Energy and Mines News:

No Aboriginal Title Required: BC Court of Appeal Allows
First Nations' Civil Claim Against Alcan to Proceed
On Wednesday, April 15, 2015, the BC Court of Appeal released its decision in Saik'uz First Nation and Stellat'en First Nation v. Rio Tinto Alcan Inc. In its decision, the court allowed the claims of the plaintiffs Saik'uz First Nation and Stellat'en First Nation (Saik'uz and Stellat'en) to proceed despite the fact that they are, in part, based upon unproven assertions of Aboriginal title. This precedent-setting decision could make litigation more attractive to First Nations unsatisfied with the results of consultation and accommodation. Rio Tinto Alcan Inc. (Alcan) operates the Kenney Dam, located near the geographic centre of British Columbia, to power Alcan's aluminum smelter near Kitimat, BC. In 2011, Saik'uz and Stellat'en commenced an action against Alcan alleging the company's operation of the dam created a nuisance and breached the First Nations' riparian rights within an area over which they claimed Aboriginal title. Neither Saik'uz nor Stellat'en holds a treaty and neither First Nation has proven aboriginal title. In response, Alcan sought an order to, among other things, have the court strike out the First Nations' notice of civil claim. Read the full article by Jason Fisher, R.P.F. and Jeff Waatainen with DLA Piper. 

LNG Industry in BC Threat to Environment
and Energy Security: Study
BC's liquefied natural gas industry threatens to harm the environment and erode Canada's energy security, says a new analysis. Geoscientist David Hughes, in a study for the Canadian Centre for Policy Alternatives, warns that LNG is far from the clean fuel that the BC government portrays it to be. Water filling the equivalent of nearly 22,000 Olympic-sized swimming pools a year would be required in the industry's fracking process in drilling for natural gas in northeast British Columbia, he said. "Almost all of BC's future gas production is expected to involve fracking, which requires much more water and produces much more greenhouse-gas emissions than conventional drilling," Mr. Hughes said in his 50-page report to be released [May 26^th]. "A major public concern is the amount of water and the chemicals and other additives used in the fracking process, as well as the potential for contamination of surface water through surface casing failures and improper disposal of fracking waste water." View the full article on The Globe and Mail website.

Exports Won't Hurt Canada's Energy
Security, LNG Sector Says
The lobbying arm of BC's liquefied natural gas industry has rejected suggestions that Canada doesn't have enough natural gas to support large-scale exports. The criticisms, in a geologist's report released [May 26^th] by the Canadian Centre for Policy Alternatives, focused on how the production levels of proposed LNG plants would outpace the sector's ability to supply them from current, known gas fields. However, the critique doesn't take into account the amount of gas that is becoming surplus because of dropping exports to the United States, David Keane, president of the BC LNG Alliance, said on [May 27^th]. Nor, he said, does it factor in the continued pace of new gas discoveries. "I think that the author is cherry-picking some of the facts," Keane said. "And I think when you look at the amount of gas resources available in British Columbia, there is a tremendous amount of resource available for production and export." Read more at The Vancouver Sun. 

Cumulative Effects Framework Being
Implemented throughout BC
Over the past 18 months, government has been working on a cumulative effects framework as part of its commitment to sustainable natural resource development, Forests, Lands and Natural Resource Operations Minister Steve Thomson said [May 26^th]. He made the comment in response to today's release of the auditor general's report, Managing the Cumulative Effects of Natural Resource Development in B.C., given that the recommendations are consistent with the direction government is taking. Cumulative effects are defined by the Province as changes to environmental, social and economic values caused by the combined effect of past, present and potential future activities and natural disturbance events. If not managed, these changes to the environment can compound and eventually harm the environment. Considering the potential of cumulative effects is an effective and environmentally sustainable way to manage natural resource development. Read the full government news release. 

Private Parties Not Liable for
Public Interest Costs
Courts are becoming increasingly resistant to attempts by third parties, specifically environmental non-governmental organizations ("ENGOs"), to insert themselves in permitting processes and judicial reviews where they are not directly involved and add no relevant expertise. The recent British Columbia Supreme Court decision in Gagne v. Sharp is a further example of this trend. This case included the additional wrinkle of an attempt by the ENGOs involved to have their court costs covered by the private company on the basis that they were acting in the "public interest".

Background
In Gagne, several individuals and ENGOs applied for standing before the Environmental Appeal Board (the "EAB") to appeal a permit amendment granted to Rio Tinto Alcan Inc. The EAB denied the petitioners standing because they were not persons aggrieved within the meaning of s. 100(1) of the Environmental Management Act, S.B.C. 2003, c. 53 (the "EMA"). The petitioners sought a judicial review of that decision, which resulted in the issue being sent back to the EAB for reconsideration. The EAB again denied the petitioners standing. That decision was itself judicially reviewed. The judicial review was dismissed and the parties were ordered to bear their own costs of that application.

Environmental Appeal Board Decisions
There were three Environmental Appeal Board decisions released in the month of May:

Wildlife Act

• Andrew Rushton v. Regional Manager, Recreational Fisheries and Wildlife Program [Final Decision – Appeal Dismissed]

Water Act

• Ellen Weir, Greg Whynacht; D'Arcy Lubin, Ian R. Poyntz; Catherine Willows Woodrow; Michael Dix (on behalf of himself and the Cowichan Lake Recreational Community Inc.) v. Deputy Comptroller of Water Rights [Final Decision – Appeals Dismissed]
• Comet Investments Ltd., Inc No. 69349 and P.G. Realty & Insurance Agency Ltd., Inc. No. 63919 v. Assistant Regional Water Manager [Consent Order – Appeals Dismissed]

Visit the Environmental Appeal Board website for more information.

Fisheries Act Private Prosecution Goes Ahead
In December 2014, Marilyn Burgoon received approval to bring a private prosecution against Executive Flight Centre Fuel Services and the Province of British Columbia for violations of the Fisheries Act related to a large fuel spill into a sensitive creek. The province took no enforcement action relating to the spill, likely because of its own role in causing it. One or the other senior levels of government usually take over private environmental prosecutions, but, as of May 19, 2015, the federal government was still dithering on this one. The entire burden of prosecuting this case may therefore fall on the public-spirited Ms. Burgoon, without help from any level of government. The case was before Justice Richard Hewson of the BC Provincial Court on May 19. Reportedly, the federal prosecutor told Justice Hewson that the federal government had not yet decided whether it would take over the prosecution. Read the full article by Dianne Saxe with Saxe Law Office – Environmental Law.

Recent Audits Reveal Wildfire Act Issues
From Forest Practices Board:
A review of forest and range practice audits from 2013 and 2014 finds about half the audits had no issues and half had non-compliance with legislation or areas requiring improvement, according to a report released [June 2^nd]. Of the problems found, one-third involved problems with wildfire prevention. "We published 23 audit reports and 12 of those found 24 practices that either didn't comply with provincial forestry legislation, or were not considered good practice," said board chair Tim Ryan. "Of most concern is the trend we are seeing in problems related to the Wildfire Act and the requirements to prevent wildfires on logging sites." Read the full article published by the FPB. 

Forest Act Amendments
Bill 25, Forests, Lands and Natural Resource Operations Statutes Amendment Act, 2015, was granted Royal Assent on May 26^th. The intent of the bill is to make it easier to regulate and manage low-impact community, recreational, industrial and commercial activity on Crown lands, streamline fees for transactions under the Land Title Act and allow non-Canadians to register as land surveyors. Sections of the bill now in force include amendments to the Forest Act affecting provisions with respect to timber sale licences, tree farm licences, forestry licences to cut, and pulpwood agreements.