Canada High Court Decision Impacts
Energy Project Development
The Supreme Court of Canada (SCC) by unanimous decision on June 26, 2014 in the case of Tsilhqot' in Nation v. British Columbia declared for the first time "Aboriginal title" in Canada for the Tsilhqot'in Nation over tract of land in the interior of British Columbia. This case furthers a long line of decisions on Aboriginal rights and title. In Tsilhqot'in, the SCC prescribes the meaning of Aboriginal title and articulates new tests for establishing it. The decision lacks clarity on the practical application of its ruling. The result, at least in the short run, is uncertainty, and additional clarity from the courts will be required. In the meantime, if major projects are to proceed, a much higher level of cooperation among First Nations, government and project proponents will be required. In brief, Aboriginal title confers on the group that holds it the exclusive right to decide how the land is used and the right to benefit from those uses, subject to the restriction that the uses must be consistent with communal ownership of the interest and must assume the continued enjoyment of the land by future generations. Government infringement of Aboriginal title is theoretically possible in certain circumstances, but court challenges on this aspect are likely to abound. Read the full article by Warren Brazier with Clark Wilson LLP. 

Triton Wins 25-Year Licence to Export LNG from BC
Project would be smaller than rival Petronas-led LNG terminal
The National Energy Board has approved an application by Triton LNG Limited Partnership for a 25-year licence to export liquefied natural gas from a port in British Columbia. Triton, a partnership announced last year between Calgary-based AltaGas Ltd. and Idemitsu, will ship the gas from either Kitimat or Prince Rupert. The NEB says a proposed liquefaction terminal will require further regulatory approval before construction can begin. In their application, the Triton partners said they envisaged a facility capable of processing 2.3 million tonnes of LNG per year. Read CBC article.   

Meikle Wind Energy Project Granted Environmental
Assessment Approval
Environment Minister Mary Polak and Energy and Mines Minister Bill Bennett have issued an Environmental Assessment Certificate to Meikle Wind Energy Limited Partnership for the Meikle Wind Energy Project, located approximately 30 km northwest of Tumbler Ridge. The decision was made after considering a review led by British Columbia's Environmental Assessment Office. The ministers have issued the certificate with legally enforceable conditions that have given them the confidence to conclude that the project will be constructed, operated and decommissioned in a way that ensures that no significant adverse effects are likely to occur. A record of the factors that the ministers considered in making their decision can be found in the Reasons for Ministers' Decision at: http://tinyurl.com/pt335qn. The Environmental Assessment Certificate includes 24 conditions. Design restrictions are specified in the Certified Project Description. Each of the conditions and the Certified Project Description are legally binding requirements that Meikle Wind Energy must meet to be in compliance with the certificate. Read the full government news release. 

New Penalty Program Introduced to Encourage Compliance
The Ministry of Environment is introducing a new administrative penalty program to encourage compliance with the Environmental Management Act (EMA) and the Integrated Pest Management Act (IPMA). The new program makes it possible to give out financial penalties to violators who fail to comply with an Act or regulation, or with orders, licences or permits issued by ministry officials. The goal is to encourage compliance and discourage potential violators. Administrative penalties are to be used when non-compliance has a direct environmental impact or interferes with the protection of the environment. This new program fills a gap between warnings and violation tickets for minor offences and criminal prosecutions for more serious offences. Examples of violations include:

• Discharging waste without a required authorization;
• Releasing a substance into the environment that exceeds what is permitted under an authorization or regulation; or
• Failure to submit monitoring reports.

A violation will fall into one of four categories with maximum penalties of $2,000, $10,000, $40,000 and $75,000. Each violation will be evaluated on a case by case basis with no fixed penalties. Final decisions on penalties will be made by statutory decision makers within the Ministry of Environment. Read full government news release. 

Report Slams Fish Farm Secrecy on BC Coast
The federal government puts wild salmon stocks and research at risk by not releasing important data about fish farms along the BC coast, says a report by the Environmental Law Centre at the University of Victoria. The report takes issue with the lack of information available to researchers and the public about when and where disease outbreaks occur on salmon farms. Currently, when there is a disease outbreak at an aquatic animal facility – such as a fish farm – it must be reported to the Canadian Food Inspection Agency. However, the federal agency only makes some of that information available to the public. For example, on March 26 a fatal virus called hemorrhagic septicemia was reported in Atlantic salmon somewhere in BC with no further details. Read the Times Colonist article. 

Environmental Appeal Board Decisions
There were two Environmental Appeal Board decisions released in the month of June:

• Wildlife Act – Darren James Linnell v. Regional Manager, Recreational Fisheries and Wildlife Program (Cariboo Region) [Final Decision – Appeal Dismissed with Recommendation]
• Water Act – Assistant Regional Water Manager and Ministry of Forests, Lands and Natural Resource Operations v. Jill Fitzpatrick [Preliminary Application: Application to Strike – Granted in Part]