Energy Resource Activities Act Amendments
All remaining amendments in Bill 37, the Energy Statutes Amendment Act, 2022, were brought into force on September 1, including retitling the Oil and Gas Activities Act to the Energy Resource Activities Act. These amendments are intended to provide a more cohesive framework for the regulation of hydrogen projects by restructuring and renaming the BC Oil and Gas Commission as the British Columbia Energy Regulator, and expanding its regulatory responsibilities to include hydrogen.

Bill 37 amendments are also intended to clarify the use of underground storage spaces for carbon capture and storage. Other amendments expand liability beyond permit holders for orphaned oil and gas activity sites to include others who benefited from site operations, in order to help pay for restoration of the site. Several consequential amendments were made to update the references in other acts, and in regulations under the Energy Resource Activities Act.

Canada Releases Long-Awaited Draft Legislation for
Tax Credits Supporting the Clean Energy Sector
On August 4, 2023, the Canadian federal government released a significant package of draft legislation to implement various tax measures, update certain previously released draft legislation and make certain technical changes. Included in this package is draft legislation for the Clean Technology Investment Tax Credit (Clean Technology ITC) first announced in the 2022 Fall Economic Statement, the labour requirements applicable to various clean energy investment tax credits, legislative amendments to the Carbon Capture, Utilization and Storage Investment Tax Credit (CCUS ITC) announced in the 2023 Federal Budget and various other tax supports for the clean energy sector announced in the 2023 Federal Budget or earlier (Proposals).

The news release that accompanied the Proposals invites interested parties to make submissions with respect to the Proposals by September 8, 2023. Read the full article by Edward Rowe, Colena Der and Jacob A. Sadikman with Osler, Hoskin & Harcourt LLP.

"The Buck Stops at the Top" – Lessons Learned: Mining Company
Executive Found Guilty of Environmental Offences
On July 7, 2023, the British Columbia Provincial Court (Court) found the president and chief operating officer of a mining company guilty of several environmental offences arising from the discharge of waste from the company's mining operations on Banks Island, British Columbia. The decision provides a sober reminder and some lessons learned to directors, officers and employees that they may be held personally liable for their company's compliance with environmental laws.

Culpability for environmental offences – such as a spill or operating outside of an applicable regulatory standard – typically falls on the corporation. Directors or officers of a company infrequently face primary liability for violations of environmental laws because environmental harm is typically the result of systemic problems in how the company operates, rather than any one person's conduct. Regulatory authorities rarely pursue charges against employees who are merely doing their job. Nonetheless, individual directors, officers and employees of a company can be held personally liable for environmental offences in certain circumstances. Read the full article by Tony Crossman, Rochelle Collette and Nicholas Tollefson with Blakes.

Oil and Gas Sector Says New Data Shows It Can
Both Hike Output and Lower Emissions
Canada's oil and gas sector is pointing to new government numbers that it says proves the industry can increase production and lower emissions at the same time.

The analysis by industry group Canadian Association of Petroleum Producers (CAPP) of the most recently available federal production and emissions data shows emissions from the country's conventional oil and natural gas sector fell 24 percent in the last decade.

For natural gas, methane emissions fell by 38 per cent between 2012 and 2021 although production rose by 35 per cent. Read the full article published by BNN Bloomberg.

Fort Nelson Oil and Gas Landfill Gets Warning Letter
An Alberta company that specializes in environmental waste management has been given a warning by the BC Environmental Assessment Office over the management of a landfill used for hazardous materials from oil and gas activities near Fort Nelson.

Secure Energy Services (TSX:SES) was issued a warning letter over its Northern Rockies Secure Landfill project. The facility was previously owned and operated by Tervita Corporation, which Secure Energy acquired through a merger in July 2021. Read the BIV article.

Canada Releases Vision for Transforming Electricity
Sector and Clean Energy Regulations
On August 10, the federal government issued its proposed Clean Electricity Regulations (CERs). The CERs introduce a prohibition against electricity generation units emitting more than an annual average of 30 tonnes of carbon emissions per GWh of electricity generated over a calendar year.

The proposed CERs would apply to all units with a capacity of 25 MW or greater that generate electricity using fossil fuels, and that are connected to an electricity system that is subject to NERC reliability standards. This applicability criteria indicates that the government is focusing on what it views as major sources of GHG emissions that are typically deployable for baseload generation, rather than smaller units used mainly behind-the-meter for self-consumption and/or used in remote or Northern locations. Read the full article by Stephen Furlan, Joseph R. Palin, Dave Nikolejsin, Reena Goyal and Danyal M. Bajwa with McCarthy Tétrault.

Canada's Critical Mineral Advantage and Its Emerging
Role as a Key Player in the EV Supply Chain
The worldwide quest to decarbonize the economy is driving unprecedented demand for electric vehicles and the critical minerals needed to power them, and Canada is perfectly placed to thrive.

After years of moving at a glacial pace, the global energy transition has now kicked into high gear.

In a series of climate change conferences following the landmark Paris Agreement made in December 2015, countries have gradually escalated their efforts to meet the commitments set out in the accord, whose 200 signatories promised to keep global warming below 2 degrees Celsius this century, and ideally below 1.5 degrees, to avoid the worst effects of climate change. Russia's invasion of Ukraine in 2022 caught Europe and the world unprepared leaving many western nations with a large hole in their energy supplies. This shock created an immediate and desperate need to lessen our dependency on fossil fuels. Read the full article from Gowling WLG.

BC Energy Regulator Announcements
The following BC Energy Regulator announcements were posted recently:

• TU 2023-12 – New Mandate Activities in Application Management System (AMS)
• TU 2023-13 – Guideline for Security Management Regulation Released
• IU 2023-15 – BC Energy Regulator Mandate Expands on September 1

Visit the BC-ER website for more information.

Management of Habitat for Species at Risk under FRPA
The Forest Practices Board has released an investigative report about the management of habitat for species at risk under the Forest and Range Practices Act (FRPA). The report examines the BC government's use of tools available under FRPA to protect habitat for species at risk and forest licensees' compliance with legal requirements.

In this investigation, the Board looked at a sample of areas where legal measures are in place for habitat protection and found that operational-level forest planning and practices were consistent with those legal requirements. Read the Forest Practices Board news release.

BC Court of Appeal Clarifies Environmental Due Diligence
Requirements When Assigning Purchase Agreements
The Court of Appeal in 0694841 B.C. Ltd. v. Alara Environmental Health and Safety Limited clarified the environmental due diligence requirements when assigning a purchase agreement to another party.

0694841 B.C. Ltd. ("069") entered into a purchase agreement for commercial property. As part of its due diligence, 069 hired Alara Environmental Health and Safety Limited (Alara) to conduct environmental assessments. Alara found that the property was free from environmental contamination. In its report, Alara included a disclaimer extinguishing itself from liability to third parties if the report was used by any entity, other than 069. Read the full article by Nicola Virk with Harper Grey LLP.

Understanding BC's New Soil Relocation Process
Planning to move soil for an upcoming project? You may be impacted by recent changes to BC's soil relocation process.

The province has officially moved away from 'soil relocation agreements', introducing new amendments to the Contaminated Sites Regulation which came into effect on March 1, 2023. A few of the major changes are explored below.

Soil Testing
Soil testing must now be conducted whenever 30 or more cubic meters of soil is relocated from a site where "commercial or industrial uses" have occurred. This testing will determine whether the soil is contaminated or uncontaminated, and depending on the soil quality, a different relocation process may apply.

Contaminated Soil
The relocation of contaminated soil is now regulated by the Environmental Management Act (EMA) and the Waste Discharge Regulations. Anyone planning to relocate contaminated soil must apply for waste discharge authorization under Part 2 of the EMA.

Read the full article by Nicola Virk with Harper Grey LLP.

Indigenous Law Update: What the B.C. Natural Resource
Sector Should Know About "Non-Treaty" Agreements
Summary
Government has increasingly turned to "non-treaty" agreements with Indigenous groups in British Columbia (B.C.). These "non-treaty" agreements (and the processes used to negotiate them) do not benefit from oversight by the B.C. Treaty Commission, so they can raise greater risks for businesses and tenure holders. This article discusses these risks, and some techniques that can be used to mitigate them.

Background
The B.C. Treaty Commission was established in 1992 to facilitate treaty negotiations among the Governments of B.C., Canada and participating Indigenous groups. At the time, it was considered an essential process to resolve the complex issue of Indigenous land claims, and the related question of who has authority to govern what in B.C. While the issues were not unique to B.C., they were most pronounced in B.C. given that historic treaties were never entered into for the majority of the province.

Yet, after more than 30 years, and more than a billion dollars in negotiating costs, the treaty commission process has produced very limited success. It has yielded only three modern treaties that are in implementation today. This is a small percentage of the more than 200 First Nations in B.C., and the more than 100 bands that have participated directly or indirectly in the treaty commission process.

Read the full article by Joanna Dawson, Cory Kent, Robin M. Junger, Julia Loney, Tim Murphy and Joan M. Young with McMillan LLP.

Bill S-5 – What You Need to Know
On June 13, Bill S-5, Strengthening Environmental Protection for a Healthier Canada Act, received Royal Assent. These amendments represent Canada's commitment to environmental protection and are the first comprehensive overhaul of the Canadian Environmental Protection Act (CEPA) since its inception in 1999. These changes are likely to have considerable effects on stakeholders in industries that utilize substances deemed toxic or that have the potential to be deemed as such. Read the full article by Mario Delgado with Whitelaw Twining.

Canada Broadens Pushback on 'Unfair,
Unjust' U.S. Softwood Lumber Duties
U.S. says Ottawa's 'stumpage fee' system amounts to unfair subsidies
Prime Minister Justin Trudeau's government is broadening its pushback against the latest U.S. decision to keep imposing duties on Canadian softwood lumber.

Trade Minister Mary Ng says Canada is launching challenges under the North American free-trade deal as well as before the U.S. Court of International Trade.

Nine days ago, Ottawa sought a judicial review of last month's Treasury Department assessment of the levies, which provided modest relief but maintained the combined duty rate at 7.99 per cent.

Ng says Canada remains open to negotiating a resolution to the decades-old dispute, which she calls "unfair, unjust and illegal," while arguing it increases housing costs. Read the CBC article.

Registering and Trading Compliance Carbon Credits
on British Columbia's Carbon Registry
What are compliance carbon credits? Carbon credits are traded on two kinds of markets: compliance markets and voluntary markets. Compliance markets are mandated and regulated through legislation and allow entities to purchase carbon credits with the goal of complying with their emissions reduction obligations. Voluntary markets function outside of a compliance regime and enable companies to voluntarily reduce emissions without an intended compliance purpose.

In British Columbia (BC), compliance carbon credit trading and use is governed by the Greenhouse Gas Industrial Reporting and Control Act (GGIRCA). Read the full article by Courtney Burton and Stewart Maier with Dentons.

2023 Wildfire Season: A Wake-up Call for Climate
Change Action and Transformative Reconciliation
The situation in Yellowknife, one of Canada's largest sub-Arctic cities, is a nightmare unfolding. Authorities have evacuated the entire population, an unparalleled situation in its history. As an Indigenous rights lawyer, the significance of this crisis for our legal system, environment, and relationship with the land is not lost on me. As we endure another record-breaking wildfire season, we must face the devastation and recognize the urgency of unified action.

Turtle Island's Record-Breaking Battle with Fire
Flames consume vast stretches of the Canadian landscape, threatening and besieging not only the capital city of the Northwest Territories but also causing evacuations in Dettah, N'dilo, Lytton, Adams Lake, West Kelowna, and other surrounding areas. These ferocious fires symbolize the horrors that climate change can unleash. It's not merely trees and structures in the path of destruction; it's an entire way of life at risk.

Read the full article by Nick Leeson with Woodward & Company LLP.

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

Water Sustainability Act

• Just Fish-Inn Inc. v. Assistant Water Manager [Dismissal Order – Appeal Dismissed]

Visit the Environmental Appeal Board website for more information.

Workers Compensation Act Amendments 
Effective September 1, 2023, amendments made to the Workers Compensation Act by 2022 Bill 5, the Workers Compensation Amendment Act, 2022, were brought into force. The amendments require asbestos abatement contractors to be licensed to operate in British Columbia, and authorize WorkSafeBC to create a mandatory safety training program for workers and contractors who work with materials that may contain asbestos.

Upcoming Regulation Changes for Hazardous Drugs, 
Asbestos Abatement, and First Aid
Employers in many industries will be affected by upcoming changes to the Occupational Health and Safety (OHS) Regulation. This information gives employers an overview of these changes; however, you should review the relevant parts of the OHS Regulation to determine what updates are needed to your workplace health and safety policies and procedures. Read the full article by Sarah Ripplinger in the Fall 2023 issue of WorkSafe Magazine.

What Can You Do to Keep Your
Workers Safe on the Road?
Keeping your workers safe while they're behind the wheel starts long before keysare in the ignition.As an employer, you need to first identify driving-relatedhazards they face while driving for work. Then you must take the steps to reduce the risks to your workersand help keep them safe.Whether your workers drive full time, part time, oronly occasionally, road safety is an important part of your health and safety responsibilities. Read the full article in the Fall 2023 issue of WorkSafe Magazine.

2023 New or Revised ACGIH Threshold
Limit Values and BC Exposure Limits
The Occupational Health and Safety Regulation provides that, except as otherwise determined by WorkSafeBC, an employer must ensure no worker is exposed to a substance exceeding the Threshold Limit Values (TLVs) prescribed by the American Conference of Governmental Industrial Hygienists (ACGIH). Each year, the ACGIH publishes a list of substances for which they have set new or revised TLVs. When the new or revised TLVs for substances are adopted, these TLVs are referred to as BC Exposure Limits (ELs). Read the full article on WorkSafe BC.

Proposed Amendments to Policy on Cancer as a
Compensable Consequence
from WorkSafe BC
For cancer to be considered a compensable consequence of a traumatic injury, WorkSafeBC policy sets out five criteria that must be met. Our Policy, Regulation and Research Department is releasing a discussion paper with options on proposed amendments to update this policy to reflect current medical literature. You're invited to provide feedback on the discussion paper, with options on proposed amendments to policy on cancer as a compensable consequence, until 4:30 p.m. on Friday, October 20, 2023.

Court Denies Psychiatrist's Appeal after 
Assault by MMA Fighter Patient
The Court of Appeal for British Columbia recently dealt with a case involving a worker who appealed the dismissal of his negligence action against his employer. The worker, who was a psychiatrist, primarily argued that the trial judge erred in law by failing to ask whether the company discharged its duty to provide a safe workplace in the hospital. Around November 2014, the worker first met the patient, who had not been sleeping, had mood swings, and was erratic and confrontational, in the hospital emergency room. Days later, the worker again saw the patient and shared the opinion of the patient's general practitioner that he needed to be admitted to the hospital involuntarily under the Mental Health Act. Read the full article by Paulinet Tamaray with Canadian Occupational Safety.

WorkSafeBC – Proposed Amendments to OHS Regulation Part 6,
Substance Specific Requirements | Combustible Dusts
The proposed amendments to the OHS Regulation Part 6, Substance Specific Requirements relating toCombustible Dusts will include the requirement for a ‘qualified person' tobe consulted in many parts of the new regulation activities.The BC Forest Products Manufacturing industry including the ManufacturingAdvisory Group (MAG) and Wood Pellets Association of Canada providedvaluable feedback to the proposed Combustible Dust Regulations duringthe public consultation period which ended June 22, 2023. The regulationreview and revisions for Combustible Dust was a significant undertakingby WorkSafeBC. After many years of review and revisions, the final regulationwent from one (1) sentence in OHSR 5.81 to 33 sections in OHSRs 6.133 to6.167. Read the full article in the September 2023 issue of Forest Safety News.

Employer, Foreman Criminally Charged in 
Workplace Death in Burnaby 11 Years Ago
Eleven years after pipe-layer Jeff Caron was fatally crushed at a Burnaby worksite, criminal charges have been laid against his ex-foreman and the excavation company he worked for. J. Cote & Son Excavating Ltd. was charged on Aug. 17 with criminal negligence causing death and criminal negligence causing injury. David Green, Caron's foreman at the time of the accident, faces those charges as well as one charge of manslaughter. Read the BIV article.

WorkSafeBC Releases Policies on BC Employers'
New Return-to-Work Obligations
As we previously reported, the BC Government amended the Workers Compensation Act (the "WCA Amendments") to impose new obligations on BC employers in returning injured workers to their job. These changes will come into effect on January 1, 2024. As you may recall from our earlier blog post, the WCA Amendments create two new duties for workers and employers: the duty to cooperate and the duty to maintain employment of an injured worker. WorkSafeBC has since released a discussion paper with proposed policies to provide guidance on the new statutory duties (the "Draft Policies"). We provide a refresher on these new duties and highlight the notable items from the Draft Policies below. Read the full article by Michelle S. Jones and Miny Atwal with Lawson Lundell LLP.

OHS Policies/Guidelines – Updates
Policies – Occupational Health and Safety Regulation – August 15, 2023

OHS Policy R5.48-1 has been amended to reflect the current exposure limits for substances listed on the new or revised Threshold Limit Values for 2023 from the American Conference of Governmental Industrial Hygienists (effective August 23, 2022).

• R5.48-1 Controlling Exposure – Exposure Limits

Guidelines – Occupational Health and Safety Regulation – August 15, 2023

• Part 5 Chemical Agents and Biological Agents
  Table of Exposure Limits for Chemical and Biological Substances
  The table has been updated to reflect changes to OHS Policy R5.48-1 (amended August 15, 2023). Deletions are shown as strikethrough; additions and revisions are highlighted in green.
• Part 11 Fall Protection
  G11.6-1 Anchors
  This guideline has been updated to remove references to particular design and testing values within specific editions of standards to prevent potential misinterpretation or misapplication of the information.

Policies – Workers Compensation Act – September 1, 2023

The following policy item was issued to outline the process and criteria for WorkSafeBC to grant licences to asbestos abatement contractors. The requirements for asbestos abatement contractors to be licensed comes into effect on January 1, 2024.

• P2-59.03-1 Asbestos Abatement Licensing