To help give you a clearer picture of this landscape, McCarthy Tétrault's Energy & Resources Industry experts authored the article Energy transition and critical minerals in Canada, appearing in the April 2023 issue of "Financier Worldwide." Read the full article by Christopher Langdon, Kimberly J. Howard and Ashley Urch with McCarthy Tétrault.

$14.5 Billion Coastal GasLink Pipeline Issued Stop
Work Order for Failing to Control Sediment
Coastal GasLink says it's taking steps to mitigate problems during the spring melt in northern B.C.
TC Energy's $14.5 billion Coastal GasLink natural gas pipeline has been cited for more non-compliance of requirements to control sediment and erosion, this time into streams and rivers.

In response, the company says it's taking steps to mitigate problems during the spring melt in northern B.C.

Last week, the B.C. Environmental Assessment Office (EAO) ordered a three-kilometre stretch of the pipeline under construction in northern B.C. shut down because sediment-laden water was reaching a tributary of the Anzac River. Read the Vancouver Sun article.

Remote First Nations Can Breathe Healthier
Air with Reduced Diesel Use
More remote First Nations in British Columbia can move toward clean energy to power their homes, economies and daily lives with a provincial investment in the Community Energy Diesel Reduction (CEDR) program.

"First Nations throughout B.C. are taking a leadership role in reducing carbon pollution, and our government is there to partner with them," said Premier David Eby. "This new investment will help even more remote communities build and expand clean-energy projects that move our province away from diesel and toward a cleaner, brighter future."

The Premier made the announcement at the annual conference of the First Nations Major Project Coalition where more than 1,300 delegates and attendees are focusing on economic development that aligns with First Nations values, including clean energy. Read the government news release.

Promising Results from Tidal-Energy Floating Turbine,
Designed to Power Remote B.C. Communities
A tidal energy project on remote West Thurlow Island could help off-grid coastal communities wean themselves off diesel generators and switch to clean, renewable energy, researchers say.

The University of Victoria's Pacific Regional Institute for Marine Energy Discovery (PRIMED) said a floating turbine on the east side of West Thurlow, about 35 kilometres off Campbell River, is showing promising early results. Read the Vancouver Sun article.

That's the finding of a review by the Canada West Foundation (CWF) of projects moving through the federal government's IAA environmental review process.

"An analysis of all projects submitted under the federal Impact Assessment Act (IAA) shows that three and a half years after the act came into force, progress is slow and almost all projects are still in very early stages of assessment," the CWF report finds.

Before the IAA replaced the Canadian Environment Assessment Act in 2018, former Environment Minister Catherine McKenna said the new environmental review process would have legislated timelines. Read the BIV article.

The Fisheries Act – Not Just for Fishermen!
In Canada, jurisdiction over the environment is shared by all three levels of government. A key piece of federal environmental legislation which often takes a back-seat in terms of awareness to provincial environmental protection legislation is the Fisheries Act ("FA"). The FA provides for the management and control of fisheries and the conservation and protection of fish and fish habitat, including by preventing pollution. The far-reaching scope of the FA is often overlooked.

Section 36(3) of the FA has the potential to impact activities undertaken in remote as well as urban areas where one would not expect there to be any kind of "fishery". This provision of the FA prohibits any person from depositing (or permitting the deposit of) a "deleterious substance" in "waters frequented by fish" or in any place under any conditions where the deleterious substance or any other deleterious substance that results from the deposit of the deleterious substance may enter any such water. Deleterious substance is defined very broadly and includes any substance that, if added to any water, would degrade or alter or form part of a process of degradation or alteration of the quality of that water so that it is rendered or is likely to be rendered deleterious to fish or fish habitat or to the use by man of fish that frequent that water. "Deleterious substance" thus captures substances ranging from highly toxic substances all the way to, for example, naturally occurring soil sediment. In addition, the courts have held that the environmental concern over "death by a thousand cuts" requires that any deposit that is deleterious be prohibited, even in the smallest of concentrations; a de minimis deposit of a deleterious substance won't get you of the hook. Read the full article by Ralph Cuervo-Lorens, Talia Gordner and Martin Thiboutot with McMillan LLP.

Judge Rules Against B.C. Logging Company's Request to
Probe Environmentalists' Social Media Info
A B.C. Supreme Court judge has rejected a logging company's request for a court order allowing them to probe into the social media of members of a Kootenay environmental group.

Madam Justice Lindsay Lyster released her decision in favour of Last Stand West Kootenay last week, saying granting the request by Cooper Creek Cedar would "not be in the interests of justice" and would suppress legitimate, peaceful protest.

The company had sought a so-called Norwich order requiring a third-party, such as a social media company, to provide information. Read the Vancouver Sun article.

Recent Charter Climate Litigation in Canada Raises
Key Questions Over Climate Change Duties
In Mathur v Ontario, the climate litigation filed against the Ontario government by seven young people was dismissed, but not without clarifying some key points. This litigation forms part of a wider trend by youth to hold governments accountable on climate action.

Overview
Earlier this month, the Ontario Superior Court of Justice released Reasons for Judgment in the closely watched climate change action of Mathur v Ontario. The applicants, a group of youths, commenced a suit against the Province of Ontario alleging that the Province had breached the Canadian Charter of Rights and Freedoms (the Charter) by abdicating its responsibility to address climate change.

In 2020, the Province lost a preliminary motion to have the claim dismissed on the basis that it was plain and obvious that the claim did not present a reasonable cause of action. However, after a full hearing on the merits, Justice Vermette agreed with the Province that its actions in addressing climate change did not violate the applicants' s7 Charter rights to life and security of the person or their s15 right to equality.

Read the full article by Simon Konsta and Scott Harcus, published on DAC Beachcroft LLP.

Province and Feds Agree to Plant
37M New Trees in B.C.
B.C.'s canopy is set to become a bit greener in the years ahead as the province and feds have inked an almost $80-million deal to plant 37 million new trees.

It's the second such agreement under the federal government's pledge to plant two billion trees across the country over 10 years.

"Nature-based climate solutions – those initiatives that leverage the capabilities of the world around us to help capture and sequester carbon while reinforcing and assisting with biodiversity loss and the restoration of habitat are a critical part of this plan," said Natural Resources Minister Jonathan Wilkinson, announcing the agreement at North Vancouver's Maplewood Conservation Area Tuesday [April 18]. "And there is no greater ally in our fight against climate change than our forests." Read the BIV article.

The "Forever Chemicals": Dark Waters in Canada?
Often referred to as "the next asbestos," per- and polyfluroakyl substances (PFAS) are a group of over 4,700 synthetic chemicals consisting of a fluorinated carbon chain that have been used for several decades in a variety of applications due to their stability and repellant abilities (ranging from non-stick cookware and water repellant fabrics to cosmetics and firefighting foams). Increasing awareness surrounding the harmful effects of PFAS has led governments of all levels to regulate them and attempt to reduce their use. Coupled with the recent emergence of PFAS-related litigation in Canada, the risks associated with PFAS render them contaminants of concern for more than just the environmental lawyer.

As is the case with many hazardous substances, PFAS were once believed to be safe. It has since been shown they are potentially harmful to both humans (having been linked to birth defects and cancer, among other diseases) and the environment. Making matters worse, the stability of the chemical bonds, that make PFAS attractive in the first place, render them largely incapable of breaking down naturally. Read the full article by Braeden Stang and Rick Williams with Borden Ladner Gervais LLP, published in the April edition of BarTalk.

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

Environmental Management Act

• Kalia Resources Corp. & Joseph Kitzke v. Director, Environmental Management Act [Preliminary Decision on Method of Hearing – To Proceed by Way of Written Hearing]

Water Sustainability Act

• Robert Couturier and Jodi Lynne Couturier v. Assistant Water Manager [Preliminary Issue of Jurisdiction – Allowed in Part]

Wildlife Act

• Maria Origoni v. Director of Fish and Wildlife, Ministry of Forests [Settlement Order – Appeal Dismissed Without Costs]

Visit the Environmental Appeal Board website for more information.

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

Forest and Range Practices Act

• Halfmoon Bay Ventures Corp. v. Government of British Columbia [Preliminary Decision – Application Dismissed]

Visit the Forest Appeals Commission website for more information.

Proposed Policy Amendments Regarding
Asbestos Abatement Licensing
In March 2022, the British Columbia Legislature passed Bill 5 to introduce certification and licensing requirements in the Workers Compensation Act for managing asbestos abatement work. At issue is the addition of a new policy item in the Prevention Manual to reflect the implementation of Bill 5, and to support the asbestos licensing model being developed by WorkSafeBC's Prevention Services. Proposed amendments to Part 6 of the Occupational Health and Safety Regulation, relating to asbestos certification and licensing, are currently out for public hearing. Our Policy, Regulation and Research Department is releasing a discussion paper and draft policy for public consultation relating to asbestos abatement licensing. You're invited to provide feedback until 4:30 p.m. on Wednesday, May 10, 2023. The discussion paper, draft policy, and information on how to provide feedback can be accessed through the following link:

• Proposed amendments regarding asbestos abatement licensing

New Public Health Orders
The Public Health Office (PHO) recently issued the following orders:

• Hospital and Community (Health Care and Other Services) COVID-19 Vaccination Status Information and Preventive Measures – April 6, 2023 (PDF, 542KB)
• Residential Care COVID-19 Preventive Measures – April 6, 2023 (PDF, 495KB)

Visit the PHO website to view these and other related orders and notices

OHS Policies/Guidelines – Updates
May 1, 2023

Workers Compensation Act

In accordance with the Workers Compensation Act Amendment Act (No. 2), 2022, the following sections took effect on May 1, 2023.

• Part 8 Division 7 – Fair Practices Commissioner
  • Section 355 Definitions
  • Section 356 Fair practices commissioner
  • Section 357 Annual report of fair practices commissioner