The Energy Statutes Amendment Act – Expansion of
Liability for Officers and Directors in Energy Sector
As discussed in our earlier bulletin, British Columbia's Energy Statutes Amendment Act (the "ESAA") makes sweeping changes to the regulation of energy in British Columbia. Among the primary changes, the revised Energy Resource Activities Act [early consolidation] expands the potential liabilities for oil and gas or storage activities and for prescribed energy resource activities beyond the applicable permit holder to "principals" and "responsible persons."

The Energy Resource Activities Act defines "principal" to include directors and officers of a corporation as well as individuals who control, directly or indirectly, the corporation.

The term "responsible person" is defined exceptionally broadly to include people who (i) hold, or have a legal or beneficial interest in, the petroleum or natural gas rights, or the location for the applicable permit, and/or (ii) have a legal or beneficial interest in production or profits resulting from an energy resource activity authorized by the applicable permit. Read the full article by Sasa Jarvis, Sean Ralph and Jordan Ghag with McMillan LLP.

Case Summary: Government Compliance with the Reporting
Requirements Under the Climate Change Accountability
Act, S.B.C. 2007, c. 42 Is Justiciable
Sierra Club of British Columbia Foundation v. British Columbia (Minister of Environment and Climate Change Strategy), [2023] B.C.J. No.80, 2023 BCSC 74, British Columbia Supreme Court, January 17, 2023, J.S. Basran J.

The nature and extent of the B.C. government's reporting on progress towards its climate change targets is justiciable because the question involves determining the reasonable interpretation of legislation establishing the obligations of a statutory decision maker. The Court adjudicated the matter and held that the Minister reasonably complied with the statutory obligation to describe British Columbia's plans to continue progress towards its GHG emissions reduction targets.

On judicial review, Sierra Club sought declarations that the British Columbia Minister of Environment and Climate Change Strategy breached his statutory reporting obligations under the Climate Change Accountability Act, S.B.C. 2007, c. 42.

Under the Climate Change Accountability Act, the Minister is obligated to prepare an annual climate accountability report. Read the full article by Emilie LeDuc with Harper Grey LLP.

Federal Government Releases Proposals Relating to
Clean Technology and Resource Tax Incentives
On March 28, 2023, Canada's Deputy Prime Minister and Minister of Finance, Chrystia Freeland, delivered the Liberal Government's federal budget, "A Made-in-Canada Plan: Strong Middle Class, Affordable Economy, Healthy Future" ("Budget 2023"). Among other things, Budget 2023 proposes to:

• introduce the investment tax credit for clean hydrogen production ("CH Tax Credit") proposed in the 2022 Fall Economic Statement, which is a between 15% and 40% refundable credit (depending on the carbon intensity of the hydrogen produced) available in respect of the cost of purchasing and installing eligible equipment;
• expand the availability of the Clean Technology Investment Tax Credit ("CTI Tax Credit") proposed in the 2022 Fall Economic Statement, which is a 30% refundable credit, to certain geothermal energy systems.

Read the full article by Jeremy Ho, Matthew Kraemer, Colton Dennis and Kathryn Walker with McCarthy Tetrault LLP.

BC's New Energy Action Framework and Impacts on
LNG Development and the Energy Sector
On March 13, 2023, British Columbia's Minister of Environment and Climate Change Strategy and Minister of Energy, Mines and Low Carbon Innovation issued an Environmental Assessment Certificate (EA Certificate) under the Environmental Assessment Act (2002) (British Columbia) for the Cedar LNG Project, which proposes to produce about three million tonnes of liquefied natural gas (LNG) per year. This was promptly followed by a concurring Decision Statement (IAA Decision) under the Impact Assessment Act (Canada) from the Federal Minister of the Environment on March 15, 2023.

Then on the heels of this Cedar LNG Project announcement, the Government of British Columbia (Province) announced on March 14, 2023 a new energy action framework (Framework). There have been ongoing questions and concerns as to whether the approval of any new LNG projects in the Province, including the Cedar LNG Project, can be compatible with the Province's climate goals and targets to reduce greenhouse gas emissions. The Framework would attempts to address these concerns by proposing new requirements for future LNG facilities and British Columbia's oil and gas industry participants to align with the Province's emissions reductions goals. Read the full article by Dave Nikolejsin, Kerri Howard, Kimberly J. Howard and Ashley Urch with McCarthy Tetrault LLP.

The First Nation-Led Case That Could Transform
B.C.'s Mining Claims System Gets Underway
[Mineral Tenure Act]
Lawyers for a northern coast First Nation opened their case Monday in B.C. Supreme Court, where they are asking a judge to cancel seven mining claims on Banks Island.

The Gitxaala Nation's judicial review is the first, big test for the B.C. government, which adopted the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) in 2019.

The hearing, scheduled to last through April 14, began late with a traditional prayer, after a bigger courtroom was found to hold the crowd of Gitxaala Nation supporters and others interested in a case that could transform the way mining claims are handled.

Under the current system, anyone as young as age 18 who lives in or is allowed to work in Canada can pay $25 to register for a "free miner certificate." They can then file a mineral claim for as low as $1.75 per hectare, subject to costs for renewals, permitting, development and extraction. Read the BIV article.

B.C. Hydro's Integrated Resource Plan, EPA Renewals
Other Key Developments in B.C.'s Power Sector in 2022
Several developments relating to BC Hydro continue to lay the groundwork for BC's energy future, including the completion of Phase 2 of the province's comprehensive review of the provincial utility and the submission by BC Hydro of its first integrated resource plan (IRP) in almost a decade.

While BC Hydro's new IRP works its way through regulatory review, the utility continued to advance construction of its Site C hydroelectric facility (Site C) while reaching an important settlement with litigants challenging the project.

BC Hydro expects to have sufficient energy and capacity until the early 2030s, and accordingly there continues to be no new material procurement opportunities for independent power producers (IPPs) in BC. However, BC Hydro does intend to renew existing electricity purchase agreements (EPAs) for clean or renewable projects set to expire before April 1, 2026 to ensure that these facilities continue to be available if their generation is required to meet domestic needs in the future. Read the full article by Racheal Carlson, Alexandra Comber, Maureen Gillis, Genevieve Loxley and Sven O. Milelli with McCarthy Tetrault LLP.

Four Trends in Indigenous Equity
Participation in Canada
It is near impossible for any energy, mining or infrastructure projects to be successfully developed in Canada today without securing support and consent from affected Indigenous Peoples. In order to secure that support and consent, more Indigenous Peoples are interested in equity participation in such projects, and more project developers or facility owners are interested in partnering with such Indigenous Peoples to facilitate economic reconciliation and to manage project risk.

Indigenous equity helps to align the interests of the parties in the project or facility, share direct benefits, and build capacity. As a result, numerous financing and other funding programs have been developed to support such investments, but are not yet being fully deployed. We expect to see much more activity in such transactions moving forward. Read the full article by Amy Carruthers, Amy Barrington and Erin McKlusky with Fasken Martineau DuMoulin LLP.

British Columbia's CleanBC Plan:
What You Need to Know
This article forms part of our Power Perspectives 2023 Publication. Download the full publication here.

In 2022, the BC government made further investments in its CleanBC initiative, the climate action plan introduced in 2018 that aims to reduce the province's greenhouse gas ("GHG") emissions by 40% below 2007 levels by 2030.

In the 2022 provincial budget, the BC government pledged more than $1.2 billion in further funding for CleanBC, adding to its existing $2.3 billion commitment to CleanBC. Among other investments, the budget allocated $120 million in funding to continue the Climate Action Tax Credit, designed to offset the impact of the province's broad-based carbon taxes on lower- and middle-income households. CleanBC also includes an Industrial Incentive Program that reduces carbon tax costs for facilities that can demonstrate that they are among the lowest emitters in their sector compared to GHG benchmarks. On April 1, 2022, BC's carbon tax rate rose from C$45 to $50 per tCO₂e. Read the full article by Racheal Carlson, Alexandra Comber, Maureen Gillis, Genevieve Loxley and Sven O. Milelli with McCarthy Tetrault LLP.

BC's Agreements with Blueberry River and Other
First Nations Reopen Land to Development,
while Minimizing New Disturbances
On January 18, 2023, the Province of British Columbia reached an agreement with Blueberry River First Nations that will lead to broad changes to land management and resource development in the northeast of British Columbia. Two days later, on January 20, 2023, the Province announced agreements with four other Treaty 8 First Nations (Doig River First Nation, Halfway River First Nation, Fort Nelson First Nation and Saulteau First Nations) covering similar objectives.

The agreements, made publicly available on March 10, 2023, will result in significant changes in how permits are issued in northeast British Columbia, and where and how development may occur, with particular implications for the Petroleum and Natural Gas ("PNG") and forestry industries.

On March 6, 2023, the B.C. Ministry of Water, Land and Resource Stewardship published a Watershed Security Strategy and Fund Intentions Paper (Intentions Paper). The Intentions Paper marks the mid-point of the development of the Strategy, following the Province's Discussion Paper and What We Heard Report in January and March 2022, respectively. Read the full article by Rick Williams, Chris Roine, Roark Lewis and Stephanie O'Connell with Borden Ladner Gervais LLP.

Bill 22 Revisited: The Risks of a Change of Control
Technically, "Bill 22" refers to the Forest Statutes Amendment Act, 2019, brought into force May 30, 2019. In much the same way that – in spite of its technical meaning – "Bill 13" became a colloquial reference to the Timber Harvesting Contract and Subcontract Regulation and related provisions of the Forest Act, "Bill 22" has similarly come to collectively refer to those provisions in Part 4 of the Forest Act that regulate forest tenure transfers in BC ("Part 4") and the related Disposition and Change of Control Regulation (the "Regulation"). While both Part 4 and the Regulation were substantially amended as a consequence of Bill 22, neither is, in fact, the actual "Bill 22". Read the full article by Jeff Waatainen in the Spring 2023 issue of the BC Forest Professional.

First B.C. Carbon Management Blueprint Released
The B.C. Centre for Innovation and Clean Energy (CICE) has released the B.C. Carbon Management Blueprint, a first of its kind study to help shape British Columbia's emerging carbon management sector. The study confirms that alongside carbon removal efforts, B.C. must scale up carbon emission avoidance strategies to meet 2050 net-zero targets and remain in line with a 1.5°C future. This includes investment in market accelerants, policies, and the growth of innovative, made-in-BC solutions.

Produced in partnership with Deloitte Canada, the B.C. Carbon Management Blueprint provides an understanding of existing carbon management approaches, the value chain, and the market participants that drive the supply and demand of these solutions. Read the full article provided by the BC Centre for Innovation and Clean Energy, published via Newswire.ca.

Case Summary: The Province Does Not Need to Prove
Fire Control Efforts Were Necessary or Effective to
Recover Such Costs Under the Wildfire Act
Canadian National Railway Co. v. British Columbia, [2022] B.C.J. No. 2510, 2022 BCSC 2263, British Columbia Supreme Court, December 28, 2022, N. Sharma J.

CNR sought to avoid paying the costs of a controlled burn that the Province undertook during a wildfire, as well as costs for damage to forest lands resulting from the controlled burn. The wildfire was caused by CNR through railway operations carried out in contravention of the Act. CNR argued it should only be responsible for fire control costs which the Province proved were necessary and effective. The Court held CNR's interpretation did not accord with the language and scheme of the Act, nor with the intention of the legislature. The disputed costs were an indirect result of the fire caused by CNR and were recoverable under the Act.

On June 11, 2015, a wildfire was sparked south of Lytton, British Columbia while CNR was cutting rails. The BC Wildfire Service responded, and attended the fire until September 3, 2015. During that time, the BC Wildfire Service employed a controlled burn that achieved fire control objectives, but enlarged the burn area. Read the full article by Emilie LeDuc with Harper Grey LLP.

Environmental Appeal Board Decisions
The following Environmental Appeal Board decisions were made recently:

Environmental Management Act

• Peace River Coal Inc. v. Director, Environmental Management Act [Decision On Application to Cross-Examine a Witness – Ordered]
• Gibraltar Mines Ltd. v. Director, Environmental Management Act [Document Production Decision – Documents Produced as Set Out]

Wildlife Act

• Marc Hubbard v. Director of Fish and Wildlife, Ministry of Forests [Method of Hearing Decision – To Be Heard by Oral Hearing]

Visit the Environmental Appeal Board website for more information.

Forest Appeals Commission Decisions
The following Forest Appeals Commission decision was made recently.

Wildfire Act

• Lone Prairie Livestock Association v. Government of British Columbia [Final Decision – Determination Set Aside]

New Online Tool Helps Workers and Employers
Manage Risk by Delivering a Custom List of
Health and Safety Resources
from WorkSafeBC
It can be challenging for workers and employers to find health and safety information that applies to their workplaces. My health and safety resources is a simple tool that provides a streamlined approach to finding information in three straightforward steps. It features a customizable report format that you can download, interact with, and use to track progress for continual improvement. Read the full WorkSafeBC article.

WorkSafeBC Report Reveals Claims Related to
Violence Jumped 25% in Five Years
WorkSafeBC is suggesting safety professionals think about violence prevention strategies following the release of a report that shows workplace claims related to violence increased 25 percent in the past five years. "To see a jump like this, 25% over a small handful of years, requires some discussion, it's an opportunity to talk about what might be happening here, and how it can be prevented," says Barry Nakahara, senior manager of prevention field services at WorkSafeBC. Read the full article by Shane Mercer with Canadian Occupational Safety.

Application of Statutory Bar to Workplace
Bullying and Harassment Claims
Canadian workers' compensation regimes are defined by the "historic tradeoff"—workers gain immediate and consistent benefits coverage under mandatory, no-fault statutory insurance schemes funded by employers and, in exchange, give up their right to sue employers for workplace accident and injury claims. Here, we examine how the statutory bar is applied to civil claims for damages arising from bullying, harassment, discrimination and violence in the workplace. Canadian courts have developed a fairly consistent approach to dissecting such actions to identify what elements of the claim may proceed and to remove the parts of the claim that are based on workplace accidents or injuries and are subject to the historic tradeoff. Read the full article by Christine Plante, Michael VanderMeer and Celina Glabus of Bennett Jones.

BOD Decision: Interest on Delayed Benefits
On January 25 and March 29, 2023, WorkSafeBC's Board of Directors approved changes to policy item #50.00, Interest, in the Rehabilitation Services & Claims Manual, Volume II, to reflect the legislative amendments regarding interest made by Bill 41, the Workers Compensation Amendment Act (No. 2), 2022. The amended policy applies to all decisions, including appellate decisions, made on or after April 3, 2023. You may also review the complete Resolution. Read the article on the WorkSafeBC website.

OHS Policies/Guidelines – Updates
April 3, 2023
In accordance with the Workers Compensation Amendment Act (No. 2), 2022, amendments to the following sections took effect on April 3, 2023.

• Part 4 Division 10 – Compensation Payments and Other General Matters
  • Section 231.1 Payment of Interest
• Part 7 Division 5 – Board Inquiry Powers
  • Section 301 Health professional assistance to appeal tribunal
  • Section 302 Health professional assistance in specific cases

April 6, 2023
Guidelines – Workers Compensation Act

Editorial revisions were made to the following guideline:

• Part 2 Division 1 – Interpretation and Purpose
  G-P2-14 About OHS Guidelines

Guidelines – Occupational Health and Safety Regulation

Editorial revisions were made to the following guidelines:

• Part 18 Traffic Control
  G18.6.2(1) Traffic control person training
• Part 19 Electrical Safety
  G19.27 Specially trained