satisfying labours markets’ offer surplus, these firms rather park their excess cash (estimated at $800 billion a year in the US, according to the Economist study) in offshore or domestic banks, or spend it in buyback schemes.

Attribution: Carol M. Highsmith, Federal Trade Commission’s Headquarters in Washington

Antitrust Regulation to Free Competition

Antitrust regulators ought to be alarmed by these figures. According to a Financial Times analysis, the Obama administration blocked M&As worth $400 billion. This figure seems considerable, but it results from an average of 17 public challenges a year which, in total, only accounted for a meager 4% of the absolute value of M&As under Obama’s watch.

This laissez-faire policy suggests that antitrust regulators either lack resources or the appropriate tools to prevent anticompetitive practices, because the rise of oligopolistic markets is too consequential to ignore. The danger of dirigisme looms over granting broader authority and resources to antitrust regulators, yet such a risk remains a better alternative to unyielding economic policies which fail to address structural problems. Increased competition would stimulate innovation and investment on the long run and rescue domestic labour markets and lower prices, which would alleviate depressed wages and, in turn, may exercise inflationary pressures to properly heat up the world economy. Only then could interest rates perhaps regain their normal levels; albeit an efficient lubricant, loose monetary policy can only sustain economies as long as markets remain competitive.

Yet, it seems unlikely that antitrust policy would be revamped anytime soon, as the current mood is for further relaxation of regulatory standards. The Trump administration wants to deregulate banks which, granted, will stimulate the economy on the short run, but it might also set the stage for a rerun of the last financial meltdown. The Republicans have planned to reform the tax system, which would patriate firms’ $2.1 trillion offshore excess cash (or at least some of it) and somewhat lower the widening inequality gap. But without increased antitrust regulation, the world economy will remain unsustainable, and popular discontent, threatening at large.

Interested in learning more about inequality and economic policies? We suggest these selected articles from our past issues and other further readings:

These articles are referenced as suggested reading. It should not be taken to imply their authors share the views expressed above. 

Climate Change in Canada: Intersections of Law and Politics

Tristan E. Masson: Tristan is an undergrad student in Political Science and Sustainability Studies at Concordia University. He currently sits on the Board of Directors of Sustainable Concordia.

Due to the global dimension required for the success of collective action on climate change, the scope of analysis is often not confined to the boundaries of a single state. However, the picture is incomplete without due consideration of the internal dynamics of a country. Climate change policy remains politically precarious in Canada, and these tensions are aggravated by the need to navigate the federal nature of the Canadian political system.

An aerial view of an extraction site in the area of Fort McMurray, Alberta. Attribution: Greenpeace/Jiri Bezac, Tarsands

Even before becoming Prime Minister, Justin Trudeau’s Liberals committed to climate action and international multilateralism to this effect in their election campaign platform. The Prime Minister’s enthusiasm was aptly epitomized when he emphatically announced to a crowd of CoP21 delegates: “Canada’s back, and here to help”.

Perhaps to the dismay of many, public policy is not so simple. Given Canada’s democratic and not dictatorial approach to politics, one should take the PM’s words with a grain of salt, or, to adapt the proverb, a drop of oil.

Last November the PM approved two pipeline projects while rejecting a third. More recently, President Trump confirmed that he would consider the construction of Keystone XL, a decision “welcomed” by PM Trudeau.

This should come as no surprise given the broader economic context. Canada’s economic bread and butter, as it were, has historically been to rely on staple resource commodities with an export-led growth strategy. With the days of the fur trade long behind us, Canada’s most significant resource commodity is energy—a pattern countries endowed with abundant energy followed in the 20th century.

By one measure, fossil fuel products as a proportion of exports have passed from little over five percent in 1997 to one-fifth of all exports in 2011. In comparison other exports, energy products have been the most significant export product of the last five years.

Unsurprisingly, the three most carbon-intensive sectors are oil and gas, transportation and electricity. One can see immediately the interconnection of the three, for the fossil fuel sector feeds the other two (and many more). With this in mind, coupled with the fact that the vast majority of global greenhouse gas emissions come from the energy sector, climate change mitigation efforts are best to focus on scaling back emissions-heavy energy forms and energy efficiency. For Canada, the burning question is simple but challenging: how do we contract the most significant sector in the economy while avoiding immediate economic downturn and an economy-wide ripple effect?

This political and policy dilemma is made more complex in Canada due to the federal nature of our political system, where legal jurisdiction is shared between two levels of government each sovereign over their respective spheres of powers. The current tenor of the climate debate accepts that effective policy will inevitably overlap these jurisdictional divisions, thus requiring both federal and provincial cooperation and assent.

Canada’s Premiers and Prime Minister jointly announce the Pan-Canadian Framework on Clean Energy and Climate, December 9th 2016. Attribution: Équiterre, The Pan-Canadian Framework on Clean Growth and Climate Change

Canada’s Premiers and Prime Minister responded with the Pan-Canadian Framework on Clean Growth and Climate Change. The framework includes an investment strategy and new regulation spanning across sectors. However, we must note what is missing: the signatures of the provinces of Saskatchewan and Manitoba. It’s also worth underscoring that Alberta’s NDP government, the only party favourable to such initiatives in the province, will be in a precarious position come next election. As a matter of fact, Premier Notley’s actions on climate change have already sparked howls from the Alberta opposition. Federally, many MPs in the Conservative Party of Canada caucus, as well as contenders for its leadership, have taken issue with the carbon price—a centerpiece to the policy.

We’re often reminded that environmental issues can’t be solved in one day’s work, and in the case of climate change this rings true even across generations of collective action. A political dilemma that is inherently complex becomes only more fraught and precarious when navigating the legal terrain of Canada’s federal political system. While the momentum has swung towards greater action, we must expect the pendulum to swing back. When this occurs, the result will not so much resemble the Tragedy of the Commons, but rather the inevitable conflicts that stems from the intersection of law and politics.

 

What are we doing about the “Canada Brand”?: Canada’s strides towards corporate accountability in the extractive sector

Sydney Lang is a first year law student and an associate editor with the JSDLP. She recently completed a BA from the University of Toronto in Socio-Cultural Anthropology and Equity Studies. She organizes with the Mining Injustice Solidarity Network.

Last fall, Osgoode Hall’s Justice and Corporate Accountability Project published a ground-breaking report detailing the egregious violence perpetrated by Canadian mining companies towards communities who both neighbour and have been displaced by their mine sites in Latin America. The report, titled The “Canada Brand observes that “violence is accepted as a part of doing business.” The facts are astonishing, yet unsurprising. Incidents involving 28 Canadian mining companies that occurred between 2000-2015 led to 44 deaths, 403 injuries, and 709 interactions with law enforcement, including legal complaints, arrests, detentions, and charges. A significant majority of these incidents were classified as targeted, or occurred when the community was protesting the construction or operations of a mine.

Attribution: MISN, MISN Sneaks into the World’s Largest Mining Convention

Attribution: MISN, MISN Sneaks into the World’s Largest Mining Convention

Unfortunately, individuals and communities who have been injured or killed at the hands of Canadian mining companies and their subsidiaries typically have little to no legal recourse in the jurisdiction where they are harmed. They often have no means to seek justice and hold corporations accountable for their human rights violations.

Several factors contribute to this access to justice problem. First, there are huge power imbalances between local community members—often Indigenous inhabitants whose land, labour, and bodies are being exploited—and large multi-national corporations. When claims are brought against a corporation, the community is likely to receive threats and acts of violence against them. Further, in some countries where Canadian mining companies operate, claimants have been repeatedly denied a fair trial due to systemic corruption in the judiciary, procedural inefficiency, and common interests (mining and political) shared by the multinational company and the state in which they are operating.

In order for the Canadian government to take responsibility for Canada’s “brand,” there must be legal mechanisms in place whereby Canadian companies can be held accountable in Canada for their human rights violations abroad. There have been strides to do from various stakeholders across the country, mostly led by academic advocates, NGOs, and grassroots activists. These strides have taken the form of lawsuits, proposed legislation, electoral promises, and policy campaigns.

To start, there are two ground-breaking cases that are currently ongoing in Canada. In both cases, the plaintiffs were able to overcome the doctrine of forum non conveniens. This doctrine provides courts with the “discretion to dismiss a case in favour of a foreign jurisdiction.” The application of this doctrine has historically protected Canadian companies from being held accountable in Canada for subsequent violence and exploitation related to their operations abroad.

Most recently, on January 27th, 2017, the British Columbia Court of Appeal permitted a lawsuit to advance against Tahoe Resources Inc., brought by 7 Guatemalan men for the injuries they suffered during a peaceful protest at Tahoe’s Guatemalan mine. This is the first time that a lawsuit against a Canadian company for their human rights violations abroad is being permitted to advance in a Canadian court.

In October, the Supreme Court of British Columbia also permitted a lawsuit to advance against the Canadian mining company Nevsun Resources. The suit was brought by 3 Eritrean men for Nevsun’s complicity in the use of forced labour (as part of the dictatorship’s conscription program) at their Bisha mine in Eritrea. This is the first time that a mass tort claim for modern slavery will go forward in a Canadian court.

Attribution: MISN, WANTED: Tahoe Resources’ Corporate Criminals action – May 4, 2016

Attribution: MISN, WANTED: Tahoe Resources’ Corporate Criminals action – May 4, 2016

In addition to these lawsuits there have been several private members’ bills proposed by MPs that address issues of access to justice and corporate accountability. John McKay brought forward Bill C-300 in 2009. Although this bill seemed to be a positive stride towards accountability in the extractive sector, it did not pass. Others have followed, most recently Bill C-331, which was introduced in December and is likely to have a similar fate.

A final approach being advanced to hold Canadian companies accountable involves independent Government bodies. Last fall, the Canadian Network for Corporate Accountability (CNCA) released a model ombudsperson legislation. This was in response to a lack of government action of their electoral promise to create an independent ombudsperson for the extractive industry. It was also in response to the Corporate Social Responsibility (CSR) counsellor and National Contact Point (NCP) positions created by the Harper government that have proven to be both inefficient and non-independent from the government and mining industry. According to the CNCA, it appears likely that the Liberal government will propose an ombudsperson within the next few months, although the details of the ombudsperson role remain unknown.

It is still unclear whether a solution to corporate accountability will come from the courts, legislation enacted by Parliament, or an independent body, such as the ombudsperson. Regardless, it is evident that domestic and international pressure is increasing and the Canadian government, whether they like it or not, must respond.

 

Interested in learning more about corporate accountability, access to justice, and the Canadian extractive sector? We suggest these selected articles from our past issues:

6:2 Access to Justice: The Impact of Injunction, Contempt of Court Proceedings, and Costs Awards on Environmental Protestors and First Nations

8:1 Exploring the Mining “Money Trail”: Assessing British Columbia’s mining Tax Regime and Unearthing Legal Tools that Foster Greater Returns for Local Communities

9:1 The Next Stage of CSR for Canada: Transformational Corporate Governance, Hybrid Legal Structures, and the Growth of Social Enterprise

9:1 Case Comment: Commentaire sur Anvil Mining

These articles are referenced as suggested reading. It should not be taken to imply their authors share the views expressed above. 

The False Promise of Natural Gas

Patrick Kanopoulos – Patrick is a first-year law student at McGill University. He holds two degrees in engineering from the University of Toronto and is an associate editor for the McGill International Journal of Sustainable Development Law and Policy.

Shale Gas: What is it and why is it dangerous?

Despite rising demand in the natural gas market, the price of natural gas has continued to decline. This is a consequence of the precipitous increase of natural gas produced by non-conventional sources: tight shale formations are drilled horizontally and broken apart by a process called hydraulic fracturing. The process loosens up the rock formations which have trapped natural gas. Once drilling and fracturing is completed, and the water and chemicals have been recovered from the well-bore, the natural gas vents upwards through the borehole and is recovered at the surface. Non-conventional shale gas recovered in this manner represented a negligible portion of the shale gas market in the early 2000’s, and now represents 48% of natural gas produced in the U.S.

Growth of shale gas production in the US since 2000. Attribution: US Energy Administration, via Wikimedia commons.

Growth of shale gas production in the US since 2000. Attribution: US Energy Administration, via Wikimedia commons.

While the negative effects to local groundwater sources and the effects of increased seismicity have been well documented and disseminated in popular media, the full extent of the atmospheric effects of shale gas production are only now coming to light. The most recent scientific evidence on shale gas extraction indicates that methane emissions resulting from shale extraction could far outweigh the benefits of using natural gas over coal as an energy source. The exact quantity of methane that leaks from the well-bores has long been a source of controversy: scientists and engineers were unable to quantify the exact amount of methane that was leaking through, and around, well-casings which are designed to prevent the gas from escaping into the atmosphere. The EPA long suggested that quantities lost to the atmosphere were limited to approximately 2% of methane recovered for combined production (upstream) and transmission (downstream) losses. Recent research based on satellite data suggests that this fugitive methane from up-stream shale production could be as great as 10.1% – a far greater quantity than originally anticipated. While there is still some controversy surrounding the upper limit of these findings, many reports place the range of fugitive upstream methane emissions at approximately 4% to 9%, much higher than the EPA’s own estimates.

One might ask why the leaking of methane is significant? If all the methane were recovered, the combustion products used to produce heat or electricity would be released into the atmosphere as carbon dioxide anyway. The simple answer is that methane, while it remains in the atmosphere for a shorter period, is a far more potent greenhouse gas than carbon dioxide. Over a 20-year period, the global warming potential (GWP) – a term used for ability of the gas to trap heat in the atmosphere – of methane is over 72 times greater than for an equal quantity of carbon dioxide. Over a 100-year period, the GWP falls to approximately 25. Once a certain quantity of methane is leaked from a well-bore and into the atmosphere, the relative advantage of using natural gas as opposed to coal is quickly diminished. Estimates suggest this is decisively the case today. In fact, using shale gas as an energy source is likely worse for the short-term prospects of the climate than coal. Most studies put this break even point at about 3% of methane vented to the atmosphere relative to the total quantity of methane which makes it to the end user when the 20-year time horizon is considered.

The short-term window of methane’s existence in the atmosphere is important: many of the climate’s tipping points will occur within this period. The irreversible break-up of the west-Antarctic and Greenlandic ice sheets are predicted to begin this century. On top of this, a warming atmosphere risks losing arctic permafrost (which will release even greater amounts of methane into the atmosphere), and precipitating a positive feedback cycle. Once these processes begin, the ensuing sea-level rise will be impossible to stop.

Flaring of natural gas, North Dakota. Attributions: Tim Evanson.

Flaring of natural gas, North Dakota. Attributions: Tim Evanson.

Why is methane an indispensable energy source for Canadians?

Many provinces across Canada have adopted natural gas as an energy source as part of a strategy to reduce greenhouse gas emissions. This strategy focusses on using natural gas as a “transitional energy source” until natural gas generation can be replaced by renewable sources of energy. The strategy involves phasing out older coal generating power plants which produce approximately twice as much carbon dioxide as natural gas electricity generation. As you might expect, these policies did and do not consider the emerging evidence that natural gas upstream natural gas emissions are not as clean as they seem.

Significantly, natural gas generated electricity has the capacity to compensate for the intermittency issues that plague solar and wind-generation energy sources. Natural gas generation stands as a safeguard for the variability of renewables, and the peak demand loads characteristic of most energy generation networks. It is not enough to simply replace natural gas with renewable generation. Rather, any feasible alternative must implement energy storage solutions which offset the intermittency issues of renewables and can respond to peak demand loads. No universal and widely-deployed solutions of this nature exist, and much more research is required in this area.

What are the legal and policy implications of these findings in Canada?

First, and most obvious, the urgency of a natural gas phase-out must be re-evaluated considering these major findings. Canadian provinces which rely on natural gas as an energy source need to invest in the deployment of renewable energy sources, and the research and implementation of energy storage at user and network-wide scales. Some of the demand for heating can be offset by heat pumps and geothermal systems, financed through aggressive government subsidies and financing programs. Switching back to coal, or ensuring that only conventional sources of natural gas are being exploited are not solutions. The long-term effects of coal generation are unacceptable by any standard, and ensuring that natural gas is derived from a conventional source will only reallocate the demand for non-conventional natural gas elsewhere.

Second, and less obvious, are the implications on cap-and-trade and carbon capture programs. The emerging evidence regarding fugitive methane has given scientists an idea of the quantity of methane being emitted to the atmosphere in the aggregate, but it gives no indication of the quantities leaked by individual wells or operators. Any emitter falling within a carbon tax or cap-and-trade system would find themselves unable to correctly quantify, and take measurable efforts against leaking wells. Further to this point, capturing carbon emitted by natural gas generation may be effective in reducing the carbon dioxide released into the atmosphere, but these technologies will not address the more critical issue of containing methane where it is leaking in the greatest quantities: at the well. The point here is that leaking methane from non-conventional gas production is not easily resolved by either the best technological or economic means available at present.

In the short term, more research is required to establish exactly how much methane is emitted from natural gas extraction from shale. Until this is firmly established, Canadian provinces and territories considering shale gas development should impose moratoria until there is firm scientific consensus on the fugitive methane emissions and means of containing them. Quantification of fugitive emissions is also essential for bringing existing shale operations into carbon tax and trading regimes.

In the medium-to-long term, provincial governments should reconsider the central role of natural gas in their energy strategy, and should invest aggressively in the testing and implementation of energy storage technologies to phase out natural gas as quickly as possible. Considering Canada’s agreement to curb its emissions following the COP21 Paris Summit in 2015, the Canadian government, along with all provinces, must re-examine their role as both producers and consumers of natural gas – and take serious and concrete steps towards better energy alternatives.

Interested in learning more about policies revolving around transitioning towards low-carbon economies? We suggest these selected articles from our past issues: 

 

 

These articles are referenced as suggested reading. It should not be taken to imply their authors share the views expressed above. 

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