Supreme Court of Canada Releases Landmark Decisions on Role of Regulatory
Bodies in Fulfilling the Crown's Duty to Consult with Indigenous Peoples
On July 26, 2017, the Supreme Court of Canada released two landmark decisions in the companion cases of Chippewas of the Thames First Nation v. Enbridge Pipelines Inc., et al. and Hamlet of Clyde River, et al. v. Petroleum Geo-Services Inc. (PGS), et al.

These cases were heard by the Supreme Court on November 30, 2016. Together, they raise the important question of the proper role of administrative boards and tribunals in ensuring the Crown's duty to consult and accommodate Indigenous people is fulfilled prior to the issuance of decisions with the potential to affect Indigenous rights.

The Court dismissed the appeal in Chippewas of the Thames First Nation v. Enbridge Pipelines Inc., et al., holding that the National Energy Board (the "Board") adequately consulted the Chippewas of the Thames First Nation (the "Chippewas") and that the potential impacts of the approved project were minimal. The Court found that the Board adequately consulted prior to approving the proposed project by taking actions, such as issuing notice to the Chippewas with regards to the Board's process and role, and granting funding to ensure that the Chippewas did, in fact, participate by filing written submissions and making oral submissions at the hearing. Read the full article by Jaimie Lickers of Gowling WLG.

No Charges Will Be Laid over Mount Polley
Dam Failure under BC Law
There will be no regulatory charges laid under BC's environmental laws for the Imperial Metals' Mount Polley tailings-dam failure in 2014.

One of the largest mining-dam failures in the world in the past 50 years, it had shaken the industry and caused concerns that aquatic life would be harmed, particularly salmon that use the Quesnel Lake system to spawn. There remains a possibility of federal charges under the Fisheries Act. The three-year deadline to lay provincial charges in a court proceeding – which would need to be approved by B.C. Crown counsel – ends Friday [August 4^th]. But a BC-federal investigation isn't complete and will not be finished by [August 4^th], Chris Doyle, BC Conservation Officer Service deputy chief, said [August 2^nd].

"It's important to note that the limitation period of a particular piece of legislation – that's just one of the considerations agencies must make during the course of these investigations," said Doyle, responding to a question on why there would be no charges under BC laws. "Other factors include the complexity of a situation and the amount of information that needs to be gathered and analyzed."

Doyle said he couldn't say when the investigation would be complete, nor would he comment on the nature of the probe. In a written statement, B.C. Environment Minister George Heyman said British Columbians should know the overall objective continues to be ensuring a "complete investigation." Read the Vancouver Sun article.

Super Power: Are Rechargeable Batteries
Transforming the Mining Sector?
Advances in consumer and industrial technology are creating a new demand for minerals such as lithium, cobalt and graphite and make mining itself more efficient and profitable.

Though global demand for minerals has declined in recent years, not least because of China's slowing fiscal growth and transition to a consumer and services-led economy, there are signs of vigour in the mining industry.

Rechargeable batteries for portable electronic devices, electric cars and other products, as well as a mounting interest in energy storage, has created a worldwide demand for lithium and other key minerals, such as cobalt and graphite. The market for these minerals is expected to balloon in the coming years as the world increases its focus on harnessing new sources of renewable energy – and energy storage becomes a priority.

At the same time, technology is transforming the mining industry, making it more efficient, more productive and ultimately more profitable. Read the full article by Charles Bond and Stuart M. Olley of Gowling WLG.

Abandoned Oil Well Battle Will Go to Supreme
Court of Canada, Lawyer Predicts
A battle over whether energy-company creditors should help pay for cleaning up thousands of abandoned oil wells may be heading to the Supreme Court of Canada.

At the centre of the dispute is Redwater Energy Corp., a small publicly traded oil producer in Alberta that filed for bankruptcy in late 2015. The receiver that's liquidating the company argues it should be able to sell its best wells and leave the worst behind for an energy industry-funded group to clean up. The province's regulator argues that buyers should have to take both good and bad wells, even if it means that the sale proceeds will be lower.

A court in Alberta sided with the receiver in May 2016, reducing companies' concerns about the legal liability of walking away from some of their oil wells. Since then, the number of inactive, abandoned, or otherwise orphaned sites has more than doubled to 3,200, according to the Orphan Well Association, the cleanup group. The provincial government has given the organization an emergency loan to fund the growing costs. Read the full Financial Post article by Allison McNeely and Kevin Orland. 

BC Ministry of the Environment: Contaminated Sites
Protocols and Guidance Documents Released
As a result of Stage 10 (Omnibus) amendments to the Contaminated Sites Regulation (CSR), the following Contaminated Sites Protocols and Guidance Documents have been updated or developed and are now ready for stakeholder comment:

• Protocol 2: Site-Specific Numerical Soil Standards
• Protocol 6: Eligibility of Applications for Review by Approved Professionals
• Protocol 11: Upper Cap Concentrations for Substances Listed in the CSR
• Protocol 13: Screening Level Risk Assessment

Read the full news bulletin on the British Columbia Environment Industry Association website.

Vandals, Thieves and Outdoor Enthusiasts
Disrupt BC Firefighting Efforts
Frontline workers risking their lives battling wildfires across BC are now adding thieves, vandals and careless outdoor enthusiasts to their list of problems.

On Saturday [July 29^th], 148 wildfires burned across BC, while 4,700 people worked with the BC Wildfire Service to control them.

But public interference with these operations has become an increasing concern, particularly in areas where there have been evacuation alerts, said Kevin Skrepnek, BC Wildfire Service's chief fire information officer. Skrepnek said there have been multiple incidents in the Cariboo Region of people accessing areas where crews are fighting fires, including people driving through these areas on off-road vehicles.

As well, people are accessing areas where there are helicopters operating and they're using boats in bodies of water and hampering water-skimming aircraft operations. Water hoses, pumps and other firefighting equipment have been vandalized or stolen, Skrepnek added.

"This is not only posing a risk to the members of the public who are doing this, but also it's potentially impacting our operations and affecting the safety of our crews as well," he said.

The BC Wildfire Service is working closely with the RCMP to combat the problem, which has been particularly bad in Williams Lake, the Chilcotin Region and along the Highway 97 corridor.

"Certainly, there's zero tolerance for any criminal activities in evacuated areas or in areas where we're operating," Skrepnek said. "Anyone suspected of theft or mischief is going to be arrested."

Skrepnek said RCMP and conservation officers have stepped up patrols in areas where interference is an issue and where crews are working. The BC Wildfire Act and Wildfire Regulation allows authorities to order people to leave an affected area. But if such behaviour continues to be a problem, they may need to implement area closures around fire sites, on lakes and in the backcountry, Skrepnek added. Those caught interfering with firefighting operations or burning a campfire during a prohibition face fines of $1,150. Read the full Times Colonist article by Nick Eagland.

Recovering the Species at Risk Act
Wildlife is central to the Canadian identity. From Indigenous communities to the urbanites of our largest cities, an overwhelming majority of Canadians want the federal government to protect and restore species at risk of extinction.

The principal federal instrument that provides for this protection is the Species at Risk Act (SARA), passed by Parliament in December 2002. SARA's purposes are to prevent extinction, to recover species currently threatened directly or indirectly by humans and to manage other species to prevent them from becoming endangered or threatened in the future. Judged against these objectives, SARA has underachieved because of withering political interest and weak policy prescriptions. Read the full article by the Institute for Research on Public Policy (IRPP) on LawNow.

Environmental Appeal Board Decisions
The following Environmental Appeal Board decisions were released in the month of July:

Wildlife Act

• Robert J. Cutts v. Deputy Regional Manager, Recreational Fish and Wildlife Program (Kootenay-Boundary Region) [Final Decision – Appeal Dismissed]
• Hans-Albert Jacobs v. Deputy Regional Manager, Recreational Fish and Wildlife Programs [Final Decision – Appeals Dismissed]
• Fraser MacDonald v. Regional Manager, Recreational Fisheries and Wildlife Program, Omineca Region [Final Decision – Appeal Dismissed]
  

Visit the Environmental Appeal Board website for more information.