MNavigating Legal Waters: B.C. Court of Appeal Insulates
Hydro Dam Owner from Nuisance Claims
On February 26, 2024, the British Columbia Court of Appeal (Court) issued its decision in Thomas and Saik'uz First Nation v. Rio Tinto Alcan Inc., upholding the B.C. Supreme Court's dismissal of nuisance claims brought by two First Nations against a private owner of a hydroelectric dam on the Nechako River in northwestern British Columbia.

Following a 189-day trial, the B.C. Supreme Court held that the dam owner, Rio Tinto Alcan Inc. (RTA), was not liable in private and public nuisance since RTA had established a defence of statutory authority by showing that the impact of its dam on fish or fisheries – and therefore the plaintiffs' Aboriginal right to fish – was the "inevitable result" of operating the dam in accordance with government authorizations. Read the full article by Ryan McNamara and Lana Finney with Blake, Cassels & Graydon LLP.

BC Updates Carbon Pricing System
for Large Industry
Starting April 1, 2024, B.C.'s output-based pricing system will see large industry pay for its emissions above a set target, and ensure companies have flexibility, support and incentives to reduce emissions and transition to a clean-energy future.

The pricing system sets a performance standard based on the average intensity for the respective industrial sector. Companies that exceed the standard are rewarded with credits. Companies that do not meet the performance standard will have the flexibility to buy credits or offsets. The standard tightens over time as B.C. transitions toward a cleaner economy and in order to comply with federal requirements. For more information, read the full government news release.

BC Supreme Court Upholds Temporary "Freeze"
on Cryptocurrency Interconnections
The Supreme Court of British Columbia recently released an important decision considering the validity of government directions to the British Columbia Utilities Commission (BCUC): Conifex Timber Inc. v British Columbia (Lieutenant Governor in Council). Under review was an Order in Council (OIC) [B.C. Reg. 281/2022] requiring the BCUC to allow BC Hydro to halt cryptocurrency interconnections for 18 months (until June 28, 2024). In a decision with impacts beyond cryptocurrency operations, Justice Tammen dismissed Conifex's challenge of the OIC, concluding that the suspension of cryptocurrency interconnections was lawful.

The BC government's use of OICs to intervene in matters that would otherwise be subject to BCUC oversight is not uncommon, and has been controversial at times. Despite upholding the OIC in this case, the court left the door open to future challenges of similar OICs, including on the basis of discrimination arguments and the BC government's reconciliation obligations to Indigenous peoples. Read the full article by Emily Chan and Emma Russell with Norton Rose Fulbright Canada LLP.

Displace Indian Coal Power with
Canadian Natural Gas: Report
Canada is a founding member of the Powering Past Coal Alliance – a consortium of national and subnational governments committed to addressing climate change by phasing out coal power.

Conspicuously absent from the alliance is India, which has signaled plans to double coal production to 1.5 billion tonnes tonnes by 2030 in order to add 88 gigawatts (GW) of new thermal power from coal by 2032, according to the National Bank of Canada.

The amount of greenhouse gases that would produce would wipe out any emissions reductions Canada is able to achieve through its climate change policies many times over, National Bank of Canada says in a new report, which urges investors and policymakers to promote the use of Canadian natural gas, through LNG exports, to replace coal in thermal power generation in places like India.

According to the Intergovernmental Panel on Climate Change (IPCC), GHG emissions can be reduced by 50 per cent when combined cycle natural gas power plants replace thermal power from coal. Read the BIV article.

BC Hydro Prepares for Drop in Water
Supply at Biggest Reservoirs
BC Hydro is preparing for a "historic drought" in the coming months as some of its largest reservoirs remain below normal levels.

In 2023, the utility imported about 10,000 gigawatt hours of electricity to cope with a shortfall in water entering its reservoirs. Utility spokesperson Mora Scott said in an email that those conditions are expected to continue over the coming months.

"While conditions have improved on the South Coast and Vancouver Island, our larger reservoirs in the north and southeast of the province are still below normal levels," she said. Read the BIV article.

Federal Government Suggests Major Revision
to Draft Clean Electricity Regulations
On February 16, Environment and Climate Change Canada (ECCC) released its "What We Heard" Report summarizing public comment on the Clean Electricity Regulations (CER) and seeking additional feedback on possible amendments. The report suggests that some of the most controversial and difficult aspects of the CER will be walked back, but details will only appear in the final regulation.

As described in our previous update, last summer's draft CER proposed prohibiting fossil fuel generating units (including natural gas-fired units) 25MW or greater from emitting carbon dioxide in excess of 30 tonnes CO₂/GWh if connected and exporting to the (NERC) grid. In most cases, the emissions intensity cap would apply to the later of January 1, 2035, or January 1 of the calendar year following the unit's "end of prescribed life" (EOPL, defined as 20 years after the commissioning date). Read the full article by Emma Russell, Matthew D. Keen and Alan Harvie with Norton Rose Fulbright Canada LLP.

Province Updates Act to Prioritize
Affordability, Clean Energy
The Province is updating B.C.'s energy objectives in the Clean Energy Act to help ensure that people and businesses continue to have access to affordable, clean electricity needed to power a growing economy, while reducing carbon pollution.

"With costs rising across the country at rates that are unsustainable for many people, we are focused on keeping the cost of clean electricity as low as possible," said Josie Osborne, Minister of Energy, Mines and Low Carbon Innovation. "Affordable, stable BC Hydro rates are good for households, businesses and climate as we work together to power B.C.'s growing economy with clean energy instead of fossil fuels."

Public utilities in B.C., including BC Hydro, are regulated by the B.C. Utilities Commission, an independent agency. The 2010 Clean Energy Act includes a list of B.C.'s energy objectives that the commission is required to consider in making its decisions. The Province has issued a regulation to update the objectives under the act to reflect government's efforts to deliver affordable clean power. For the first time since the act was introduced, keeping BC Hydro rates low is now a clear goal. Read the full government news release.

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

• TU 2024-01 – Annual Work Plan Submissions for Dormant Sites
• TU 2024-02 – Updates to the eSubmission of Methane Leak Detection, Quantification and Repair (LDQAR) Survey Data
• SA 2024-01 – 2024 Wildfire Preparedness

Visit the BC-ER website for more information.

Hazardous Spill Management Audit Published
On February 27, the Office of the Auditor General of British Columbia released the report Managing Hazardous Spills in B.C. The audit examined the Ministry of Environment and Climate Change Strategy's management of hazardous spills. The audit found that the ministry assessed, monitored and reviewed high-risk incidents and that compliance and enforcement staff acted when potential non-compliance was identified. However, it also found several issues, such as the out-of-date provincial-level plan for responding to a major spill, lack of consistent notification for First Nations communities when hazardous spills occurred, not meeting the requirement to report on the effectiveness of the spill response plan, and not recovering substantive costs. The report included nine recommendations, which have been accepted by the ministry. Read the full report here.

B.C. Scraps Controversial Plan to Share Public
Land Decision-Making with First Nations
The British Columbia government is scrapping a plan that was to allow shared decision-making with First Nations about the use of public land, which was part of the province's work to align its laws with the United Nations Declaration on the Rights of Indigenous Peoples.

A statement from Nathan Cullen, B.C.'s minister of water, land and resource stewardship, says the province has decided not to proceed with proposed amendments to the Land Act after holding a series of meetings with stakeholders.

Cullen says he spoke with more than 650 people representing sectors including mining, forestry, oil and gas, tourism, hunting and agriculture, and the "vast majority" told him they want to be part of making reconciliation work.

But he says officials also heard they need to "take the time to further engage with people and demonstrate the real benefits of shared decision-making in action." Read the National Post article.

Environmental Appeal Board Emphasizes the Importance of
Articulating Aboriginal Rights Early in the Consultation Process
On December 12, 2023, the British Columbia Environmental Appeal Board ("EAB") released its decision in Tŝilhqot'in National Government v. Director, Environmental Management Act, 2023 BCEAB 37. This decision stems from a 2019 amendment to Gibraltar Mines Ltd.'s permit (the "Amendment") authorizing a temporary increase in the volume of effluent discharge.

The Tŝilhqot'in National Government ("TNG") appealed the Amendment on two grounds:

• The Crown breached its constitutional duty to adequately consult and reasonably accommodate the Tŝilhqot'in Nation before issuing the Amended Permit
• The Amended Permit was not adequately protective of human health and the environment, as required by section 16(1) of the Environmental Management Act.

The EAB dismissed the appeal on both grounds. The EAB found that: a) the Crown had fulfilled the duty to consult, and that it was not required to make further inquiry and engage in further consultation with respect to the principle of non-degradation that was raised at a late stage in the consultation process; and b) the Amendment was adequately protective of the environment when relevant factors were considered. Read the full article by Kerry Kaukinen and Samuel Geisterfer with Fasken Martineau DuMoulin LLP.

Federal Court Sides with ENGOs on Expanding
Habitat Protection for Endangered Birds
A federal court justice has ruled in favour of environmental groups that challenged the Canadian government for failing to adequately safeguard the habitats of endangered migratory birds.

Lawyers from the environmental law charity Ecojustice were in court last fall to represent Sierra Club BC and the Wilderness Committee, contending that the government had failed to fulfill its obligations under the Species at Risk Act. Read the full article by Mika Pangilinan in the Canadian Lawyer.

Government Actions Regulation Order
The following Orders/Notices were recently posted and signed under the authority of the Government Actions Regulation 582/2004 impacting Ungulate Winter Ranges & Wildlife Habitat Areas.

• Notice is hereby given that Ungulate Winter Range (UWR) U-4-002 in the Rocky Mountain Natural Resource District and Selkirk Natural Resource District is established for mountain goat in the Kootenay Boundary Region. The Order was signed on February 27, 2024 under the authority of sections 9(2) and 12(1) and 12(2) of the Government Actions Regulation (B.C. Reg. 582/2004) of the Forest and Range Practices Act and section 31 of the Environmental Protection and Management Regulation (B.C. Reg. 200/2010) of the Energy Resource Activities Act. Details of the Order may be obtained from the Ecosystems Section, Kootenay Boundary Region, Ministry of Water, Land and Resource Stewardship, No. 401 - 333 Victoria Street, Nelson, BC V1L 4K3. The Government Actions Regulation Order, accompanying maps, and spatial files may also be obtained from: https://www.env.gov.bc.ca/wld/frpa/uwr/approved_uwr.html [fe29]
• Notice is hereby given that Wildlife Habitat Areas (WHAs) 4-313, 4-314 and 4-320 in the Selkirk Natural Resource District are established for wolverine in the Kootenay Boundary Region. The Order was signed on February 6, 2024 under the authority of sections 9(2) and 10(1) of the Government Actions Regulation (B.C. Reg. 582/2004) of the Forest and Range Practices Act and section 30 of the Environmental Protection and Management Regulation (B.C. Reg. 200/2010) of the Energy Resource Activities Act. Details of the Order may be obtained from the Ecosystems Section, Kootenay Boundary Region, Ministry of Water, Land and Resource Stewardship, 401 - 333 Victoria Street, Nelson, BC V1L 4K3. The Government Actions Regulation Order, accompanying map, and spatial files may also be obtained from: https://www.env.gov.bc.ca/cgi-bin/apps/faw/wharesult.cgi?search=show_approved [fe15]

Inaccurate Data on Forest Fuels May
Stoke B.C. Wildfires, Study Finds
Wildfire fighting and forest management decisions are potentially being hampered by inaccurate government data that misrepresents forest fuel loads in British Columbia's Interior, a new study has found.

The B.C. government says the provincial wildfire service is working with the study's lead author and others to close the data gap, which involves "mismatches" between remotely-sensed mapping, forest fuel classifications, and observations on the ground.

"These mismatches make it difficult for fire managers to accurately determine expected fire behaviour before an event occurs," the researchers say in the study published in the peer-reviewed journal Fire Ecology last month.

The mismatches may also result in failure to identify at-risk areas that would benefit from work to mitigate the fuel buildup, the paper says. Read the BIV article.

Novel and Justiciable
Two lawsuits against the federal government have been allowed to proceed, marking a major moment for climate change litigation in Canada.
Long-shot legal actions – "novel claims," to use the phrase preferred by judges – sometimes pay off in ways no one expected.

Back in December, the Federal Court of Appeal issued a unanimous decision to revive two challenges of federal government climate policy – one brought by 15 young people from across Canada (the La Rose claim) and one brought by two groups that form part of the Wetʼsuwetʼen First Nation (the Misdzi Yikh claim). Both claims accused the federal government of violating the plaintiffs' section 7 and 15 Charter rights by failing to address the threat of climate change.

The Federal Court rejected both claims without leave to amend on the grounds that they were not justiciable – that they were asking judges to rule on political questions beyond the legitimate authority of the courts. Read the full article by Doug Beazley in the CBA National magazine.

Public Invited to Comment on
Kispiox Timber Supply Area
People are encouraged to have their say about potential changes to the next timber supply review for the Kispiox Timber Supply Area (TSA) by submitting comments before April 13, 2024.

Public comment is sought for the recently released Kispiox Timber Supply Area discussion paper. The paper provides the results of a timber supply analysis and describes the geography, natural resources and current forest-management practices. This information will be used by B.C.'s chief forester to determine how much timber can be harvested in the TSA annually, which is known as the allowable annual cut (AAC).

Before setting the new AAC, the chief forester will also consider input and feedback from First Nations, industry and community members. Additionally, the impacts of current legal requirements and demonstrated forest-management practices on the timber supply will be examined, along with relevant economic, environmental and social factors for the local area and province. Read the government news release.

B.C. Seeks Public Input on Proposed
Hunting Regulation Updates
All people in British Columbia are invited to provide input on proposed changes to hunting regulations through public engagement sessions from Feb. 20 until March 22, 2024.

Every two years the Province reviews regulations and proposes changes as necessary. Proposed amendments are made to support economic and recreational opportunities, respect First Nations' harvest rights and sustainably manage B.C. wildlife. Proposed updates are developed regionally with local input.

As many as 50 proposed regulation amendments are under consideration for 2024, covering a range of topics, such as adjustments to seasons (length, start and end times) and motor-vehicle restrictions. Read the government news release.

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

Environmental Management Act

• Pacific Coast Renewables Corp. (formerly Net Zero Waste Abbotsford Inc.) v. Director, Environmental Management Act [Final Decision – Administrative Penalties Varied; Appeal Granted in Part]

Water Sustainability Act

• Eifar and Jolene Zielke v. Assistant Water Manager [Dismissal Order – Appeal Dismissed]

Visit the Environmental Appeal Board website for more information.

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

Wildfire Act

• Christopher and Sarah Matthews v. Government of British Columbia [Final Decision – Order Varied]

Visit the Forest Appeals Commission website for more information.

Changes Coming to Workplace 
First Aid Requirements
On November 1, 2024, amendments to the Occupational Health and Safety (OHS) Regulation relating to occupational first aid will come into effect. The changes mean employers across the province will need to review their current first aid plans and make necessary adjustments.
“The current first aid requirements in the OHS Regulation were enacted in 2004 and have been in place for over 20 years with minimal  updates,” says senior prevention advisor Angélique Prince. “These updates reflect the learnings from two decades of consultation, education, and enforcement across British Columbia. They also recognize remote or less-accessible workplaces created by the unique geography of our province. We believe the amendments will enhance first aid across B.C. and help keep workers safe.” Read the full article by Tanya Colledge in the Spring 2024 issue of WorkSafe Magazine.

Heat Stress Management Standard for   
Construction Industry
ASSP looks to fill regulatory gap in U.S. with science and practices that can be applied in Canada
The American Society of Safety Professionals (ASSP) recently unveiled the first national voluntary consensus standard specificallydesigned to combat heat stress in construction and demolition operations. This pioneering standard, ANSI/ASSP A10.50-2024, addresses a critical gap in worker safety regulations, providing a comprehensive guide for employers to safeguard their workforce against the dangers of heat exposure. Read the full article by Shane Mercer, published on Canadian Occupational Safety.

BC Paper and Pulp Mill Worker  
Electrocuted in the Workplace
One worker died 12 days after he was electrocuted at the Canfor Intercontinental paper and pulp mill in British Columbia, according to a report. The incident happened in Prince George on Jan. 31. On that day, 45-year-old Gary Lefebvre was operating an electric hoist attached to an overhead monorail, CKPG News reported, citing details from WorkSafeBC. The worker was holding the control pendant and leaning on a metal guardrail to view the area of the lift when they collapsed. “An exposed 347-volt conductor was subsequently found on the electric hoist power cable in close proximity to where the worker had been,” according to WorkSafeBC. Read the full article by Jim Wilson with Canadian Occupational Health and Safety.