Categories of resources Abiotic: Minerals, non-organic Biotic: Living, organic material. i.e. forest resources and wildlife

Also includes fossil fuels—formed from organic matter (though usually treated as abiotic) Renewable: Naturally replenish

Forests, fish—sustainable use, allows resource to be maintained through replenishment and recovery Non-renewable resource: Not replenished

Abiotic resources like minerals also coal, natural gas and petroleum

LANDBC—virtually all land and land resources are Crown owned

95% Crown title, 14% are parks and protected areas (not open for resource development) Crown title means British Columbians own the land

-Compare to US where majority is privately owned, implications for public policy + who reaps benefit from resource use

Constitutional jurisdictionProvincial Federal

-S. 109 Property of the province “All lands shall belong to the several

provinces…in which the same are situate or arise”

Important for FN, Delgamuukw reservations in this section found to be significant with respect to land claims, it preserved first nation rights

Provincial-S. 92(5)—management + sale of public lands belonging to Province and Timber and Wood theron-S. 92(13)—property and civil rights

-S. 108 Property of Canada E.g. Public harbours, railway lands, military lands

Railways in BC—Term 11 Terms of Union, BC promised to give land to the Dominion public lands along railway land (20 miles along)

Then allocated to railway company, also got mineral rights Alberta, resulted into private ownership of oil in some places Construction delayed until 1880—land was being allocated to other

parties, BC granted more land in Peace River Ultimately transferred back to the province

s. 91(1A) – The Public Debt and Property Applies to federally-owned property e.g. federal parks, ports, etc.

s. 91(24) – Indians, and Lands reserved for the Indians

B. Ownership and rights-95% Provincial Crown-owned land in BC

Importance of ownership—Crown has power to sell, lease, grant rights or set conditions Crown must legislate to set conditions on land ownership applicable to private owners

-5% private—Use of private property subject to legislated limits—provincial, municipalHistory-Aboriginal title/interests are recognized based on historical use and occupation prior to assertion of British sovereignty-Crown sovereignty

1670 Hudson Bay Company Charter—granting fee simple to the area geographically defined by watersheds of the rivers which flowed into Hudson Bay

1760—Treaty of Paris—British acquired New France 1763—Royal Proclamation from George III—Sets out reserved land for “Nations or Tribes of Indians” as hunting grounds

Recognized rights to unceded land in their possession Those lands could not be sold to anyone other than the Crown Then applied to all the Dominions of Great Britain (though had not extended to BC)

Courts have determined that Aboriginal rights and title in BC are not dependent on Royal Proclamation, but arise from occupation of traditional territories

1846—assertion of Crown sovereignty in BC 1869—Dominion of Canada received deed of surrender of HBC lands

Proviso that allowed HBC to retain 7M acres of land, also received right to claim grants of 5% of Crown land available for settlement—included right to all minerals except precious metals

Treaties with First Nations

Colonial Treaties and Grants 1680—treaties b/w France and 5 Nations Maritime Treaties—from 1693-1779

Vancouver Island Treaties A number of treaties were negotiated by the HBC and later by the Governor of the Colony of Vancouver Island

during the period 1850 to 1854 (14 treaties) The Numbered Treaties

1871 to 1921, the Dominion of Canada negotiated the “Numbered Treaties” comprising Treaty 1 through Treaty 11, covering western Canada to the boundary of the Rocky Mountains

The only Numbered Treaty which extends into British Columbia is Treaty No. 8, signed in 1899— covers parts of Alberta, the Northwest Territories, the Yukon, and northeast British Columbia east of the Rocky Mountains

Treaty 8 in BC—lands ceded to the Crown promising back the Crown would reserve back land where communities were and that they would continue to have rights to hunt

Taken up clause: Except on those lands ‘taken up’ for forestry, settling, roads etc. Questions about fairness

Mainland BC outside of Treaty 8 Modern treaties—first nations have more bargaining power

Nisga’a Nation, Tsawwassen First Nation, Maa-nulth First Nation, Tla’amin Nation More like Yukon treaties

Some first nations still maintain broader right to make Aboriginal title claim

Territorial Treaties- Different because negotiating w/ federal government, in BC provincial government negotiating Yukon Umbrella Final Agreement 1994

Negotiated by all first nations w/ Crown, then each signed individual based on main agreement (11/14 signed) First Nations acquired about 10% of traditional territory as settlement land which is owned in fee simple

2 categories: A—includes mines and minerals, B—don’t own mines and minerals Throughout territory have broad rights on land use and settlement

NWT—most is covered by land claim agreements Gwich’in Comprehensive Land Claim Agreement (1992), Sahtu Comprehensive Land Claim Agreement (1993),

Tlicho Land Claims and Self-Government Agreement (2003) Nunavut—whole territory covered by Nunavut Land Claims Agreement reached with Inuit

Survey and Land Registration Dominion Lands Act 1872 provided for surveys of dominion lands

Basic unit of the survey = township, which is a square mile measuring 6 miles on each side, divided into 36 sections These survey units have implications for settlement of Dominion lands by farmers, ranchers and others, and also has

implications, in particular, for regulation in the oil and gas industry

Railway subsidies 1881-94 extensive grants of land to Canadian Pacific Railway, 32M acres

All in fee simple with mineral rights Included all land w/n 20 mls of projected railway, beyond 5 miles divided b/w railway and crown/pre-empted land Included mineral rights

Reservation of mines and mineral 1881, Crown began reserving underlying minerals, adopted fully in 1887

Originally all precious minerals, then policy changed to reserve all mineral rights Policy began the separation b/w surface rights and the and subsurface rights to mines and minerals including oil and gas BC ultimately acquired ownership of Railway Belt and Peace River Block

Settlement of Lands-Private individuals/organizations promoting settlement of lands in western Canada were able to acquire Dominion lands through # of legislative and policy programs:(1) Original settlement—

1870s original settlements converted into freehold by a grant from the Crown (Manitoba Act) Manitoba Act also provided for grants of land to Metis people—provisions of these grants are still being worked out in

litigation and settlement(2) Homesteads—

Under homesteading policies commencing in the 1860s, the Dominion offered a quarter section of land, 160 acres, to those who were prepared to live on and cultivate the land for a certain period of time (initially 5 years, later reduced to 3 years)

First come first serve Once homestead duties met, could apply for issuance of letters patent to confirm title to the land Special provisions in 1916-1918 to provide for special access to homestead opportunities for WWI veterans

(3) Pre-emption— Beginning in 1871, Dominion Lands Act provided for pre-emption of Dominion Lands Pre-emption allowed a person who had inhabited and improved public lands to enter up to 160 as pre-emption and

thereafter to purchase lands entered Essentially buying the land Homesteaders were entitled to pre-emption of an additional 160 acres adjoining the homestead quarter – enabling

the homesteader to expand the lands for the use of the next generation Cancelled in 1918, Crown wanted to reserve for veterans

Aboriginal title and land rights-Treaty 8 in BC

Commissioners looking to settle the land, under Proclamation Purpose of commissioners—to obtain consent and to open up lands for settlement, mining etc.

Created title land reserves + granted land use rights over the traditional territory “Taking up” of lands for settlement and natural resources provision (para 4)

FN’s rights to consultation and accommodation on the “taking up” of Crown lands in the territory (Mikisew Cree) Mikisew Cree—consultation under one of the numbered treaties

Crown—we don't have to consult because there is a treaty SCC, Crown position not tenable because it does not reflect the honour of the Crown Must consult with First Nation

Nation has rights and projects of the Crown will affect those rightsNon-treaty areas

Most of BC not covered by treaty Lots of unresolved land claims + unresolved claims for title and rights

Delgamuukw—confirmed that Aboriginal title still existed Had to prove exclusive occupancy at assertion of sovereignty Content of title land: inalienability, held communally, inherent limitation on use

Tsilhqot’in—proved exclusive occupation,

First Nations Rights to Consultation Haida Nation v. British Columbia 2004

Crown must consult when it proposes decisions which may impact aboriginal claims or rights Context of consultation depends on strength of the claim and the potential extent of the impact Reasonable accommodation may be required

Modern treaties Build in consultation—define

Information: Show plan with enough detail, give information necessary to decide how it might affect their rights Time: reasonable period of time to consider and advise Full and fair consideration to concerns

E.g. Little Salmon/Carmacks First Nation (Yukon) Consultation is defined:

Reasonable notice of proposed decision Reasonable opportunity to present views and concerns Full and fair consideration of the views and concerns presented

First nations title vs fee simple title Fee simple—Land disposed of freely, doesn't have to be held communally, no inherent restrictions

First Nations rights on Crown land Within traditional territories

Rights to traditional use of Crown lands (hunting, fishing, trapping, spiritual) Participation in land use decisions and resource management

C. Processes for allocating/acquiring/terminating resources—Land DispositionPolicy—Crown Land Allocation Principles

Crown land values are managed for the benefit of the public Economic, environmental and social needs and opportunities are identified and supported

The interests of First Nations communities are recognized Decisions are timely, well considered and transparent Public accountability is maintained during the allocation of Crown land

Land Act Administration of Crown land s. 4 Crown Land Registry s. 7 Integrated Land and Resource Registry ss. 7.1-7.4 Types of Disposition s. 11(2)—the Minister may

(a) Sell (b) lease (c) grant right of way easement (d) grant licence to occupy

Rights reserved to gov’t s. 50(1)(a) (i) 1/20th of land for roads, bridges or public works (ii) Access to geothermal resources, minerals, coal, petroleum and gas (iii) Right to water for mining or agriculture (iv) Take, w/o compensation, gravel, sand, lime, timber or other construction material

s. 50(1)(b) historical, disposition of land does not convey right to… Geothermal, minerals, coal, petroleum, gas

Expropriation-Crown reserves right to expropriate land for public purposes (roads, transmission lines, schools, etc.)

No constitutional prohibition against expropriating property Compensation payable under the Expropriation Act Expropriation in treaties—reserve the right, plus requirement to give equivalent land somewhere else

Surface rights for resources use Mining— Mineral Tenure Act

Surface rights to Crown land –s. 15 Priority of rights on Crown land –s. 16

Depends on timing of land application/mineral claims Right of entry on private land and compensation –s. 19

Oil and Gas Petroleum and Natural Gas Act entry on Crown land – s. 7 entry on private land – Petroleum and Natural Gas Act, ss. 9 - 13 Common law use to say it has to be reasonable, now very legislated and clearer

D. Payments of rents, fees and royalties Crown policy Fair market value of land or lease

E.g. lease—determine fair market value and lease value 7% of land

E. Sustainability and environmental protectionTwo-fold—

(1) Land use planning and designation(2) Protection against contamination

(1) Land use planning process -Very complex and uncertain

Concerns in 1980s—huge public protesting against harvest of forests No coherent land use planning Government decisions seemed arbitrary Resources not sustainable (forestry) Lack of public consultation/input

Commission on Resources and Environment Mandate—To develop land use plans to balance social, economic and environmental issues

By 1995 developed strategic land use plans for most contentious regions These plans were not legally binding—serve as guidelines

Land Use Coordination Office 1994—created Land and Resource Management Plans (LRMPs) Again, not legally binding, LRMPs serve as guidelines for land use decision E.g. Fort James LRMP—sets up Resource Management Zones

Settlement/Agriculture – 1% Resource Development – 32% Multi-value – 45% Special Management – 16% Protected Area – 6%

-Land use plan under modern treaties Tsawwassen treaty LSCFN Treaty (Yukon), ch. 11—Land Use Planning

Nacho Nyak Dun v Yukon—-F: Gov’t Yukon appealing dec. that it failed to conform w/ its treaty obligation under land use planning process for Peel Watershed

Gov’t entered into an Umbrella Final Agreement with the Yukon First Nations Established a consultative process for the development of land use plans in various regions

Commission to create land use plan Yukon provided very general suggestion and then proposed their own plan

TJ concluded that Yukon usurped the Commission’s role by introducing new and substantive modifications that weren’t consulted on + TJ took away the right to the government to reject the plan

-A: Appeal allowed in part Final agreements are treaty rights for the purpose of s. 35—standard of review of correctness

Yukon failed to honour the letter and spirit of its treaty obligations Process problems: Failed to reveal plan modifications, failed to provide details

Undermined dialogue and left Commission ill-equipped This denied the Commission performance of its treaty role But gave the government back their right to reject a plan, sent it back to the very beginning

Land Designation and Objectives Land Act – ss. 15-17

Reserves, withdrawal from disposition Provisions for taking land out of disposition

Part 7.1- Land Designation and Objectives Land Use Objectives Regulation

-Land Use Designation Restrictions— Forest and Range Practices Act—Provisions for land use planning and putting certain parts of forests under protection

Wildlife areas – s. 149.1 Community watersheds – s. 150 Watersheds for fisheries – s. 150.1 Lakeshore management areas – s. 150.2 Scenic areas – s. 150.3 Streams, wetlands and lakes – s. 150.5

Park Act—enables gov’t to set aside park (International objectives for parkland = 12%, Parkland and protected areas as percent of land base in B.C. – approx. 14%)

Park Act, ss. 5-8 Compensation to resource companies if the government takes land for park S. 33 allows for subsurface access to oil and gas resources (haven’t seen it but technology makes it possible)

Ecological Reserve Act—establish reserve and limit what can happen there Purpose – s. 2

Includes protection of endangered species Establishing ecological reserves – s. 3 Imposes resource use restrictions – s. 5

-Objectives—when they are set, not binding, but project under enviro assessment, terms of reference will include Land use objective from these plans

(2) Sustainability and environmental protection-Private conservation of land

Conservation agreements Land Title Act, s. 219 Organizations will pay to put covenant on land in order to protect it

-Protection against contamination Contaminated sites legislation

Absolute, retroactive, joint and several liabilities Environmental Management Act BC, s. 47

Reclamation Mines Act BC s. 10 Health, Safety and Reclamation Code for Mines in British Columbia (Mining Code), s. 10.7 Absolutely secured, funds always there to provide for clean-up even if company goes bankrupt

F. Regulatory requirements and conditions Uses in conformity with land use restrictions (above) Terms and conditions of leases, road use permits, licences of occupation Reclamation requirements after resource use

G. Environmental-B.C. Environmental Assessment Act triggers

Reviewable Projects Regulation – assessment triggered by specific projects

-Canadian Environmental Assessment Act s. 5 Assessment triggered by use of federal lands, or where a federal authority is the proponent, or provides

financing, or issues certain licences, permits or approvals

H. Interprovincial/international issues

I. Case studies and policy issuesTsilhqot’inF: First to find Aboriginal titleA: Test for Aboriginal title

Delgamuukw based on “occupation” prior to assertion of European sovereignty Occupation must be: Sufficient, continuous, exclusive Sufficiency—Intensity and frequency may vary with characteristics of the group + character of the land

Acted in a way that communicated occupation to third parties that they hold land Regular use of territories sufficient

Continuity of occupation—Timeframe starts in 1846—establish an inference of pre-sovereignty occupation, the present must be rooted in pre-sovereignty times

Substantial maintenance of connection Can work backwards from post sovereignty if cannot prove exactly at 1846

Exclusivity of occupation at the time of sovereignty “Intention and capacity to retain exclusive control over the lands”

Legal Characterization of Aboriginal Title Crown title burdened by the pre-existing legal right of Aboriginal people who occupied and use the land What happens to burden once title is proved?

The content of the Crown’s underlying title is what is left when Aboriginal title is subtracted from it Aboriginal title is a beneficial interest on the land

Incident of title Confers ownership rights similar to fee simple—Decide how land is use, enjoyment/occupancy, possession Inherent limit—Cannot deprive future generation, use irreconcilable is a matter to be determined when the issue arises

Justifiable incursion—Fiduciary duty means that incursion cannot be justified if they would substantially deprive future generations of the benefit of the land

Whether use irreconcilable with inherent limit is an issue to be determined when issue arises, not confined to pre-sovereignty uses Gov’t also cannot deprive future generations of use

-Provincial laws of general application apply unless Unreasonable , impose a hardship, deny the title holders their preferred means of exercising their rights + restrictions can’t

be justified pursuant to justification framework

WATER-Water as resource to be used (as opposed to environmental resource to be protected)

Used for power (non-consumptive) 97% of water available for licence Nines, pulp mills, water supply 3% of water available for licence

Constitutional jurisdictionProvincial Federal

**Primarily provincial-92(5) – The management + sale of Public Lands belonging to the Province and of the timber and wood thereon-92(13) – Property and Civil Rights in the Province-92(A)(1)(c) – Development, conservation and management of sites and facilities in the province for the generation and production of electrical energy

-Together ownership and jurisdiction of water is almost entirely provincial

-91(10) – Navigation and Shipping-91(12) – Sea Coast and Inland Fisheries

Interprovincial/international rivers Ocean pollution

-Can get water licence from province, but still need to make sure you are not impeding navigation w/o federal permit + authorization from fisheries-Not granting authority to use water, but play defense (rights of navigation and defense of fish)

s.135 Treaties—signed international rivers, get jurisdictionProvincial legislation-Water Sustainability Act—BC, main

Prevents water diversion projects + bulk exportation of water

-Water Protection Act—-Other BC statutes which also address the allocation and regulations:

Forest and Range Practices Act Oil and Gas Activities Act, (can't drill 100 m from stream) Fish Protection Act (less important than Fed version) Environmental Management Act, Parts 1 and 2

(authorization to discharge effluent into water bodies)

Federal Legislation-Fisheries Act ss. 34-42.1-Navigation Protection Act, ss. 1-6-Canada Water Act, ss. 1-18-International Rivers Improvements Act

Federal gov’t doesn’t own water, therefore doesn't have right to allocate use

Does have power to restrict activities under fisheries + navigation

International Rivers Improvements Act— has power to regulate activities/uses of water on international rivers

B. Ownership and rightsCommon lawLaw of Riparian Rights

Received into the law of Canada (except for Quebec) as part of the existing body English common law Riparian owner didn’t actually “own” the water flowing by or through the riparian property

Water is a “profit a prendre” – ownership acquired over the water actually taken or diverted for use-This principle applied both to surface waters and groundwater

Well drawing groundwater will actually pull ground water from an aquifer situated under a number of properties Each individual who takes water from a groundwater well becomes the owner of that water

Doesn’t matter that water may have been drawn from under a neighbouring property This situation known as the “rule of capture” in context of wells producing oil or natural gas

-3 major problems w/ Riparian rights law (David Percy) (1) Limiting water use to riparian land inhibited the development of land distant from goods sources of water

The riparian owner not allowed to transfer water rights to other parties on non-riparian land

(2) Even limited the development of some riparian lands, b/c major consumptive uses denied to owners E.g. large scale irrigation projects, which might result in the diminution of the flow of the stream were

not permitted because they would interfere with downstream riparian rights (3) In the event of water shortages in dry years or droughts, there was no scale of priorities to allocate the

scarce water to its most important uses

Aboriginal Title and Rights-At CL and under S. 35, Aboriginal people have rights to the use of water for traditional purposes

The question of title to water as part of aboriginal title? Crown generally retains jurisdiction over the ownership and use of waters under land claimant agreements and

treaties (see chapter 14 of the Yukon final agreements) Make specific provisions for aboriginal rights to traditional use

CrownDevelopment of water allocation law in BC

Same framework for disposition of water rights as other natural resources (land, mineral, forests) Faced challenged that when sovereignty established, people came to BC for mines and mineral

E.g. to process gold, need access for water but may not have had Riparian rights Decided to break with law of riparian rights— provide miners with ability to obtain rights for their operations

Extended to people needing water for agricultural purposes

-Starting with colonial proclamations by Douglas in 1859- the Water Consolidation Act of 1897, the Crown asserted the right to grant licences for the use of water from all streams in the province

Provisions were consolidated in Water Act (1909) Amendments to Water Act—required anyone exercising riparian rights to obtain a licence

This effectively abrogated any riparian rights and brought them within the licencing scheme There was no assertion of ownership, and no regulation of, groundwater extraction

-Similar approach to BC was taken in Canada under Federal North-West Irrigation Act of 1894 Until 1930, Dominion of Canada retained rights over natural resources in prairies—enacted water legislation

similar to BC (i.e. exclusive right to grant licence on any stream, prohibited from taking from stream w/o licence

unless domestic purpose) In 1930, the Natural Resources Transfer Agreements, affected the general transfer of natural resources from the

Dominion to prairie provinces Water licenses granted by the Dominion were carried over under provincial administrations after 1930

C. Processes for allocating/acquiring/terminating resourcesCrown grants of water rights-Crown asserted right to ownership + began to grant water rights under Water Act as a “principle of prior allocation”

Under principle, granted on a “first in time first in right” basis Priority based on date of application—licence shows amount, and now end date

Implications—later person may need for more valuable reason may be out of luck

Priorities Priority based on date of water licences—

Earliest licence entitles to receive and use entire amount regardless of impact of that consumption Doesn't allow for proportionate reduction of water use in event of shortage

Thinking about changing? Difficult now b/c people built on reliance on water licences

Attributes of prior allocation model Priority in accordance w/ seniority of licence

Could be given to parties that are not riparian owners If a non-riparian owner granted licence to use water—also comes w/ right to expropriate land b/w the

water source and the appurtenant lands Withdrawal for domestic purposes by riparian owners still permitted – no water licence was required

for this purpose Riparian owners required to obtain water licences for the use of water for other than domestic

purposes (for example, irrigation etc.). A riparian owner does not have a right of action if the flow of a stream is reduced by a licence holder

upstream where the upstream licence holder has priority in time

Rental rates were payable for the consumption of water Generally issued without terms (are perpetual) Sale of appurtenant land included transfer of water licence

Licence always connected to a piece of land or operation (different than other natural resources) Crown can ensure that water is preserved for large uses such as power production (can establish water reserves)

-Frameworks did not cover ground water and ground water extraction

Water licences in BC 50 000 surface licences 98% of water volume for water power 2% for remaining uses Water Protection Act prohibits diversion projects from major watersheds

Groundwater Wells-Previous Water Act did not regulate extraction of ground water

Accordingly, where a water license could not be obtained for surface water, a water user could simply establish a ground water well to extract water

-Modernization starting in 2009 (2010—discussion paper, 8 principles and four goals) 1. BC’s water resources are used within sustainable limits. 2. First Nations social and cultural practices associated with water are respected and accommodated. 3. Science informs water resource management and decision making. 4. Water resource legislation, policy and decision making processes as well as management tools are integrated across all levels of gov’t 5. Rules and standards for water management are clearly defined, providing a predictable investment climate across the province. 6. Flexibility is provided to adapt to extreme conditions or unexpected events on a provincial, regional or issue-specific level. 7. Incentives are created for water conservation that consider the needs of users and investors. 8. Rights to use water come with responsibilities to be efficient and help protect stream health

-Goals—(1) protect stream health and aquatic environments, (2) improve water governance arrangements, (3) Introduce more flexibility and efficiency in water allocation system (4) regulate groundwater extraction and use

-Came into force in Feb 29 2016, replacing Water Act Regulations include: water sustainability regulation, water sustainability fees + rental and Tariff Regulations fees

Vesting water in gov’t ss. 5(1)—The property in and right to the use and flow of all the water at any time in streams in BC are for all purposes

vested in the government, except insofar private rights established under authorization The term “authorization” is defined as meaning a “license or use approval”

ss. 5(2)— The property in and the right to the use, percolation and flow of groundwater, are for all purposes vested in the government + conclusively deemed to have always been vested (retroactive) in the government except insofar as rights have been established under authorizations or deemed under S. 22(8)

Previous Water Act did not include an assertion of property and rights in groundwater like this

Implication of this assertion of property rights in groundwater? s. 121, entitled “no compensation”, and provides, in general, that no compensation is payable by the government arising

from any effect on various rights including: (e) Resource rights conferred by Crown Grant, or (f) rights and privileges in relation to land and resources

Summary of provisions of the Water Sustainability Act

Use of water S. 6—a person must not divert water from a stream or an aquifer, or use water diverted from a stream or an aquifer unless

the person holds an authorization for the diversion or use SS. 6(2)—exception for extinguishing a fire, doing tests on the quality/quantity of water or to conduct a flow test SS. 6(3)—a person is not prohibited from diverting and beneficially using unrecorded water from a stream for

domestic purposes or prospecting for a mineral, or from aquifer for prospecting for a mineral SS. 6(4)—a person may in accordance with the regulations divert and beneficially use , including store, groundwater from

an aquifer for domestic purposes, unless there are restrictions under regulationsThe effect of these provisions is that generally, a license is not required for the use of surface water or groundwater for “domestic” purposes (see definitions)

Groundwater licencing S. 140—groundwater users must apply for licences (except domestic purposes) S. 55 & 15—ground water registration

Apply by March 2019, prove date of first use Don't register = lose priority, get precedence on later date of application

Rights required under authorization S.7—rights of license holder to:

Divert and beneficially use the quantity of water specified in the license (“beneficial use” in S.1); Construct maintain and operate the “works” authorized by the license + related works necessarily required Make changes in and about a stream necessary for the construction , maintenance, or operation Construct fences, screens, and fish or game guards across streams for the purpose of conserving fish or wildlife

S. 8—exercise of a right held under an authorization is subject to Act and regs, terms and conditions, orders of comptroller, water manager or engineer etc. whose rights have precedence

Who can obtain? S. 9—(a) owner of land of mine, (b)-(g) rest is governmental organizations Short term use approvals

S. 10—can get approval for one or more water use purposes for term not exceeding 24 months Use purpose must be in relation to “appurtenancy” (in relation to some works)

S. 11—changes in and about a streamOverriding Protections

S. 3—nothing in Act authorizes a person to do anything prohibited by Act (i.e. Can’t remove water from BC without licence)Water Use purposes

S. 2—purposes in respect of which water may be diverted from a stream or aquifer… Conservation Domestic Industrial (industrial uses defined as in the Water Sustainability Regulation, includes bottled water, Nestle) Irrigation Land improvement Mineralized water, Mining, Oil and Gas, Power (Use of water in the production of electricity or other power), Storage Waterworks (meaning the carriage or supply of water by one person or entity for the use of another person or entity –

generally community water supplies etc.)Notice of application to other parties

S. 13—applicant for licence must give notice of application … to any of the following whose rights are likely to be detrimentally affected if the application is granted:

(a) An authorization holder (anyone else on the stream) (b) A change approval holder (c) An applicant for an authorization or change approval (d) A riparian owner (property around water body) (e) A land owner whose land is likely to be physically affected if the application is granted

-Those persons may deliver any objections to the decision maker If an objection or objections are delivered, the decision maker must decide whether or not the objection warrants a hearing S. 13 includes provisions for the conduct of a hearing S. 14 specifies the powers that the decision maker has in considering the application Not a general public notice, just group of potentially affected persons

Rights of appeal-Can bring appeal under s. 105 for approval/denial

Limited to: (a) The person who is subject to the order (the applicant)

(b) An owner whose land is or is likely to be physically affected by the order (c) The owner of the works that are the subject of the order; or (d) the holder of an authorization, a riparian owner or an applicant for an authorization who considers that his or

her rights are or will be prejudiced by the orderEnvironmental flow needs

S. 15—decision maker must consider environmental flow needs of a stream Have to provide studies, hire consultants to identify needs of the stream s. 15(2)

Protection of environmental flow needs Under these provisions, if the minister considers that flows have fallen or are at a risk of falling below critical

environmental flow thresholds or flows necessary for the survival of a population of fish, may issue an order under which necessary flows take precedence over other uses of water

(Domestic still protected) New power which was not available to the minister or decision makers under the previous Water Act

Precedence of rights SS. 22 specifies that where authorizations have the same date of precedence, the rights have precedence in accordance

with the ranking under ss. 22(7) as follows: listed based on priority Domestic Waterworks Irrigation Mineralized water Mining Industrial Oil and gas Power Storage Conservation Land improvement

Groundwater rights precedence s. 22(4)(5), and (6) set out the same precedence ranking for groundwater as for surface water

Temporary protection orders Division 5 of the Act provides for temporary protection orders to protect critical environmental flow thresholds (S. 86, 87)

and to protect fish population (S. 88) If ordered, environmental has precedence except for essential household uses

Security of licence/suspension and cancellation S. 94 –rights of a license holder may be cancelled in whole or part for a number of reasons including:

Failing to construct the works authorize within the time specified Failing to comply with the Act or regulations Licensee fails to make beneficial use (defined) of the water for 3 successive years

Transferability of licences S. 25—licence that is appurtenant to any land, mine or undertaking passes with a conveyance or disposition of land, mine or

undertaking30-year review of licence terms and condition

Licences don’t have terms BUT s. 23—authorizes controller to get licensee to submit review of terms and condition after 30 years s. 23(7) decision makers may amend terms and conditions for more efficient use or conservation of water to:

(a) To reduce the maximum rate of diversion of water. (b) Alter the time of diversion or use. (c) Make changes to the “works”, (d) Adopt a more efficient practice

Use of lands to construct worksLicence holder may require access to Crown land to build

S. 24 provides permits over Crown land S. 32 provides a licensee with the right to expropriate any land reasonably required for the construction maintenance

improvement or operation of works authorized/necessarily required under the license This right applies to private lands

S. 32 & s. 33 include provisions for expropriation and for payment of compensationBeneficial Use

S. 30 provides that a person who diverts water must make beneficial use of the water diverted See the definition “beneficial use” under S. 1

The comptroller may give directions requiring the submission of information to confirm the beneficial useWater Reservations

S. 39 provides that the lieutenant governor in council to reserve all or part of the water that is in the stream or aquifer from being diverted or used under this Act

Reservations typically reserve water bodies to ensure that water available for purposes like large hydro projects S. 40 provides for water reservations for the purposes specified in treaties first nations

Protecting Water Resources Part 3—provisions for setting water objectives, including prohibition on dams in protected rivers listed in the schedule

E.g. Fraser river, the Skeena river, the Stuart river and others Breach of this prohibition in such a manner as to cause significant adverse impact

Water Rentals-The Crown, as owner of the water, sets rentals for water under the water sustainability fees, rentals, and charges tariff regulations

The highest rental rates under the regulation, or industrial purposes, are $2.25 per 1000m³ Rental fees apply to mine processing, hydraulic fracturing in the oil and gas industry, waterworks, as well as water bottling

D. Payments of rents, fees and royalties

E. Sustainability and environmental protectionDischarges to Water

Environmental Management Act, ss. 6, 14-22 Effluent permit required for discharges to water (s.6) Water quality guidelines used for discharge limits (14-22)

effluent monitoring water quality monitoring

Fish Habitat Protection Fisheries Act

s. 36 prohibits discharge of “deleterious substances” (4) No person contravenes subsection (3) by depositing or permitting the deposit in any water or place of

(a) waste or pollutant of a type, in a quantity and under conditions authorized by regulations applicable to that water or place made by the Governor in Council under any Act other than this Act;

(b) a deleterious substance of a class and under conditions — which may include conditions with respect to quantity or concentration — authorized under regulations made under subsection (5) applicable to that water or place or to any work or undertaking or class of works or undertakings; or

(c) a deleterious substance the deposit of which is authorized by regulations made under subsection (5.2) and that is deposited in accordance with those regulations

(5) The Governor in Council may make regulations for the purpose of paragraph (4)(b) prescribing (a) the deleterious substances or classes thereof authorized to be deposited notwithstanding subsection (3); (b) the waters or places or classes thereof where any deleterious substances or classes thereof referred to in paragraph

(a) are authorized to be deposited; (c) the works or undertakings or classes thereof in the course or conduct of which any deleterious substances or classes

thereof referred to in paragraph (a) are authorized to be deposited; (d) the quantities or concentrations of any deleterious substances or classes thereof referred to in paragraph (a) that are

authorized to be deposited; (e) the conditions or circumstances under which and the requirements subject to which any deleterious substances or

classes thereof referred to in paragraph (a) or any quantities or concentrations of those deleterious substances or classes thereof are authorized to be deposited in any waters or places or classes thereof referred to in paragraph (b) or in the course or conduct of any works or undertakings or classes thereof referred to in paragraph (c); and

(f) the persons who may authorize the deposit of any deleterious substances or classes thereof in the absence of any other authority, and the conditions or circumstances under which and requirements subject to which those persons may grant the authorization.

Metal Mining Effluent Regulations Pulp and Paper Effluent Regulations

F. Regulatory requirements and conditions

G. EnvironmentalEnvironmental assessment

For projects requiring environmental assessment – no licences or permits can be issued until environmental assessment is completed

BCEAA, s. 8 CEAA, ss. 6 and 7

H. Interprovincial/international issuesInterprovincial

Interprovincial Cooperatives v. The Queen (Manitoba), [1976] (interprovincial pollution)

Manitoba could not create statutory right of action against Saskatchewan company polluting river flowing into ManitobaCooperation on Interprovincial Rivers

Have seen cooperation b/w Canada, BC, Alberta, Sask, NWT and Yukon with respect to McKenzie River Basin

International Rivers International River Improvements Act 1909 Boundary Waters Treaty Columbia River Treaty, 1964 Flathead River Valley (discussed in the Land session of this course)

CEAA provides for processes to address environmental effects of projects which may cause interprovincial or international impacts. CEAA, ss. 46-47 BCEAA, s. 27

Water under NAFTA NAFTA does not prevent measures relating to the conservation of natural resources

But such measures must be in conjunction with restrictions on domestic production or consumption NAFTA does not affect right of government to decide whether it will allow water to be taken under licence

BC Water Removal Restriction Water Protection Act, ss. 1-9 Prohibits the transfer of water from one major watershed to another major watershed Prohibits removal of water from British Columbia – except in containers of 20 liters or less

I. Case studies and policy issues

MINERAL RESOURCESLand base footprint of mining—0.45% if BC’s land base

Constitutional jurisdictionProvincial Federal

S. 109 – All Lands, Mines, Minerals, and Royalties…shall belong to the… ProvincesS. 92(13) - Property and Civil Rights in the ProvinceS. 92(a) was added to the Constitution in 1982, in response to western provinces seeking more control over natural resourcesS. 92A. (1) In each province, the legislature may exclusively make laws in relation to:

(a) exploration for non-renewable natural resources in the province

(b)development, conservation and management of non-renewable natural resources and forestry resources in the province, including laws in relation to the rate of primary production therefrom; and

(c) development, conservation and management of sites and facilities in the province for the generation and production of electrical energy

Export from provinces of resources(2) In each province, the legislature may make laws in relation to the export from the province to another part of Canada of the primary production from non-renewable natural resources and forestry resources in the province and the production from facilities in the province for the generation of electrical energy, but such laws may not authorize or provide for discrimination in prices or in supplies exported to another part of Canada.

91(1A) The Public Debt and PropertyFederal property is extensive in the territories – Yukon, Northwest Territories and NunavutOffshore minerals91(24) – Indians, and Lands reserved for the Indians92(10)(c) - Uranium – Atomic Energy Control Act, S.C. 1946, c. 37 declared all works for production and refining of uranium are “works for the general advantage of Canada”In the territories, in Yukon, NWT & Nunavut, any lands not owned by FN under Land Claim Agreements are Federal lands

Authority of Parliament(3) Nothing in (2) derogates from the authority of Parliament to enact laws in relation to the matters referred to in that subsection and, where such a law of Parliament and a law of a province conflict, the law of Parliament prevails to the extent of the conflictTaxation of resources(4) In each province, the legislature may make laws in relation to the raising of money by any mode or system of taxation in respect of

(a) non-renewable natural resources and forestry resources in the province and the primary production therefrom, and

(b) sites and facilities in the province for the generation of electrical energy and the production therefrom,

whether or not such production is exported in whole or in part from the province, but such laws may not authorize or provide for taxation that differentiates between production exported to another part of Canada and production not exported from the province.“Primary production”(5) The expression “primary production” has the meaning assigned by the Sixth Schedule.)Existing powers or rights(6) Nothing in subsections (1) to (5) derogates from any powers or rights that a legislature or government of a province had immediately before the coming into force of this section.

B. Ownership and rightsIn Barton, Canadian Law of Mining, the following four elements are identified:

1. Property law (ownership of land and minerals)2. Mining legislation (mining acts and regulations)3. Mining transactions4. Regulation (environmental, health and safety, etc.)

Crown Ownership -Province has “Crown title” to approximately 95% of BC

Aboriginal title form of title which overrides “Crown title” in many respects In BC west of the Rocky Mountains, only a relatively limited area of the land is covered by modern

treaties + some historic treaties on Vancouver Island In the Chilcotin area, the Tsilhqot’in Nation was successful in obtaining a declaration of Aboriginal title

over approximately 1,700 km2 from the Supreme Court of Canada in 2014-At common law, Crown title included title to all subsurface resources including minerals

If the Crown granted title to a third party, without reservation, in fee simple—that grant of title included title to the subsurface mineral resources (with the exception of gold and silver).

At common law, Crown recognized as the owner of gold and silver –any grant of land from the Crown, even if the grant was in fee simple, the Crown continued to reserve its ownership and rights over gold and silver – referred to as the “precious metals”

Crown Grants -Right of Crown to gold + silver part of Crown “prerogative”

Established in “Case of Mines” in 1567 which provided that all mines of gold + silver belong to the Crown Could go into any land and take the gold and silver

If mineral rights reserved by Crown, results in separation of ownership and rights to surface of land, and ownership and rights to subsurface minerals

Crown Ownership Crown grants of land by Dominion of Canada included rights to subsurface minerals up until 1887

1887, a Dominion Order in Council specified that all Crown grants: “shall reserve to Her Majesty, Her Successors and Assigns forever, all mines and minerals which may be

found to exist within, upon or under such lands, together with full power to work the same.” Provincial land grants after BC entered Confederation, 1871—varied w/ respect to reservation of mineral rights

Provincial grants always reserved gold and silver, but at various times reserved or did not reserve, coal and other minerals

Colonial period—Royal Proclamations expressly reserved the precious metals to the Crown However, generally, Crown grants included the rights to other minerals

NOW—Land Act, s. 50 specifies grants of Crown land reserve to Crown and convey no right, title, or interest to rights to all minerals, including coal, petroleum and natural gas

In colonial period, and prior to BC entered Confederation in 1871, Governor Douglas issued a Proclamation on February 14, 1859 which included the following:

All the lands in BC, and all the Mines and Minerals herein, belong to the Crown, in fee Unless otherwise specifically announced at the time of sale, the conveyance of the land shall include all

trees and all mines and minerals within and under the same, except mines of Gold and Silver.

BC-To understand title and rights to minerals in B.C. it is necessary to review the history of the land to determine:

Is it ungranted Crown land? in which case ownership of the land and minerals continues to be part of Crown title If surface land held by private owner under Crown grant—necessary to review Crown grant, regarding

date of Crown grant, to determine whether Crown grant conveyed an interest in minerals, or whether the minerals were reserved to the Crown.

If mineral rights under private ownership as part of Crown grant—minerals may be explored for, developed and produced as private property.

If minerals reserved to the Crown—necessary to determine whether third party has acquired a mineral claim to minerals under Mineral Tenure Act

If no claim made, and minerals not reserved A mineral claim can be made under the Mineral Tenure Act

Third party rights to minerals can be held, in BC, under several different tenures: Mineral rights may have been included in a Crown grant of land (excepting gold and silver) Under mineral tenure legislation prior to 1957, mineral claims could be converted to “Crown grants” as

an interest in land, and Since 1957, private party rights to minerals are limited to mineral claims and mineral leases

Mineral Resources Reserved to Government Policy of reserving minerals to the Crown preserves public ownership (from 1891) Influences the legal framework for development of mineral resources Preserves relatively free access to mineral resources

Where it is Crown land, and mineral rights have not been allocated, prospectors can go out and do exploration, acquire rights in underlying minerals

Raises issues due to separation of surface rights and mineral rights

The Precious Metals Case Under Terms of Union (1871) and s. 109 of the Constitution Act, all land, mines, minerals and royalties were

confirmed as belonging to the Crown in right of BC. Under Article 11 of the Terms of Union, B.C. agreed to convey to Canada, public lands (40 miles wide) along new

railway line to be undertaken by Canada (the Railway Belt). In the 1880’s, gold discovered under some lands in the Railway Belt. Controversy arose as to whether rights and

title to gold were owned by B.C. or by Canada. A stated case on the issue was presented to the Court.

The Privy Council, relying on common law, confirmed “precious metals” of gold and silver always belonged to Crown – with rights to “dig and carry away” the ores.

Court confirmed that Crown in right of B.C. owned precious metals – and conveyance of Railway lands to Canada reserved rights of B.C. to the precious metals. Accordingly, gold (and silver) belong to B.C.

First Nations

Blueberry River Indian Band v. Canada, [1995] 4 S.C.R. 344 1940 – the Band surrendered the mineral rights on its reserve to the Crown, in trust to lease for its benefit 1945 – the Band surrendered the reserve lands to sell or lease 1948 – DIA sold the reserve land to the Director of Veteran Lands for sale to veterans

But DIA inadvertently transferred the mineral rights along with the surface rights-Therefore, DIA breached its fiduciary duty by selling the mineral rights in 1948

Band entitled to damages (later set at approximately $160,000,000)

-Interest in reserve lands includes mineral rights (Blueberry) Aboriginal title includes mineral rights

Delgamuukw, para. 122 (see Land session) Aboriginal title would include the underlying mineral rights

C. Processes for allocating/acquiring/terminating resourcesMining LegislationLegislation specific to mines and minerals, and mining operations falls into two categories:

1. Legislation whereby Crown allocates rights to Crown minerals and how it resolves conflicts between surface owners and those with rights to the underlying mineral resources

In BC, these issues are addressed in Mineral Tenure Act2. Laws relating to operation of mines, including provisions for protection of health and safety, environmental

protection, and reclamation In BC, these issues are covered by the Mines Act + Regulations including the Health, Safety and

Reclamation Code Environmental RegulationIn addition to Mines Act and Regulations, mines subject to general environmental laws and regulations under, for example:

1. The federal and provincial Environmental Assessment Acts providing for the review of major projects;2. Environmental Management Act – requires permits for discharge of wastes including effluent permits, air permits,

and solid waste permits; and3. Federal Fisheries Act, and see the Metal Mining Effluent Regulations

D. Payments of rents, fees and royaltiesMineral Tenure Act

Definition of “mineral” Definition of “placer mineral”

Exclusions: coal, petroleum, natural gas (separately regulated) Exclusions: sand and gravel (belong to surface owner)

Mineral ClaimsFree entry system—minerals held in the public domainThe policy of provincial governments, particularly BC reserving minerals to ownership of Crown has had a significant influence on development of these natural resources

Foundation of what is known as “free entry” system, includes… Right of free access to lands in which the minerals are in public ownership Right to take possession of them and acquire title by one’s own act of staking a claim Right to proceed to develop and mine the minerals discovered

Mineral Titles The Mineral Tenure Act (MTA) recognizes four types of mineral title as follows (s. 12):

1. a mineral claim 2. a placer claim (not looking at this) 3. a mining lease 4. a placer lease (not looking at this)

Placer claims + placer leases similar, relate to minerals accessed from surface (e.g. such as panning for gold)

Mineral Claim “Mineral claim” = claim to minerals w/n area which located or acquired by registering claim in accordance with Act

Under s. 28 recorded holders of claim entitled to minerals held by government situated vertically downward from and inside the boundaries of claim

s. 28(2) specifies that interest of recorded holder of claim is chattel interest Banks providing financing more interested in financing interest in land, rather than a chattel interest

Exclusive entitlement – only recorded holder has rights to explore for & develop minerals covered by claim Note claim covers all minerals (within the definition of minerals under the MTA).

Includes gold and silver (excludes coal, petroleum and natural gas) Mineral Lease

mineral claim can, after meeting certain conditions and requirements, be converted to mineral lease Basic rights of mineral lease s. 48

s. 48(2), a lease is interest in land and conveys to lessee, minerals within and under leasehold together with same rights that lessee held as recorded holder of the claim

Higher form of tenure, can be granted for a longer period. Before developing mine, recorded holder of a mineral claim or claims will convert claims to mineral lease or leases

The Free Entry System

S. 7 & 8— person or corporation must hold free miner certificate to be registered as recorded holder of mineral claim or mineral lease.

Note that free miner certificate must be issued to individuals over 18 who are residents of Canada, or to a Canadian corporation, or to a partnership consisting of partners who meet those qualifications

A free miner certificate can be suspended under s. 10 for contravention of Act Land on Which a Free Miner May Enter

s. 11 – free miner may enter “mineral lands” to explore for minerals or placer minerals s. 11(2) – right does not extend to certain types of land s. 21 –restrictions against exploration and locating mineral titles in a park (cannot explore without consent) s. 22 –Chief Gold Commissioner may, by regulation, establish “mineral reserves” on land

Reserves often protect use of surface land for other purposes such as hydro-electric projects, transmission line, pipelines, roads, etc.

s. 22(2)(g) provides for refunds to be paid to recorded holder of a mineral title for sums if reserve established Important Definitions

“Exploration and development”—includes both physical exploration and development and technical exploration and development

Note that a free miner, who is not yet the recorded holder of a mineral claim or a mineral lease, will not qualify to obtain permits necessary to do any form of mechanical exploration, as discussed below

Prior to becoming the recorded holder of mineral claim, a free miner would be limited to very limited forms of exploration (small sampling of rocks, etc.)

Registration of Claims-Until 2005 in BC, mineral claims could only be located and registered by placing wooden stakes in the ground to mark boundaries of claim

2005— mineral claims are now registered through an online system A person or corporation with free miner certificate can go online, identify areas of Crown land that are not covered

by mineral claims, and can register claims with payment of a prescribed fee The registration fee is $1.75 per hectare for mineral cell claims “cells” are set out in Mineral Title Online Grid Regulation See the handout showing how the cells are established in accordance with land surveys

MTA Regulation—an individual claim may consist of up to 100 complete or partial adjoining cells Note: a cell is approximately size of a quarter section under historic land survey methods – a roughly

square area of approximately one-half mile by one-half mile (800 m x 800 m) Requirements to Maintain a Claim

Mineral claim has expiry date – s. 1 one year after date that a claim is recorded or registered, and includes an expiry date as revised under s. 29

s. 29 – claim can be extended from year to year by doing exploration and development or making payments instead of exploration and development

Value of exploration development required to maintain a mineral claim for one year is at least $5.00 per hectare for each of first and second anniversary years, $10 per hectare for third and fourth, $15 per hectare for each of fifth and sixth, and $20 per hectare for each subsequent anniversary year

In lieu of conducting exploration and development work on a claim—payment of double value of exploration and development requirements be paid to maintain claim

Rights of Access

s. 11.1 –recorded holder of a mineral title (claim or a lease) must be issued a permit under the Forest Practices Code of BC for access to minerals

s. 14—recorded holder may use, enter and occupy the surface of a claim or lease for the exploration and development or production of minerals

Primary provision which gives mineral title holders necessary access to surface land The right to get on any surface land s. 14(2)—no mining activity may be done by recorded holder until holder receives permit, if any,

required under s. 10 of Mines Act ss. 15 and 16 –access to Crown land s. 17—Minister may restrict use of Crown land if the Minister considers that all or part of the surface area

contains a cultural heritage resource, or that area “should be used for purposes other than a mining activity” No compensation is payable in accordance with s. 17(2)

Right of Entry on Private Land

s. 19 –rights of mineral title holder to access private land s. 19(1) provides that a person must not begin a “mining activity” unless notice is first served on private owner

of every surface area, lease of Crown land, or holder of a disposition of Crown land under Part 5 of Land Act Includes exploration

At least 8 days’ notice must be given under s. 19 before commencing the mining activity s. 19(2)—owner of the surface is entitled to compensation for loss or damage caused by the activities

on their land s. 19 includes provisions for Chief Gold Commissioner to use his or her best efforts to resolve disputes between

mineral title holder and surface owner, and ultimately for dispute to be referred to Surface Rights Board established under Petroleum and Natural Gas Act

Surface Rights Board required to give priority to holder of rights applied for first, and Surface Rights Board may determine conditions of entry and amount of compensation payable

Mining LeasesPart 3—provisions for replacing a mineral claim with a lease

Conditions not difficult—pay prescribed fee, providing land survey, posting notice of application for lease.

- s. 42(3), initial term of lease not longer than 30 years on conditions Chief Gold Commissioner considers necessary

s. 42(5) provides that if lessee complies with Act and Regulations and any conditions of mining lease, further renewal of mining lease for further terms not exceeding 30 years each can be obtained

s. 50—annual rental payments for leases, failure to pay may result in forfeiture of lease Annual rental payment is $20 per hectare

Compensation for Taking Claims

Designation as a park will entitle mineral title holder to compensation (Mineral Tenure Act, s. 17.1). Security of Tenure

Security of tenure is important principle meaning— “holder of mineral claim has exclusive right to explore for and develop any minerals discovered; and a right to

obtain a mining lease to authorize development of a mine”

Basic premise—rules respecting right to produce minerals under claim should not be changed after an investment made and valuable minerals discovered

Security of tenure important to encourage private investment in exploration/development of mineral resources Countries in South America, and in Africa, will attract (or discourage) investment depending on laws respecting

security of tenure In BC, in 1973, Mineral Act amended to give discretion to Minister respecting issuance of mineral lease. Investment in

mining declined – due to lack of security of tenure—In 1977, discretion removed and security of tenure restored-Now, under the MTA, right to a mineral lease to develop a mineral deposit

Important note—environmental assessment requirements create uncertainty respecting right to develop a mine “Tenure” is secure, but company must show it can construct and operate mine without significant environmental

impact before authorized to proceed.

Payments to the Crown for Mineral Resources Mineral Land Tax Act, RSBC 1996, c. 290 Mineral Tax Act, RSBC 1996, c. 291

2% tax on “net current proceeds” 13% tax on “net revenue”

Revenue Sharing with First Nations

Afton mine near Kamloops – Secwepemc Nation (SSN) Mt. Milligan mine project – McLeod Lake Band Economic and Community Development Agreement

E. Sustainability and environmental protection The stages of mining

Exploration/discovery – Mineral Tenure Act Environmental assessment/permitting - EA legislation Construction Production Closure and reclamation

Mines Act Requirement Before starting any work in, on or about mine, owner, agent, manager or any other person must hold permit issued by

Chief Inspector of Mines under s. 10(1) of the Mines Act Application for a Section 10 permit must include:

(1) Details of proposed work (2) A program for conservation of cultural heritage resources and for protection and reclamation of land,

watercourses and cultural heritage resources affected by mine (3) Any information and maps established by Regulations or Code (Health, Safety and Reclamation Code)

Broad definition of “mine”—includes any mechanical disturbance of ground or any excavation to explore for minerals, and all activities including exploratory drilling, excavation, processing, concentrating, waste disposal + site reclamation

Reclamation and Closure Part 10, Health, Safety and Reclamation Code—further details on mine plan and reclamation program which must be filed

under s. 10(1) of the Mines Act

Application must include detailed baseline information, and mine plan describing mining methods, development schedule, details of all facilities, and Plan for Environmental Protection of Land and Watercourses during Construction and Operation

Before commencing construction, owner of the mine required to post security for reclamation to cover full costs of reclamation at each stage of construction, operation and ultimate closure of mine

F. Regulatory requirements and conditions Mines Act permit and reclamation plan Access to surface rights

Mineral Tenure Act, ss. 14-19 Water licences Effluent permits Air permit

G. Environmental BCEAA

Reviewable Projects Regulation, Part 3, Mine Projects (see session on Environmental Assessment) CEAA, 2012

Regulations Designating Physical Activities – mines of certain type and capacity

H. Interprovincial/international issues

I. Case studies and policy issues Prosperity Gold-Copper Mine near Williams Lake B.C. environmental assessment, under BCEAA, recommended the project to proceed – environmental effects

not significant Federal environmental assessment, under CEAA, recommended the project should not proceed - environmental

effects would be significant

J. Aboriginal consultation

FOREST RESOURCESConstitutional jurisdiction

Provincial Federals. 109 –Right to manage lands in the provinceS. 92(13)—Property and civil rights

General laws of application Often Municipality regulates specific trees on private

landS. 92a(1)(b)—Make laws with regard to non-renewable natural resources and forestry resourcesS. 92(a)(2)—Laws about the export of non-renewable natural resources and forestry resources

s. 91(12)—Fisheries protections. 91(10)—Navigable waterss. 91(24)—Indians and Lands reserved for Indians

Natural resource regulations on reserve land (pretty similar to provincial regulations)

Legislative framework BC-Forest Act— Parts 1,2, 3, Div 1, 2 (Forest Licences), 3 (Timber Sale Licences) + 6 (Tree Farm Licences), Part 7, s. 105 (Stumpage), s. 111 (Rent), and Part 10 (Manufacture in British Columbia)

Deal with issues of tenure +allowable annual cut-Forest and Range Practices Act— Part 1, Part 2 (Forest Stewardship Plan), Part 5 (Protection of Resources)

Governs how forestry is carried out Deals w/ environmental protection

Forest Planning and Practices Regulation— Part 1, Part 2 Forest Stewardship Plans and government objectives

Regulation for protecting wildlife

Legislative framework BC-Fisheries Act—s. 35

Can't harm fish habitat, dump things into streams (e.g. In logging operations)

Define fish habitat as “riparian habitat” including banks of the stream

30m on each side is riparian

Species at Risk Act—to be reviewed in Wildlife session But no general jurisdiction over endangered species on

provincial, could declare it applies if it seems that province is not doing adequate work

B. Ownership and rightsPublic vs Private Ownership-95% of land in BC is Provincial Crown land (Only 5% of BC land base is privately owned)

Public ownership allows government to manage—determine long term preservation, cutting and growth Private—small but significant

Are some prime areas that a privately owned (near railway)First Nations-Reserve lands-Aboriginal title (Tsilhqot’in)

Rights to harvest timber Forest lands under modern treaties

History of forest policy-Begins with First Nations use and occupation

Existing rights recognized and confirmed – Constitution Act, 1867, s.35 Rights to use and occupation for traditional purposes

Aboriginal rights (hunting, gathering, medicinal use + some forest harvesting) Many of major case on consultation have originated based on forest rights (Haida)

-Colonial Era – to 1871 Crown grants of forest lands, and railway grants included rights to timber 1865 Land Ordinance – granting forest harvesting rights (tenure) while maintaining public ownership of Crown land

-Post Confederation 1884 – Timber Act – addressed harvesting rights (tenure) on Crown lands, and introduced stumpage fees – the charge

payable to the Crown for each volume (m³) of timber harvested

-1912-Origin of Forest Act Beginning of sustained yield management + allowable annual cut 1947—amendments to Forest Act and changes in tenure system

Established forest management units, regulated harvesting rates and long-term sustainable yield Introduced distinction between “volume based tenures” and “area based tenures”

Volume based less managed than area based Area—exclusive right to harvest in a certain area + higher obligations to manage that forest

Public Sustained Yield Units—several companies would hold Timber Sale Harvesting Licences – each granting the rights to harvest a specified volume of timber = a “volume based tenure

Forest Management Licenses—different form of tenure, companies were granted exclusive rights to harvest timber within a specified area = “an area based tenure”

Often required companies invest in manufacturing + have to harvest a certain amount Under area based tenures, the companies were required to process the timber in saw mills

(creates employment) and to manage the forests, including reforestationPearse Commission (1976)

Recommended larger public mgmt. units linked w/ manufacturing communities—Timber Supply Areas Resulted in new Forest Act

1978 – New Forest Act Established 33 timber supply areas New provisions for determining Allowable Annual Cut (“AAC”) Increased obligations on forest companies for sustainable management including reforestation Increased opportunities for public input on AAC and sustainable management

1995-Forest Practices Code Set stringent conditions respecting the conduct of forest planning and harvesting, protection of old

growth forests, and protection of watersheds and the environment Established fines and penalties if companies made mistakes

Replaced by Forest and Range Practices Act – 2004 Code was too prescriptive These sets objectives, held to account for achieving objectives

2003—Forestry Revitalization Act Holders to return 20% of their harvesting rights to the Crown Half of these volumes re-allocated to First Nations and small tenure holders Other half was sold at public auction, to provide a market and market value for timber

C. Processes for allocating/acquiring/terminating resourcesTimber Tenure System (under current Act)-Act gives Minister power to allocate tenures, but Act prescribes how it’s going to be done

Public auction, competitive bids, have to take highest bid (or take none if they think bids too low) Timber tenure = the agreement (in contract form) which grants rights to harvest a specified volume of timber

Defines and constrains a person’s right to harvest provincial timber A tenure agreement is required before harvesting Crown timber

Objective of system Encourage maximum productivity of the forest and range resources in B.C. Manage, protect and conserve the forest and range resources of the government, having regard to the

immediate and long term economic and social benefits they may confer on B.C Plan resources to harvesting/production/livestock/revitalization Balance all the interests

LegislationForest Act—

Provide the structure for the tenure system, setting out: Forms of agreement for selling Crown timber + the factors that must be considered when this occurs The rights and obligations of each form of agreement Rules about the administration of tenure s such as cut control and payments

Classification (part 2) Provincial forests – s.5 Wilderness areas – s.6 Timber supply areas – s.7

Rights to crown timber—s. 11 Subject to the Land Act + Park Act, rights to harvest Crown timber must not be granted by or on behalf

of the government except in accordance with this Act and the regulations Form of agreements—s. 12

“Subject to this Act and the regulations…a district manager…behalf of the government, may enter into an agreement granting rights to harvest Crown timber in the form of:

(a) Forest licence, (c) Timber licence, (d) Tree farm licence, (e) Community forest agreement, (e.1) First nations woodland licence, (f) Community salvage licence, (g) Woodlot licence, (h) Licence to cut, (i) Free use permit, (j) Christmas tree permit, and (k) Road permit

(2) A timber sales manager may enter on behalf of the government into an agreement granting rights to harvest Crown timber in the form of a

(a) Timber sale licence, (b) Forestry licence to cut, or (c) Road permit

Main tenures— Forest licences (60%), Tree farm licenses (20), Timber sale licenses (17%)

Forest Licences S. 13—Application for forest licenses

Tells us about competitive bidding [13(2)], at request of company or ministers initiative Bonus bid—rate for acre depending on species Bonus offer—amount of money, lump sum

Bid must include amount to cover stumpage + bonus bid or offer in the amount required [13(3)(b)] May accept application from highest bidder or decline all bids [13(4)]

S. 14—content of Forest Licence Volume based tenure Term not exceeding 20 years, (subject to replacement) Must specify the area in which the holder may harvest timber + must specify an allowable annual cut Payment of stumpage

S. 15—Replacements 4-9-year anniversary of licence Application to extend licence Minister may decline if company has not paid, done bad things etc. [15(2)]

s.8 allowable annual cut—chief forester determines at least once every 10 years

Tree Farm Licences S. 33—Applications

Public hearing provisions—member of public can come in and submit that specific area should become a tree farm

How application is to be structure [33(5)] Competitive bidding, highest or none [33(6)]

S. 35—Content of licence 25-year term Area based tenure Tree farm licence area Stumpage payments Allowable annual cut Exclusive right to harvest within tree farm licence area [35(1)(e)] Other provisions

(j) Licence can require that 50% is harvested by someone under contracting S. 35.2—management plans

Management plan must be approved in accordance w/ regulation Rate, sequence, methods, volume of harvesting

S. 36—Replacement of licence Certain windows

Timber Sale Licences S. 20—Competitive bidding— Issued by Timber Sales Manager based on competitive bidding S. 22—Content of licences

Volume based tenure in specified area Term up to 4 years

Objective is to break up forest, allow small companies to establish themselves

Tenure Re-Allocation Plan-Forestry Revitalization Act– not required reading

Required current large tenure holders to return about 20% of replaceable tenure to the Crown – s. 2, Schedule 1/2 of the AAC redistributed to open up opportunities for First Nations, community forests and woodlots Remaining 1/2 sold at auction to increase the portion of timber going to open markets

Right to compensation for rights returned to the Crown – FRA, ss. 6-9, $200M set aside to provide compensation

Allocation to First Nations-Mechanisms

Accommodation agreements Tenure agreements

Sharing a portion of forest revenues

D. Payments of rents, fees and royaltiesPayments to the Crown

Stumpage (Forest Act, s. 105) Annual rent (Forest Act, s. 111)

Stumpage= Price paid for Crown timber per cubic metre

Objective is that stumpage equals fair market value for timber Calculation

Stumpage = selling price - operating costs + profit margin Determined by Ministry of Forests Use appraisal manuals as guidelines for cost

Stumpage issues Least cost approach—can’t artificially inflate costs Fairness and equity Reflecting fair market value (see below concerning trade issues with U.S.A.)

E. Sustainability and environmental protection-No environmental assessment process that applies to harvesting, does apply to pulp mills-There is assessment on “allowable annual cut”

Determining the Rate of Harvest-Allowable annual cut (“AAC”)

Forest Act, s. 8 AAC set for:

(1) Timber supply areas—Need to determine total AAC in that area (2) Tree farm licence areas

Considers—(below)

Sustainability issuesSierra Club of Western Canada v. British Columbia (Chief Forester) (1993)-F: Issue about old-growth forest and regrowth

Argue that AAC should be based on long term sustainable, not high yield now which will fall to “fall down” low yield in the long run (100 years to 60 years of growth)

Internal appeal board said Chief Foresters decision was arbitrary JR by Sierra Club—Dismissed, was not for court to step in, was within reasonable range

-A: Issue moot on appeal because Act changed Interpretation on sustainability—Sierra Club means sustain in perpetuity, Court said no too narrow of an interpretation,

there is discretion in AAC

Western Canada Wilderness Committee v. British Columbia (Chief Forester) 1998-F: Spotted owl case, needed wild ranging forest

Chief Forester—spotted owl protection is a largely land use plan issue, not for me to effectively make a land use planning determination

-A: Court—not legal jurisdiction issue, Forester can consider a lot of issues and doesn't specifically need to consider owl Challenges to AAC—very different to get Court to even think about challenging

Guiding Principles on AAC-Guiding principles include (Forest Act, s. 8):

(a) The rate of timber production that may be sustained on the area, taking into account (i) The composition of the forest and its expected rate of growth on the area, (ii) The expected time that it will take the forest to become re-established on the area following denudation, (iii) Silviculture treatments to be applied to the area, (iv) The standard of timber utilization and the allowance for decay, waste and breakage expected to be applied

with respect to timber harvesting on the area,

(v) The constraints on the amount of timber produced from the area that reasonably can be expected by use of the area for purposes other than timber production, and

(vi) Any other information that, chief forester’s opinion, relates to the capability of the area to produce timber (b) The short and long term implications to British Columbia of alternative rates of timber harvesting from the area, (d) The economic and social objectives of the government, as expressed by the minister, for the area, for the general

region and for British Columbia, and (e) Abnormal infestations in and devastations of, and major salvage programs planned for, timber on the area

Protection of Forest Resources-Forest and Range Practices Act (“FRPA”)

Part 2 – Forest Stewardship Plans, ss. 3-6 Part 5 – Protection of Resources Where we find terms for “environmental protection”

S. 5—Forest stewardship plans addressing harvesting, required Must include: specify intended results in relation to objectives set by government + under Act Planning, road building, logging, reforestation and grazing and objective for protecting the

environment

-Forest Planning and Practices Regulation, Objectives, ss. 4.1-10 Establishment of government objective s. 4.1 Objectives for stewardship plans

F. Regulatory requirements and conditions See tenure terms above See forest stewardship plans above

G. Environmental-B.C. Environmental Assessment Act, Reviewable Projects Regulation, Part 2, Table 4, Forest Products Industries (to be reviewed later under the Environmental Assessment session in this course)

No environmental assessment for harvesting activities BUT continuously regulated by AAC, forest stewardship plans, etc.

Pulp mills and the like do need environmental assessment Believe that environmental built right into planning of industry

H. Interprovincial/international issuesRestrictions on log exports-Forest Act, Part 10

S. 127—unless exempted, timber harvested under Crown land must be used or manufactured in BC Basic premise that ground timber needs to be used in BC or manufactured into wood products in BC

before you export Exemptions

S. 128—Cabinet may exempt species of timber/ volume of timber when they get an application to do so Cabinet must not give exemption unless Minister satisfied that…

(a) timber will be surpluses to timber production in BC/BC is full, (b) timber cannot be processed economically in vicinity of land from where it is cut or

transported economically to be processed somewhere else or (c) exemption would prevent waste or improve utilization of timber cut from BC

David Suzuki Foundation v. BC -F: Brought in evidence that it was not surplus and was economical to process here

Argued (1) losing value and being environmentally damaging by not processing here (2) community missing out on economic opportunity

-A: Came down to discretion of the Minister Not able to make a determination of fact, but not about what court believes, up to minister If Cabinet is satisfied, not for us to determine

I. Case studies and policy issuesTsilhqot’in Nation v British Columbia, 2014 SCC 44Provincial jurisdiction over forests on aboriginal title-F: Began as claim about inadequate consultation on forest licence projects

Someone was granted volume based licence, became claim for aboriginal title TJ—failed on technical grounds, if I could’ve would said title on small area CA—can only make claim over specific territory not broad

-A: SCC, no broader approach, was semi-nomadic exclusive occupation granted Interested in jurisdiction over forest, does Forest Act apply to AT? Do provincial laws generally apply

Yes, not exclusive jurisdiction of federal government Aboriginal recognition and protection applies to federal and provincial territory Both have to take into account provisions of s. 35

Jurisdictional immunity not applicable Forest Act applies to exercises of Aboriginal rights, probably have to amend the Act

But, provisions about AAC or protection do apply

OIL & GASTotal Oil Reserves Estimates: A measure of the volume of oil or gas in the ground

Have to calculate reserves carefully by qualified professionals to get your estimate Definitions of total proved oil reserves, estimated by government regulators:

“The amount of oil that can be recovered from known reservoirs under current technology and present economic conditions.”

Estimates of “probable reserves” and “possible reserves” – both of which are more speculative and less certain Oil, Canada—estimated 172 billion barrels

168B = oil sands// 5B – conventional, offshore and tight oil// Production—approx. 1.7B barrels per year Natural gas, Canada—72T cubic feet

Industry Structure: Western Canada Sedimentary Basin (57% of oil in Canada)

Covers all of Alberta and natural gas in northern BC Shale gas in BC (Liquid Natural Gas)—requires fracking Pipelines

In BC—Oil and Gas Commission National—National Energy Board

-Upstream – ownership of resources, exploration and development (what were focused on)-Midstream – transportation (pipelines), also marine and rail, and processing (gas plants, oil refineries)-Downstream – retail marketing and distribution of oil and gas

Consumer level

-Conventional: Basic oil and gas reservoirs accessible by conventional drilling and production methods-Unconventional: Shale gas, material found in very fine grained sedimentary rock

Gas is released by high water pressure used to fracture the sedimentary rock

A. Constitutional jurisdiction

Provincial FederalSections of Constitution

-BC has jurisdiction up to the high-water mark-Provincial jurisdiction

S. 92(13)—Property + Civil Rights in the Province

S. 92A(1)(2) and (4)—Natural Resources

-Offshore of western BC is federal jurisdiction-Federal jurisdiction

S. 91(2) – The Regulation of Trade and Commerce S. 91(12) – Sea Coast and Inland Fisheries S. 91(24) – Indians, and Lands reserved for the Indians S. 92A(2) and (3) – Natural Resources exports between

provinces S. 92(10) – Works and Undertakings extending beyond the

limits of a Province (e.g. pipelines)Jurisdiction for inter-provincial pipelines

Legislative Petroleum and Natural Gas Act National Energy Board Act

framework Oil and Gas Activities Act

Legislative framework (BC)—2 partsAcquiring oil and gas rights–granting tenures (PNGA, Part 9)

Deals with crown reserves, disposal of Crown reserves-Relationship between surface rights owners and oil and gas tenure holders (PNGA, Parts 16 and 17)

Part 16—entry on restricted land or unoccupied crown land Part 17—Entry on private land and the Surface Rights Board

Exploration, production and other oil and gas “activities” Oil and Gas Activities Act

Pipelines: Certificate to construct and operate a provincial pipeline – OGAA permit Certificate to construct and operate a federal pipeline – National Energy Board Act, ss. 30-32, 52

Regulatory authorities-Ministry of Energy, Mines and Petroleum Resources (PNGA)

Responsible for issuing oil and gas rights under the Petroleum and Natural Gas Act-Surface Rights Board

Right of entry orders on private land + mediation/arbitration b/w surface owners + companies oil/gas rights-Oil and Gas Commission (OGAA)

Responsible for issuing permits and authorizations for oil and gas activities, including: Exploration; Development; Pipeline transportation; and Reclamation

B. Ownership and rights- Crown – in B.C. -Most of the oil and gas resources in B.C. are located in northeast B.C. – virtually all Crown owned

Land issued to railway and settlors in BC away from where oil is now, no private land ownership in North-East BC

Crown/Private in Alberta In Alberta, approximately 81% of oil and gas resources are Crown owned vs. 19% are privately held

Lands granted to the Hudson’s Bay Company Railway companies (CPR and CNR), and to early settlers

Referred to as “freehold lands” Companies often acquire privately-owned oil under Ks known as Oil + Gas Leases or “Freehold Leases”

First Nations ownership Reserves Aboriginal title—includes underlying oil and gas

But, issues with Treaty 8 in North-East BC (where oil is), limits rights, made it Crown Land Modern Treaties (e.g. Nisga’a Treaty, definitions of mineral resources and who owns what)

Might have right to surface rights only

Offshore Ownership Re Offshore Mineral Rights of BC

Confirms that the boundaries of British Columbia end at the low-water mark BC doesn’t have ownership or legislative jurisdiction over resources in the territorial sea or the

continental shelf In the territorial sea, Canada has ownership of resources and legislative jurisdiction In the continental shelf, Canada does not have ownership of the resources

BUT has the right to explore for and develop the resources under international law, and legislative jurisdiction under the peace, order and good government power

Re Nfld Continental Shelf Tried to argue they were an international state so they should get extended Court found Nfld in same position as BC, colony so does not have status of sovereign state prior to 1949

Eventually made agreement with Canada (get %50+ royalties)

Ownership Issues in Common Law-Oil and gas are migratory—Can move within the confines of a reservoir

If a well commences production, it reduces pressure at its location and oil and gas from other parts of the reservoir will move toward the lower pressure

-Result – a single well can pull in oil and gas from adjacent properties located over the reservoir Rule of capture—who every takes it out the ground owns it

Whichever party “captures” the oil or gas through a well on their own land becomes the owner of the product – even if part of it is drawn away from under neighbouring lands

Problem is that if rule is not modified, result is 3 wells trying to pull out as much oil as they can as fast as they can

Could lead to multiple wells and rushed extraction

C. Processes for allocating/acquiring/terminating resourcesBC Oil and Gas Tenure system—the Titles Division of the Ministry of Energy, Mines and Petroleum Resources manages oil and gas rights

Issuing rights in an equitable manner, administering issued rights + collecting revenues associated w/ right

Acquiring Oil and Gas Tenure in BC-Petroleum and Natural Gas Act

S. 71(1) – the minister (i.e. the Minister of Energy, Mines and Petroleum Resources) may dispose of Crown reserves of petroleum and natural gas…under terms the minister sees fit;

S. 71(2) – a disposition under this section must be by public auction or public tender, not sooner than 2 weeks after publication of a notice of the intended disposal in the Gazette

-Not like mineral claims where you stake a claim and then search, done by public auction Different because you can get a good sense of the potential oil under the ground (don't need to go exploring) Crown was control, make sure it gets maximum value

Tenure Rights-Tenure rights include:

(1) Exclusive rights to the subsurface resource + (2) Rights to apply to the Oil and Gas Commission (OGC) for activities approval (i.e. exploration, drilling, etc.)

Tenures generally authorize exploration and development work, specific approvals required before conducting oil and gas activities (see below – OGAA)

Are transferable

-Forms of tenure: Exploration Permit (of historic interest only – none currently used, ignore) Drilling Licence

Form of title to a parcel of Crown reserve petroleum and natural gas rights Confers right to explore for petroleum + natural gas Term of licence is 3-5 years Annual rental is $3.50/ha May apply for a PNG Lease

Petroleum and Natural Gas Lease (PNG Lease) Grants the exclusive right to explore for and produce both petroleum and natural gas from the location

of the lease (PNGA, s. 50) Holders of Drilling Licences may apply for a PNG Lease Annual rental is $7.50/ha

-Tenure auction—

Monthly auctions of tenure, proposed tenure advertised 7 weeks prior to sale date Industry nominates parcels for each auction

Proposed parcels are referred to First Nations, local governments and Provincial agencies Caveats may be added to proposed tenure

Parties submit sealed bids, can include “bonus bids” Amount of hectares disposed and tender bonuses have gone down in recent years

Sharing production—oil and gas tenure need to address movement issues (rule of capture), addressed through spacing, pooling and unitization

Spacing—Need a certain about of space to drill a well PNGA Normal spacing areas (NSAs)

s. 65(1)(a) – NSA for petroleum well = the boundaries of a unit s. 65(c)(i) – NSA for a natural gas well = 4 units A “unit” is roughly equivalent to the traditional mapping system of “1/4 section” or about 160

acres (about 60-70 hectares) Pooling—If you don't have a normal spacing area, 2+ may pool their locations for joint development

2+ holders of locations in a spacing area may pool their locations for joint development – PNGA, s. 68(1) Alternatively, the Minister may order pooling– PNGA, s. 68(2) Pooling agreement or order will provide for the proportions in which production is shared

Unitization—Larger areas that may be joined Minister may specify a unitization agreement, PNGA, s. 114 Minister may consider an application of a rights holder or a number of rights holders for a unitization

agreement – PNGA, s. 115 Unlike pooling, unitization is not limited to a spacing area, encompasses entire field, pool or reservoir

Unitization and pooling, alternative to avoid the rules of capture

D. Payments of rents, fees and royalties-in addition to the sale price on auction of tenures (above in Process for allocating)Royalty payments—PNGA, Part 10

Royalties are generally a percentage of production or value payable to the government

Revenue sharing agreements with First Nations E.g. Amended Economic Benefits Agreement, 2009, w/ Dog River, Prophet River and West Moberly First Nations

Natural gas royalties—The royalty percentage varies depending on: Volume of production Market prices for natural gas Date of the petroleum and natural gas tenure acquisition Processing, transportation and water handling costs (coalbed gas only) Eligibility for targeted royalty programs

-Petroleum royalties—The royalty percentage varies depending on: Monthly production volumes Date the oil pool was discovered (old oil, new oil, third tier oil) Classification or grade of the oil produced (heavy oil, light oil) Average sales price received by the producer

E. Sustainability and environmental protection-Sustainability: No “allowable annual” rate like in forestry, don't limit production

-Environmental protection OGAA, s. 36 Environmental Protection and Management Regulation

Objectives – ss. 4-8 Objectives with respect to water quality, riparian values, wildlife habitat, old growth mgmt.

“In deciding whether to amend a permit under section 31 (7) of the Act or grant an extension under section 32 (5) of the Act, the commission must consider whether the amendment or extension, as applicable, is consistent with the government's environmental objectives set out in Division 1 of this Part”

Environmental protection and management requirements, ss. 9-21 S. 21—broad definition of oil and gas activities, need a permit to do all of those

F. Regulatory requirements and conditions-Oil and gas activities, defined in the OGAA, s. 1:

“Oil and gas activity” means (a) Geophysical exploration, (b) The exploration for and development of petroleum, natural gas or both, (c) The production, gathering, processing, storage or disposal of petroleum, natural gas or both, (d) The operation or use of a storage reservoir, (e) The construction or operation of a pipeline, (f) The construction, use or operation of a prescribed road, and (g) The activities prescribed by regulation Exploration on the surface

OGC regulatory authority-Authority to issue a broad range of authorizations normally administered by other government agencies and Ministries

See s. 8 of the OGAA and the definition, in s. 1, of “specified enactments” Provides that they can grant authorities under other enactments

OGC can, for example, issue: Air, effluent, and solid waste permits under the Environmental Management Act (normally administered

by the Ministry of Environment) Licences to cut (Forest Act) Crown land authorizations (Land Act) Water use licences, etc. (Water Sustainability Act)

-Purpose is to provide a single regulatory agency (the OGC) with broad authority to issue the various government authorizations required by companies operating

Would otherwise have to ask other industry commissioners Criticism—doesn’t maintain sufficient arm’s length regulation of environmental protection

Permits required for oil and gas activities OGAA, Division 1, ss. 21-33 and 35-37 (environmental protection)

21—permit required 22—consultation and notification, if you want to put well on/within a few metres of someone’s property

Neighbour/owner of surface rights can make claim, have standing Appeal as they are directly affected (right of appeal limited to property owner)

25(2)—commission has to give consideration to environmental objectives (below) Restoration requirements

OGAA, ss. 40-43

Environmental objectives Environmental Protection Management Regulation

S. 4 – water protection S. 5 – riparian (river bank) values S. 6 – wildlife and wildlife habitat S. 7 – old growth management areas, resource features, cultural heritage resources

Environmental Protection and Management Requirements EMPR, S. 9-20

Includes restoration/reclamation

Surface Rights**Need a “Right of Entry Order” from Surface Rights Board to enter the private land for oil and gas activities**

Common law—owner of mineral rights (including oil and gas) had rights to the “extent reasonably necessary” to enter onto the surface to explore and develop minerals (Borys v CPR)

NOW, statute, holder of oil and gas rights may not enter, occupy or use private land for an oil and gas activity Except under a surface lease with the landowner, or a “Right of Entry Order” issued by the Surface

Rights Board (PNGA, s. 142) Statute goes further in confirming right of access for oil and gas activities such as pipelines and roads – even

where the operator doesn’t hold the underlying oil and gas rights Incentive to make deal w/ property owner rather than go to arbitration

Surface Rights under the PNGA-PNGA, part 16—access to Crown land

S. 138-140 s. 138 – unoccupied Crown land s. 139 – development roads s. 140 – “restricted land” – is generally land whose use is restricted under other enactments

(a) Crown land that is used or occupied by or on behalf of the government; (b) land granted by the government to a railway company under an Act that is used or occupied

by or on behalf of the railway company; (c) Crown land to which access is restricted or prohibited under another Act

Normally, Minister responsible for Crown lands has authority for issuing rights to Crown land In the oil and gas industry— OGC is given authority under s. 8 OGAA, to issue rights to Crown land (See OGAA, s. 8 and the definition of “specified provision” in s. 1)

Land Act—set guidelines for payments to the Crown, rental rates, grants, leases, lcences of occupation or rights of way

-PNGA, Part 17—access to private land, s. 141-181 Did not give power to the OGC to authorize entrance on to private land S. 142—Subject to s. 39 of the Oil and Gas Activities Act, a person may not enter, occupy or use land

(a) To carry out an oil and gas activity, (b) To carry out a related activity, or (c) To comply w/ order of the commission, unless entry, occupation or use is authorized under (d) A surface lease with the landowner in the form prescribed, if any, or containing the prescribed

content, if any, or (e) An order of the board

Need a surface lease w/ landowner or a “right of Entry Order” from Surface Rights Board PNGA s. 142 S. 143—outlines considerations for rent and compensation

Rents and compensation PNGA s. 143 S. 154—considerations in determining amount

Geophysical Exploration Have to have agreement w/ owner of the land Not possible to get a “Right of Entry Order” from the Surface Rights Board for geophysical exploration

S. 144, 145(1) PNGA

Pipelines S. 145(2) specifies that the provisions of Part 17 (relating to entry on private land) do not apply to pipelines,

other than a flow line Entry for pipelines is either by agreement or by expropriation

If you do have lease—4 year review requirement S. 165 PNGA

Process Application to Surface Rights Board

Mediation/arbitration—Property owner can reject Right of entry order w/ a security deposit Determination of rent/compensation at another hearing S. 148-162 PNGA

Agreement—enter into surface lease (right to enter, lump sum payment, annual payment, stat clauses, review of annual compensation every 4 years_

Disagreement—Right of Entry Orders

Right of Entry Orders-Have to have to in order to carry out oil and gas activity

Under S. 157 to 162, the Board has given authority to issue a “right of entry order” authorizing the company to enter, occupy or use land

To carry out an oil and gas activity, To carry out a related activity, or To comply with an order of the Commission

-Arises where company + land owner not able to reach agreement on the terms of a Surface Lease Either party may apply to the Board for mediation and arbitration

S. 159—gives Rights Board the authority to grant right of entry subject to terms and condition Have to post security deposit (estimated value of reclaiming the site), s. 160

-S. 154—used to determine the value—In determining an amount to be paid periodically or otherwise on an application under this Part, the board may consider, without limitation, the following: (ARC v Millers)

(a) The compulsory aspect of the right of entry; (b) The value of the applicable land; (c) A person’s loss of a right or profit with respect to the land; (d) Temporary and permanent damage from the right of entry; (e) Compensation for severance; (f) Compensation for nuisance and disturbance from the right of entry; (g) The effect, if any, of one or more other rights of entry with respect to the land (h) Money previously paid for entry, occupation or use; (i) The terms of any surface lease or agreement submitted to the board or to which the board has access; (j) Previous orders of the board; (k) Other factors the board considers applicable; (l) Other factors or criteria established by regulation

Surface Rights Board-has authority under s. 157-162 to issue “right of entry order” authorizing company to enter, occupy or use the landARC Petroleum v Millers, 2010Right of Entry Order-F: Company and family don't agree-A: Issued entry order under certain conditions

Interim payments: security, compensation for operations Maintain the soil Vehicles for farming can cross pipelines, (have to bury the pipelines sufficiently deep to do that)

2011 Decision, ARC v MillersFinal decision on what they need to pay, matter before Surface Rights Board-A: Couldn't come to terms on compensation, arbitration

Land owner’s right to compensation is to the extent of loss or damage incurred/reasonably foreseeable as a result of entry Upper limit of compensation is the value of the land Compulsory aspect—Intangible loss of rights even in the absence of any tangible damage to the land or loss of profit Value of the land

Evidence from company’s expert + family’s expert Finds value in a range 1100-1200/acre, air on the side of the land owner

Loss of profit Calculation of bushels/acre On flow line part, 1st year loss all the profit from that acreage, but will be able to come back and farm

Severance—doesn't apply here Temporary and permanent damage—no permanent damage in this case Nuisance + disturbance—noise, traffic, etc. Final:

Compensation for well sites—broken down into initial and annual payment Compensation for the flow lines Costs—consulting, time, legal fees

Reviewable after 4 years Need to know for s. 154 valuation

G. Environmental and Socio-Economic Assessment-B.C. Environmental Assessment Act, Reviewable Projects Regulation

H. Interprovincial/international issues

I. Case studies and policy issuesCumulative effects of oil and gas activities—Chief Apsassin v BC Oil and Gas Commission

Address the issue of whether oil and gas activities such as drilling, exploration and production should be addressed on case by case basis or whether a broader review of “cumulative effects” should be undertake

Fracking and the Environment Protection of water table, use of water, chemicals, disposal of water, Seismic effects

Shale gas-Shale is fine grained sedimentary rock generally rich in clay, natural gas is absorbed into the clay or found within small pores and fractures

For shale gas, the natural gas has to be released from the shale by hydraulic fracturing (“fracking”) Hydraulic fracturing can be done with either vertical or horizontal wells

Drilling horizontal wells provides greater access to the naturally existing fractures within the shale To drill horizontally, the drill bit is steered to turn towards the horizontal. Multiple wells are generally

drilled (see schematic) – up to 8 wells per section. Fluid (generally water with additives) is pressurized in the well to force open (fracture) the shale The fluid contains ceramic beads or sand which keep the fractures open

The natural gas from the fractures then flows up to the well Well costs for horizontal wells are $5 to $10 million each – up to 5 times the cost of a conventional vertical well

But production rates for shale gas wells can also be up to 5 times that of conventional wells (28,000 m3/d v. 5,700 m3/d)

Environmental issues-Disposal of fracturing fluid (fracture return water or “produced water”) to surface water bodies (lakes or streams) is prohibited

Return water can be recycled, or disposed of by deep well disposal Oil and Gas Waste Regulation (s. 7) under the Environmental Management gives OGC authority to permit

discharge of “produced water” or recovered fluids to an underground formation

Oil Sands Second largest reserve of crude oil in the world after Saudi Arabia

Estimated 170 billion barrels of crude oil of which 34 billion barrels can be recovered by surface mining and 130 billion barrels by in situ extraction

More difficult and expensive to develop these resources than conventional oil in reservoirs Generally, requires oil prices higher than $60 - $70 per barrel to be profitable

The bitumen (the product containing oil in oil sands) is chemically bonded to sands It requires complex technology, as well as high levels of energy and water to extract the bitumen and then to

refine it into oil and gasoline Open–pit mining

For shallow deposits (<75 metres deep), like a mining project Strip off topsoil, forest, vegetation Large mining shovels move oil sands on to large hauling trucks + mechanical crushers break down sands The waste water and sand goes to large tailings ponds

Impacts on the environment include: Loss of vegetation, wildlife habitat Air emissions (greenhouse gases, CO2) Water extraction from Athabasca River Tailings – and potential for water contamination

Petroleum and Natural Gas Act-What it does—

Address issue of tenure Issuance of tenure right to explore and produce oil and natural gas under the primary tenure of the Drilling

Licences and Oil & Gas leases-Administered by Minister of Natural Gas Development

Includes provisions to address the rights of oil and gas tenure holders to access Crown + private lands Need access for drilling and other activities

Oil and Gas Activities Act Addresses authorizations for conducting on-the-ground activities

Includes: exploration, production, gathering and processing Environmental Protection and Management Regulation

Sets environmental protection and management requirement Administered by BC Oil and Gas Commission

Given broad authority to issue licences and permit under other “specified enactments”Surface rightsPetroleum and Natural Gas Acts. 138-140

138—Entry on unoccupied Crown land 139—Development roads 140—Entry on restricted land

Part 17—Entry on Private Land and the Surface Rights Boards. 141-180

141—Definition 142—authority to enter, occupy or use land 143—rent and compensation 144—Authority to enter, occupy or use land for geophysical exploration 145—Exclusion from application of Part Division 3—Surface Rights Board 146—Surface Rights Board 147—jurisdiction of the board Division 4—Operation of the Board 148—Application of ATA 149—powers of board 150—Form and service of application 151—Completion of application and scheduling proceeding

Hydraulic fracturingDrilling and Production Regulation (Oil and Gas Activities Act)s. 18, 21, 22, 37s. 18 Casing requirements

(1) A well permit holder must ensure that casing is designed so that it will not fail if subjected to the maximum loads and service conditions that can reasonably be anticipated during the expected service life of the well

(2) must use non-toxic drilling fluids during the drilling until, in the opinion of a qualified professional, all porous strata that (a) Are less than 600 m below ground level, and (b) non-saline groundwater that is usable for domestic or agricultural purposes isolated from the drilling fluid

(3) A well permit holder must ensure that surface casing for a well conforms to the following requirements: (4) A well permit holder, with respect to a well drilled after this regulation came into force, must ensure that the next casing string is

cemented full length if surface casing for the well is not set below the base of all porous strata that contain usable groundwater or to a minimum depth of 600 m

(5) A well permit holder must ensure that surface casing cement is not drilled out until sufficient compressive strength has been reached to allow the safe conduct of drilling operations

(6) A well permit holder must ensure that (a) All reasonable measures are taken to cement all intermediate and production casing to the surface or a minimum of 200m

above the shoe of the previous casing string, and (b) The cement is not drilled out until sufficient compressive strength has been reached to allow the safe conduct of drilling

operations (7) If there is any reason to doubt the effectiveness of casing cementation, a well permit holder must ensure that a survey is made to

evaluate the cement integrity and that remedial measures are taken if necessary (8) On detection of a casing leak or failure, a well permit holder must

(a) Notify the commission about the leak or failure without delay, and (b) Repair the leak without unreasonable delay

(9) A well permit holder must ensure that a well is configured such that

s. 21 Fracturing operations A well permit holder must not conduct a fracturing operation at a depth less than 600 m below ground level unless the operations are

permitted by the well permit

s. 21.1 Induced seismicity (1) During fracturing or disposal operations on a well, the well permit holder must immediately report to the commission any seismic

event within a 3 km radius of the drilling pad that is recorded by the well permit holder or reported to the well permit holder by any source available, if

(a) The seismic event has a magnitude of 4.0 or greater, or (b) A ground motion is felt on the surface by any individual within the 3 km radius

s. 31 Examination of cores (1) A person must ensure that core declared by an official as being representative of a type section is not broken or chipped

s. 38 Production data (1) A permit holder must keep, for not less than 72 months, complete, correct and accurate records of quantities of petroleum, natural

gas, hydrocarbon liquids or natural gas liquids that are produced, sold, purchased, acquired, stored, transported, refined, processed or marketed by the permit holder

OIL & GAS: Off-shore ResourcesA. Constitutional jurisdiction

Provincial Federal-Own the seabed (and the resources) to the low water mark

-Beyond the inland water mark baseline to the outer boundary of the territorial sea, Canada owns seabed and resources

Case LawRe Offshore Mineral Rights of B.C., [1967]

Confirms that the boundaries of British Columbia end at the low-water mark BC doesn’t have ownership or legislative jurisdiction over resources in territorial sea or continental shelf

In the territorial sea, Canada has ownership of resources and legislative jurisdiction In the continental shelf, Canada does not have ownership of the resources, BUT has the right to explore for and develop

the resources under international law, and legislative jurisdiction under the peace, order and good government powerRe Strait of Georgia, [1984]

Confirmed that the Strait of Georgia, while not “inland water”, had been included within the boundaries of British Columbia when the colony was established

Therefore, the seabed and resources in the Strait of Georgia belong to British Columbia, and British Columbia has legislative jurisdiction over them

Re Nfld. Continental Shelf, [1984] -F: Newfoundland argued that it was recognized as an international state before it joined confederation in 1949 and therefore had state rights over the territorial sea and the continental shelf

Nfld in same position as BC, as a colony, it did not have the status of a sovereign state prior to 1949 As well, international law had not recognized rights of states over the continental shelf before 1949

ENVIRONMENTAL ASSESSMENT—Process for major Oil & Gas projects**regular headings don’t apply**-While Oil and Gas Commission is responsible for issuing permits for all oil and gas activities, certain major projects must go through an environmental assessment process BEFORE applying to Oil and Gas Commission

Major Projects are subject to environmental assessment under either or both of: B.C. Environmental Assessment Act Federal Canadian Environmental Assessment Act, 2012 (CEAA)

Environmental Assessment Test (1) Primary test

Project proponents are generally required to establish, to the satisfaction of the assessment agency, and the Ministers, that the proposed project, taking into account the measures and conditions adopted to minimize or mitigate environmental effects, is not likely to cause significant adverse environmental effects

Test is expressly stated in CEAA 2012, s. 52(1) Not expressly stated in the B.C. Environmental Assessment Act but it is the test which is

generally followed by Environmental Assessment Office + Ministers (2) Justification test

Where it’s determined that the proposed project would result in a significant adverse environmental effect, a project can still be authorized if it is determined that the effects can be justified in the circumstances

Not expressly stated in BC EAA, but considered by Ministers Expressly sated in CEAA 2010, can only be invoked by Governor in Council (Fed Cabinet) s. 52(4)

-If significant adverse environmental effects + cannot be justified = project will not be authorized

Regulatory Process-If a project authorized to proceed, proponent then proceeds to the regulatory process…

Make applications for regulatory authorizations such as a facilities permit from Oil & Gas Commission, water licenses, rights over Crown land, effluent permits, etc.

BC Environmental Assessment Act s. 8-Requirement for environmental assessment certificate

S. 8 (1) Despite any other enactment, a person must not (a) Undertake or carry on any activity that is a reviewable project, or (b) Construct, operate, modify, dismantle, abandon all/part of facilities of a reviewable project, unless (c) The person first obtains an environmental assessment certificate for the project, or (d) The executive director, under s. 10 (1) (b), has determined that an environmental assessment

certificate is not required for the project (2) Despite any other enactment, if an environmental assessment certificate has been issued for a reviewable

project, a person must not (a) Undertake or carry on an activity that is authorized by the certificate, or (b) Construct, operate, modify, dismantle or abandon all or part of the project facilities that are

authorized by the certificate, except in accordance with the certificate-Reviewable project defined—

"Reviewable project" means a project that is within a category of projects prescribed under s. 5, designated by the minister under s. 6 or the executive director under s.7, and includes

(a) The facilities at the main site of the project, (b) Any off-site facilities related to project that the executive director or the minister may designate, and (c) Any activities related to the project that the executive director or the minister may designate

-Reviewable Projects Regulations Part 4 – Energy Projects Table 8 – Petroleum and Natural Gas Projects

Energy Storage Facilities Natural Gas Processing Plants Transmission Pipelines Off-shore Oil or Gas Facilities

Ex. Cabin Gas Plant-EnCana Corporation

Natural gas processing facility near Fort Nelson, designed to process at a rate of 800 MMscf/day Required environmental assessment under the B.C. Environmental Assessment Act

B.C. Environmental Assessment Office (EAO) findings – determined that the project would not result in significant adverse effects on air quality, wildlife or water

Significant benefits to government revenue (taxes) and to business and employment But – greenhouse gas emissions (CO2) may cause a significant adverse environmental effect

CO2 emissions = 2.166 Mt of CO2 per year—0.594 Mt results from fuel combustion for power, 1.572 Mt of CO2 would be vented directly to the atmosphere as a result of stripping carbon from the natural gas

BC—would not cause significant effect CO2 emissions—very large, increased provincial emissions by 3.27%

May cause a significant adverse environmental effect EAO found justification for carbon emissions based on economic benefit

Project was approved, EA Certificate issues

Federal Environmental AssessmentCanadian Environmental Assessment Act 2010-S. 6 Prohibitions - Proponent

The proponent of a designated project must not do any act or thing in connection with the carrying out of the designated project, in whole or in part, if that act or thing may cause an environmental effect, unless…

(a) The Agency makes a decision that no environmental assessment of the designated project is required and posts that decision on the Internet site; or

(b) The proponent complies with the conditions included in the decision statement that is issued -S.7 Federal Authority

A federal authority must not exercise any power or perform any duty or function conferred on it under any Act other than this Act that could permit a designated project to be carried out in whole or in part unless…

(a) The Agency makes a decision under paragraph 10(b) that no environmental assessment of the designated project is required and posts that decision on the Internet site; or

(b) The decision statement indicates that the designated project is not likely to cause significant adverse environmental effects or that the significant adverse environmental effects that it is likely to cause are justified in the circumstances

-CEAA 2012 changed the approach to federal environmental assessment in a number of ways including: The “trigger ” for environmental assessment was changed

Federal environmental assessment was only required for the projects listed on the Regulations Designating Physical Activities

Generally restricted scope of the “environmental effects” to be considered in assessment, to those aspects of the environment within Federal jurisdiction (s. 5 of CEAA 2012)

Provided that the CEAA agency or a Review Panel would be responsible for conducting federal environmental assessments rather than the particular Ministries

E.g. Department of Fisheries and Oceans Established “timelines” for the completion of Environmental Assessments by either the Agency or Review Panels Allowed for provincial environmental assessments to be “substituted” for federal assessments or treated as

“equivalent” (s. 32)

Oil and Gas Project which are subject to CEAA 2012Regulations Designating Physical Activities-Oil Sands Projects:

Regs s. 8: “The construction, operation, decommissioning and abandonment of a new oil sands mine with a bitumen production capacity of 10,000 m3/day or more.”

Regs s. 9: “The expansion of an existing oil sands mine that would result in an increase in the area of mine operations of 50% or more and a total bitumen production capacity of 10,000 m3/day or more.”

-Off-shore oil and gas activities: ss. 9-13 of the Regulations

Oil refineries, liquid natural gas facilities: Regs s.14: “The construction, operation, decommissioning and abandonment of a new

(a) Oil refinery, including a heavy oil upgrader, with an input capacity of 10,000 m3/day or more (b) Facility for the production of liquid petroleum products from coal with a production capacity of 2,000 m3/day or more; (c) Sour gas processing facility with a sulphur inlet capacity of 2,000 t/day or more; (d) Facility for the liquefaction, storage or regasification of liquefied natural gas, with a liquefied natural gas processing capacity

of 3,000 t/day or more or a liquefied natural gas storage capacity of 55,000 t or more; (e) Petroleum storage facility with a storage capacity of 500,000 m3 or more; or (f) Liquefied petroleum gas storage facility with a storage capacity of 100,000 m3 or more.”

Expansions of oil refineries, liquid natural gas facilities: S. 15 of the Regulations requires a new environmental assessment for increases of 50% or more in the capacity

of oil refineries, liquid natural gas facilities, etc. (These not covered by National Energy Board Jurisdiction)

National Energy Board (NEB) Jurisdiction CEAA s. 15(b)—provides that NEB is the “responsible authority” for conducting an environmental assessment in

relation to designated projects regulated under the National Energy Board Act (or the Canada Oil and Gas Operations Act) where the projects are specified in the Regulations Designating Physical Activities

-Regulations Designating Physical Activities, s. 40-48 address NEB oil and gas projects S. 40-43 refer to off-shore oil and gas projects which we will not be considering S.44 & 45, refer to sour gas processing facilities and petroleum storage facilities S. 46, “The construction and operation of a new pipeline, other than an offshore pipeline, with a length of 40 km or more” S. 47—address the decommissioning and abandonment of a pipeline S. 48—address pipelines in a wildlife area or migratory bird sanctuary

-Result, if there is inter-provincial pipeline which is subject to regulation by NEB and that pipeline is listed on Regulations Designating Physical Activities—NEB required to conduct an environmental assessment

Ex. Prophet River Decision (Site C) -F: Report saying project would likely have significant adverse effects on fishing, trapping, traditional uses of the land that could not be mitigated

Report goes up to Cabinet, decide that significant adverse effects are justified in the circumstances Prophet river brought case, saying there was infringement of treaty rights

In law, Cabinet had to way treaty rights-A: CEAA box, legislation requires Cabinet look at environmental effects, aboriginal rights + justification different track

Important decision of FCA which distinguishes the “justification” requirement for significant impacts under CEAA 2012 from the “justification” requirement if there is found to be an infringement of Aboriginal rights – in this case treaty rights

Case Study: Enbridge-Project Description:

1,178 km long pipeline from north of Edmonton through to a terminal in Kitimat, B.C. Final footprint on landscape would be 25 m wide right of way

-Key issues of concern respecting the Northern Gateway Project The project would be the first oil pipeline to cross Northern British Columbia The project would establish a new tanker terminal and result in an increase in tanker traffic on the West Coast Weren’t looking at greenhouse gas impact up-stream or downstream

-Panel— Joint Review Panel had 2 objectives:

(1) Under the National Energy Board Act, to determine whether the project “in the public interest” (2) Under CEAA, determine whether the project should be authorized to proceed, based on the

environmental assessment tests referred to above Taking into account the 209 conditions specified by the Panel:

The Panel determined that the project is in the public interest

The Panel determined that, except with respect to two issues, the project, taking into account the mitigation measures (including the 209 conditions), is not likely to cause significant adverse environmental effects

Concluded that the effects of the project, in combination with cumulative effects, is likely to be significant for certain populations of woodland caribou and grizzly bear already experiencing habitat disturbance, and that there is uncertainty over the effectiveness of the proposed mitigation measures

Panel recommended that these significant adverse environmental effects are justified in the circumstances The proponent committed to:

Thicker pipe, additional block valves, complimentary leak detection systems, re-routing the pipelines away from major rivers where possible, Tanker Acceptance Program and navigation safety enhancements

-Federal Government approval Large consultation process Accepted the Review Panel recommendation to approve Project was authorized to proceed and obtain further regulatory approvals

FN took to court (Gitxaala Nation v Canada)—consultation not adequate, set aside approval Trudeau declined to re-seek approval, denied because tankers on Northern shore bad idea Safer to transfer through Burrard Inlet (Burnaby Pipeline)

COALA. Constitutional jurisdiction

Provincial FederalS. 92(13)—Property + Civil Rights in the ProvinceS. 92A—Natural Resources, the legislature may exclusively make laws in relation to…

(a) exploration for non-renewable natural resources in the province;

(b) development, conservation and management of non-renewable natural resources and forestry resources in the province, including laws in relation to the rate of primary production therefrom; and

(c) development, conservation and management of sites and facilities in the province for the generation and production of electrical energy

-Territories – federal jurisdiction, but significant delegation (devolution) to territorial governments or institutions

Jurisdiction over fisheries, Constitution Act, s.91(12) plays a significant role in mining development

Statutory framework-The basic statutes applicable to coal resources are:

Coal Act – read only ss. 1-4, 9-12 and 16-18 Coal Act Regulation Mines Act – s. 10 only Health, Safety and Reclamation Code for Mines in British Columbia – s. 10 only Coalbed Gas Act

B. Ownership and rights-Under s. 109 of the Constitution Act, 1867,

Province acquired title to all lands and minerals Common law definition of minerals includes coal

-Under the Land Act, s. 50, the Province reserves ownership of coal from grants of land

C. Processes for allocating/acquiring/terminating resources-The Mineral Tenure Act exempts coal from the definition of minerals (like it exempts oil and gas)

Therefore, process of staking mineral claims does not include coal Acquisition of rights to coal is addressed under the Coal Act

Right to Explore and Develop A person must apply for a licence to explore for and develop coal (Coal Act, s. 12)

Coal Act, s. 9 – a licence grants the licensee the exclusive right to: Explore for and develop coal on the licence location, and Take up to 100,000 tonnes of coal for testing (with approval of the Chief Inspector)— known as

a “bulk sample” “Exploration and development” defined in Coal Act Regulation to include a wide range of activities, including:

Geological, geophysical and geochemical investigations Drilling Excavation of open pits Reclamation and environmental activities, etc.

Rights to Produce Coal A licence holder may apply for a lease, known as a coal lease , to explore for, develop and produce coal on the

lease location (Coal Act, s. 18) A coal lease grants the exclusive right to explore for, develop and produce coal (Coal Act, s. 16)

Right to Develop a Mine A permit under s. 10 of the Mines Act is required before constructing or operating a mine

Mines Act permit incorporates the provisions of the Mine Code respecting health and safety of miners, reclamation requirements, etc. – again, see the Mineral Resources session

Surface Rights-A coal lease does not grant any right, title or interest in the surface area of the lease location (Coal Act, s. 16)

However, holders of coal licences and coal leases have statutory rights to enter, occupy and use coal land to explore for, develop and produce coal (Coal Act, s. 2), including private land (s. 3)

Limitations— Right of entry does not extend to land occupied by buildings and land under cultivation and protected

heritage property (Coal Act, s. 2(2) On private lands, notice is required (s. 3) and compensation is payable

Protected Lands Surface rights do not apply (Coal Act, s. 2(3)) to:

Land protected under the Environment and Land Use Act, Park, Ecological reserves under the Protected Areas of British Columbia Act or the Ecological Reserve Act, Land designated under s. 93.1 of the Land Act (e.g. old growth management areas (OGMA’s), or a protected heritage property

The Minister may also restrict access if the Minister considers that a particular surface area “should be used for purposes other than mining” s. 2(4)

Compensation for Loss of Rights Coal Act, s. 4 – compensation is payable by the Crown where land is expropriated under s. 11 of the Park Act Where the Minister restricts the use of surface rights under s. 2(4)—no compensation is payable (s. 2(6)

-Compensation may also be payable where mineral rights are effectively denied by a land designation CL presumption that compensation is payable where rights are taken by the Crown Presumption can be overridden by legislation

D. Payments of rents, fees and royalties Rent payable under coal licences – set by regulation Rent payable under coal leases is specified in the lease Operators of coal mines are taxed under the Mineral Tax Act:

2% tax on “net current income”

13% tax on “net revenue”

E. Sustainability and environmental protectionSee protected lands identified under s. 2 of the Coal Act

Surface rights do not apply (Coal Act, s. 2(3)) to: Land protected under the Environment and Land Use Act, Park, Ecological reserves under the Protected Areas of British Columbia Act or the Ecological Reserve Act, Land designated under s. 93.1 of the Land Act (e.g. old growth management areas (OGMA’s), or a protected heritage property

Environmental statutes applicable: B.C. Environmental Assessment Act Canadian Environmental Assessment Act Environmental Management Act – permits required for effluent discharges, air emissions and waste disposal Fisheries Act, s. 35 – authorization required for impacts on fish habitat Reclamation and security – required under the Mines Act and the Mining Code, Part 10

Reviewable Projects Regulation Part 3 – Mine Projects Table 6 – Coal Mines New project

Capacity of ≥ 250,000 tonnes/year Modification of existing project

Threshold E, s. 8(1) Additional disturbance of 750 hectares of land, or 50% addition to land under disturbance

F. Regulatory requirements and conditions-Coal mines must meet the regulatory requirements and conditions under:

Environmental Assessment Certificates Coal leases Mines Act – s. 10 permit Mining Code – Part 10, environmental protection and reclamation Permits under the Environmental Management Act – effluent permits, air permits and waste disposal permits

Mines Act (Section 10)-Before starting work on a mine

Must have a permit s. 10(1) Must file a plan outlining protection and reclamation of land, watercourses and heritage resources s. 10(1)

10.(1) Before starting any work in, on or about a mine, the owner, agent, manager or any other person must hold a permit issued by the chief inspector and, as part of the application for the permit, there must be filed with an inspector a plan outlining the details of the proposed work and a program for the conservation of cultural heritage resources and for the protection and reclamation of the land, watercourses and cultural heritage resources affected by the mine, including the information, particulars and maps established by the regulations or the code

Post security s. 10(4) for reclamation, and for environmental protection 10.(4) The chief inspector may, as a condition of issuing a permit under subsection (3), require that the owner,

agent, manager or permittee give security in the amount and form, (a) For mine reclamation, and (b) To provide for protection of, and mitigation of damage to, watercourses and cultural heritage

resources affected by the mine Deposit security—

10.(5) If required by the chief inspector, the owner, agent, manager or permittee, in each year, must deposit security in an amount and form satisfactory to the chief inspector so that, together with the deposit under subsection (4) there will be money necessary to perform and carry out properly

(a) all the conditions of permit relating to the matters referred to in subsection (4) at the proper time, and (b) all the orders and directions of the chief inspector or an inspector respecting the fulfillment of the

conditions relating to the matters referred to in subsection (4)

Applying for revision of permit— 10.(6) The owner, agent, manager or permittee, or an inspector, may apply to the chief inspector for a revision of

the conditions or an extension of the term of a permit issued under this section Imposing additional conditions—

10.(7) For the purposes of subsection (6), if the chief inspector considers it necessary, the chief inspector may impose additional conditions or changes in the existing conditions, including changes to the security required

Failure to perform reclamation or follow conditions— 10.(8) If the owner, agent, manager or permittee fails to perform and complete the program for reclamation or

comply with the conditions of the permit… the chief inspector, after giving notice to remedy the failure, may do one or more of the following:

(a) order the owner, agent, manager or permittee to stop the mining operation (b) apply all/part of the security toward payment of cost of the work required to be performed (c) close the mine (d) cancel the permit

Environmental Protection and Reclamation S. 10(1) Mines Act requires a plan for environmental protection S. 10(4) – security for reclamation Part 10 Health, Safety and Reclamation Code sets out requirements for environmental protection + reclamation

Reclamation Standard in 10.7 Application – 10.1.2

The owner, agent or manager shall submit in writing, an application to the chief inspector for a permit under section 10(1) of the Mines Act for (1) surface or underground development or production for coal and mineral mines, or major expansions or major modifications of existing producing coal and mineral mines, or (2) underground exploration requiring excavation, large pilot projects, bulk samples, trial cargos or test shipments. (3) no work shall proceed without the chief inspector granting a permit or authorization

Reclamation – 10.7.1 It is the duty of every owner, agent, and manager to institute and during the life of the mine to carry out a program

of environmental protection and reclamation Re-vegetation – 10.7.7

On all lands to be re-vegetated, land shall be revegetated to a self-sustaining state using appropriate plant species Landforms – 10.7.9

Where practicable, land/watercourses shall be reclaimed in manner that is consistent with the adjacent landforms Watercourses – 10.7.12

Watercourses shall be reclaimed to a condition that ensures (1) drainage is restored, and (2) the level of productive capacity shall not be less than existed prior to mining, unless to the satisfaction

of the chief inspector, the impracticality of doing so Water Quality – 10.7.29

If water quality from any component of the mine results in exceedances of applicable provincial water quality … when required by the chief inspector, remediation strategies shall be implemented for as long as is necessary

Coalbed Gas-Coalbed gas is a form of gas found in coal deposits

A legal issue arose respecting the issue of whether the gas is included in coal tenures (i.e. is the holder of a coal licence or a coal lease entitled to take the coal bed gas)

Issue was resolved by the Coalbed Gas Act Definition of coalbed gas (s. 1) Coalbed gas is natural gas (s. 3) A coal tenure “does not include any coalbed gas rights” (s. 4(2))

Natural gas tenures for coalbed gas may be issued under the Petroleum and Natural Gas Act (s. 5) No compensation/damages may be claimed as result of separation of coalbed gas rights from coal tenures (s. 6)

G. Environmental

H. Interprovincial/international issues

I. Case studies and policy issues

ABORIGINAL RIGHTS & NATURAL RESOURCESConstitutional jurisdictionS. 35 CA 1982

(1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed (2) In this Act, “aboriginal peoples of Canada” includes the Indian, Inuit and Métis peoples of Canada (3) For greater certainty, in subsection (1) “treaty rights” includes rights that now exist by way of land claims agreements or

may be so acquired. (4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are

guaranteed equally to male and female persons-s. 35 limits constitutional authority of both federal and provincial government (Haida)

Provincial Federal-Constitution Act, s. 109—Property in Lands, Mines

Lands + subsurface resources belong to prov Provs tried to argue they were granted rights

absolutely Court say no, “subject to any Trusts existing in

respect thereof, and to any Interest other than that of the Province in the same”

Therefore, province has land subject to aboriginal rights

S. 92A—Exclusive jurisdiction over natural resourcesBumps up against aboriginal rights

-S. 91(24) exclusive federal jurisdiction over ‘Indians and Lands reserved for Indians’

Indian Act and Regulations (governs development of resources on reserves)

-We’re looking at development outside reserves

Delgamuukw v BC— S. 109 provision preserve aboriginal rights/title in

provincial land Also, reflected in Haida

Tsilhqot’in v BC— Overturned previous rulings about doctrine of

interjurisdictional immunity “Provincial laws of general application should apply

unless they are unreasonable, impose a hardship or deny the titleholders their preferred means of exercising their rights and such restrictions cannot be justified”

-Balance that preserves the Aboriginal right while permitting effective regulation of forests by the province

Provincial rules apply, and can impose restrictions, must be justifiable

Treaty No. 8-1 of 11 historic treaties signed by Treaty Commissioners travelling across Canada in 1800s-Key provisions:

Para 4—“WHEREAS” clauses, the Indians “do hereby cede, release, surrender and yield up to the Government of the Dominion of Canada” the lands included within the following limits . . .

“Taking-up clause”—right to pursue usual vocations (hunting, trapping and fishing) throughout the tract surrendered…subject to regulations as may from time to time by made by gov’t…and saving and excepting such tracts as may be required or taken up from time to time for settlement, mining, lumbering, trading or other purposes

Gov’t can ‘take up’ tracts for settlement Courts have said that the right to take up end at some point, if taking up results in there being no

meaningful right to carry on activities listed

R v Morris— SCC held that interjurisdictional immunity prohibited any provincial infringements of treaty rights, whether or

not such infringements could be justified under s. 35-However, Tsilhqot’in overturned position in Morris, interjurisdictional immunity not practical + shouldn’t apply to Aboriginal title

Land-Purpose of Numbered Treaties was to settle the issue of title to land as between Crown + First Nations-Difference b/w rights and title

Rights—ability to use Crown land, activity based Title—more powerful right, exclusive right to use the land

St Catherine’s Milling— SCC described aboriginal title as a “personal and usufructuary” right—right w/ respect to land use

Calder v Attorney General BC— Nisga’a people, issue was continued existence of a claim SCC, 3 found that title had not been extinguished, 3 said it was, 7th threw it out on procedural matter

Delgamuukw— Title had not been extinguished

-Set out test for finding aboriginal title, what the content of title is and how it can be restricted-Content of Aboriginal Title:

Aboriginal title encompasses the right to exclusive use and occupation of the land Uses must not be irreconcilable with the nature of the group’s attachment to the land Related to fact that it is communal + Aboriginal

Lands held pursuant to Aboriginal title can only be transferred, sold or surrendered to Crown Supposed to protect First Nations from development companies (Usually the first thing to be thrown out when negotiating modern treaties)

Aboriginal rights recognized and affirmed by s. 35(1), including Aboriginal title, are not “absolute” Aboriginal rights and title may be infringed, both by the federal and provincial governments, however,

s. 35(1) requires that those infringements satisfy the test of justification-Justification for infringement: Test has 2 parts

(1) The infringement of the Aboriginal right must be in furtherance of a legislative objective that is compelling and substantial

(2) Assessment of whether the infringement is consistent with the special fiduciary relationship between the Crown and Aboriginal peoples

-Process of consultation and accommodation required Infringements of Aboriginal title based on justification require:

Meeting the duty of consultation; Seeking reasonable accommodation; Some cases may even require the full consent of the First Nation

Note the difference with respect to Aboriginal “rights” under Haida – there is no “veto”-Claim for self-government

Court found that the claim for self-government was made in very broad terms Concluded that it could not, in the circumstances, make a determination on that issue

-Test for proof of aboriginal title Steps in the test are:

(1) The land must have been occupied prior to sovereignty; (difficult evidentiary bar) (2) If present occupation is relied on as proof of occupation pre-sovereignty, there must be a continuity

between present and pre-sovereignty occupation; (3) At sovereignty, that occupation must have been exclusive

Claimant bears onus of establishing title Sufficiency in occupation

Key issue in Tsilhqot’in BCCA—Title required exclusive and intensive occupation of specific tracts of land

Found that semi-nomadic occupation was enough to establish rights but not title SCC—rejected these limitations

Sufficient degree of occupation Content of Ab Title

“Aboriginal title confers ownership rights similar to those associated with fee simple, including: the right to decide how the land will be used; the right of enjoyment and occupancy of the land; the right to possess the land; the right to the economic benefits of the land; and the right to pro-actively use and manage the land.”

The Court confirmed the limitations of Aboriginal title including: the land cannot be alienated except to the Crown the land cannot be developed or misused in a way that would substantially deprive future generations of

benefit of the land Justification Treaty Negotiations Government policy in land use decisions

Consultation and accommodation where Title has not been establishedHaida—F: Crown renewing tree farm licence

Argued that Crown should be enjoined from making any decisions until its claim of Aboriginal title has been determined in court

Crown said it was free to make decisions w/ respect to land unless and until any claims had been resolved by Court

-A: Cannot ignore rights and claims and proceed as if they weren’t there Duty of consultation arises when Crown has knowledge of potential existence of Aboriginal rights or title

“Contemplates conduct that might adversely affect it” Content of duty to consult varies, dependent on strength of claim

Doesn’t give Aboriginal groups veto over what can be done w/ land pending final proof of claim Crown retains management of Crown lands and resources Third parties (such as resource companies) do not have a legal duty to consult

However, in virtually all circumstances, Crown decision makers will require resource companies to engage in consultation as part of the application process for licences, permits or authorizations

Province failed to meet the duty to consult-Haida consultation principles apply to most resource decisions in BC

Government subject to JR on consultation questions Does duty apply? Correctness review Did they consult enough? Reasonableness review

Consultation under the Numbered TreatiesMikisew Cree First Nation v Canada—-F: Decision of the federal government to allow seasonal road within traditional territory of the First Nation

Treaty 11, which has a “taking-up” clause similar to the clause in Treaty No. 8 Crown argued that its exercise of the taking-up clause did not require consultation

-A: provisions of s. 35(1), honour of the Crown required an appropriate level of consultation and accommodation to consider the potential effects of the Crown’s exercise of the taking-up clause on the exercise of Aboriginal rights under the treaty

Mikisew Cree consultation requirements apply in the Treaty No. 8 area of B.C. – particularly with respect to the oil and gas industry

Beckman v Little Salmon— Even in circumstances where consultation not expressly required by the treaty/ land claim agreement, some

level of consultation may still be required –Based on honour of the Crown Crown responsible for determining whether the standard of consultation has been met in any particular case

However, the determination of the decision maker is subject to judicial review: (1) Standard of correctness as to whether a duty of consultation is legally required; and (2) Reasonableness as to whether the consultation and accommodation process was satisfactory

-In this case—decision maker incorrect in saying consultation not required Decision maker made reasonable decision, did have adequate consultation even though it wasn’t formal

consultation (substance not form)

WaterWater Sustainability Act

S. 40, 41—address reservations of water for Treaty First Nations and for the Nisga’a First Nation No other specific provisions in the WSA addressing First Nations water rights Comptroller of water rights or a water manager considering the issuance of a water licence under s. 9 of

WSA required to consult with any First Nations whose rights or title might be affected by the decision Act says that title to water vests in the Crown Consultation would be required for the development of environmental flow needs under s. 15 of WSA

Not expressly written in legislation “Owner” definition—includes person who is entitled to possession of land, or has substantial interest in the land

Although s. 9 doesn't explicitly list Aboriginal nations under those who can get licences they would fit under “owners”

First Nations hold 700 active provincial water licences Either directly or jointly w/ Aboriginal Affairs

Environmental Management Act Issuance of effluent permits to discharge wastewater into the environment

Clearly requires consultation with First Nations whose rights and interests may be affected

Federal Fisheries Act-Can’t harm fish habitat w/o authorization

First Nations consultation required for issuance of an authorization to harm fish or fish habitat S. 35 of the Fisheries Act (administered by the federal Minister of Fisheries and Oceans) Not built in, but common law requires

Consultation will also be required in the development of regulations for the discharge of deleterious substances into water frequented by fish

S. 36 of the Fisheries Act (administered by the federal Minister of Environment)

Mining Resources-SCC in Delgamuukw: “On the basis of Guerin, Aboriginal title also encompass mineral rights, and lands held pursuant to Aboriginal title should be capable of exploitation in the same way, which is certainly not a traditional use for those lands”

Court relied on Blueberry River Indian Band v. Canada, and s. 6(2) of the Indian Oil and Gas Act which provide: “6(2) nothing in this Act shall be deemed to abrogate the rights of Indian people or preclude them from

negotiating for oil and gas benefits in those areas in which land claims have not been settled.”-However, there has not been a direct decision on point with respect to the ownership of the subsurface mineral rights as part of Aboriginal title

Modern treaties—some title lands expressly include underlying mineral resources, some are surface only

Implication for Mineral Tenure System-Mineral claims can be made under Mineral Tenure Act, simply by making a claim of certain areas of land through the online mineral tenure system

Accordingly, no gov’t decision is required with respect to the issuance of mineral tenure claims Means that there is no consultation with First Nations in advance of issuing the claims

-However, no significant exploration work or mining development can take place on a mineral tenure without obtaining a permit under the Mines Act

Issuance of a permit under Act triggers a requirement for consultation with First Nations

Under Quartz Mining Act, Yukon—Individual could acquire mineral rights by physically staking a claim and recording it with the Mining Recorder

Act entitles claimholder to conduct exploration activities on the land w/o further authorization from gov’t YCA, Ross River Dena Council v. Government of Yukon—

Considered importance of the open entry system to the mining industry and the Yukon economy BUT, also considered the importance of consultation in relation to Aboriginal rights

Court concluded that Yukon has a duty to consult with the First Nation “in determining whether mineral rights on Crown lands within their traditional territory, are to be made available to third parties under the provisions of the Quartz Mining Act

+ Consult and accommodate the First Nation prior allowing any mining exploration activities to take place in the traditional territory, to the extent those activities may prejudicially affect Aboriginal rights”

Royalty Sharing Agreements Gov’t adopted policy of negotiating on case-by-case basis, Revenue Sharing Agreements

Provide First Nations w/ percentage of revenue earned from royalties on mines in traditional territory E.g. Highland Valley Copper Mine Revenue Sharing Agreement

Forest Resources-Haida and Tsilhqot’in both about forest licences or tree farm licences

Haida clearly requires consultation and accommodation by gov’t before issuing forest tenures and allowing forest activities

-Forest Act has also been updated to include, under the list of tenures in s. 12, the “First Nations Woodland Licence”.

-Forest Revitalization Act enabled the government policy of taking back 20% of outstanding tenures, with some of those tenures being made available for First Nations tenure applications

Gov’t has also entered into Forest Consultation and Revenue Sharing Agreements with First Nationso Under the Forest Revitalization Plan, over 2.4 m3/y of replaceable allowable cut was obtained from

forest companies and allocated to certain First Nations Gov’t also adopted Forest Tenure Opportunity Agreements with First Nations, under which First Nations may

be awarded forest tenures without competition, as part of an interim measures agreement, treaty related measures agreement or economic measures agreement

Oil and gas resources-Mikisew Cree—

SCC determined that consultation and accommodation is required before the Crown makes decisions which may affect the treaty rights to continue to exercise traditional uses of the land within the traditional territory

-Oil and gas tenures are issued by the Minister under s. 71 PNGA Minister has adopted a consultation process that is triggered by a request for oil & gas tenure E.g. Saulteau Consultation Agreement

Oil and gas activities regulated by the Oil and Gas Commission (“OGC”) Oil and Gas Activities Act, legislation expressly recognizes the interests of First Nations s. 4(c) of the purposes which includes “to encourage the participation of First Nations and aboriginal peoples in

processes affecting them”See the provisions of the Saulteau Consultation Agreement with respect to the consultation engaged in by the OGC before approving permits for oil and gas activities

UNDRIP Art 32(2) free, prior and informed consent to resources involving territorial land Harper—interpret this clause in accordance with Canadian law

When needed, varies with strength of the claim Gov’t has power to justify

Trudeau—TRC Would ratify UNDRIP unconditionally Subsequently, Jody Raybould Wilson—implementation of Declaration was not as is, but that it was

“unworkable” in Canadian law

FISHA. Constitutional jurisdiction

Provincial Federal-Doesn’t have jurisdiction over fisheries-BUT protects fish and fish habitat under some legislation

Forest Practices and Range Act Mines Act

-CA s. 92(5)—Management and sale of public lands

-Provinces owns lakes + water—asserts ownership over fish for certain purposes

CA s. 91(12)—Sea Coast and Inland Fisheries-Case law on jurisdiction

Morton v BC, 2009 BCSC 136

-Feds can’t grant proprietary rights

Concurrent jurisdiction Federal and provincial jurisdiction respecting inland fish + fish habitat is effectively concurrent (subject to

federal paramountcy) Federal jurisdiction on the seacoast fishery is effectively exclusive

Regulations—Statutory FrameworkProvincial-Prov can enact regulations respecting protection of fish and fish habitat on provincial land

E.g. Fish Protection Act, Fisheries Act These acts limited by the exclusive jurisdiction of federal government of the “fishery”

Federal Regulations-In waters with a public right to fish (a “fishery”), Parliament has exclusive jurisdiction to regulate the “fishery” – even where the Province owns the bed of the waters

E.g. Morton case—opponent of fish farming, challenging the authority of BC fish farms which were granted provincial operating rights

Federal Fisheries Act has two main purposes: (1) Fisheries management

Licencing Open and close times Gear restrictions Catch limit

(2) Habitat protection s. 35—prohibition against harm to fish habitat

s. 36—prohibition against pollution of fish-bearing waters-Fisheries management

Fisheries Act, R.S.C. 1985 Fisheries Act, ss. 7-9 (Fishery Leases and Licences) Fishery (General) Regulations, ss. 22 and 35 (Conditions of Licences and Sale of Fish) Pacific Fishery Regulations, ss. 3, 22, 52, 53 (Vessel Licences, Fishing Boundaries and Close Times) Aboriginal Communal Fishing Licences Regulations

B. Ownership and rights-Ownership of fish

S. 91(12) confers the federal government legislative jurisdiction only Does not confer proprietary rights over fish or fisheries (Fisheries Reference (1898)

Federal government can regulate the time and manner of fishing—but cannot issue proprietary rights Therefore, Feds could not grant exclusive rights to fish because that would confer a proprietary right

Province generally owns beds of lakes and rivers + the water Under Wildlife Act s. 2, province asserts ownership of fish for certain purposes

-Ownership of land and water Private landowners on foreshore do not own bed of marine waters (property goes to high water mark) Private landowners may own the bed of non-tidal fishing waters on their land (e.g. a lake), and to the middle of a

stream which forms a boundary But they do not own the water or the fish

-Common law rights CL, right to fish belongs to owner of the water bed

Recognized as a property right (profit a prendre) In tidal waters, there is a public right to fish

C. Processes for allocating/acquiring/terminating resources3 major types of fishing licences:

(1) Commercial fishing licences, (2) Indian food fishing licences; and (3) Recreational fishing licences Fisheries Act

s. 7 – Absolute discretion of Minister to issue licences and leases for a period not exceeding 9 years

Vessel licences-These licences authorize a particular vessel to be used to fish for a species by means of specific gear – Commercial Fishing Vessel (CFV) Licence

Pacific Fishery Regulations, s. 22 List of conditions including:

(a) The species of fish and quantities thereof that are permitted to be taken or transported (b) The age, sex, stage of development or size of fish that are permitted to be taken or transported; (c) The waters in which fishing is permitted to be carried out; (d) The location from which and to which fish is permitted to be transported; (e) The vessel from which and to which fish is permitted to be transshipped; (f) The period during which fishing or transporting fish is permitted to be carried out; (g) The vessel that is permitted to be used and the persons who are permitted to operate it; (h) The type, size and quantity of fishing gear and equipment that is permitted to be used and the manner in which it is

permitted to be used S. 22(2)–(4) – the Minister may amend the conditions of a licence

Compliance with Act and Regulations required - s. 22(6) and (7)

Reducing the # of licences-Prior to 1969—no real restrictions

-1969—Feds adopted limited entry licensing plan to (1) manage fish levels and preserve and (2) protect those who fished for primary income

Tonnage about the same now Managing the catch (Pacific Fishery Regulations)

S. 52—salmon fishing boundaries S. 53—salmon closing times

Legal challenges to Minister-Cummins v Canada

F: Seeking injunction to restrain the Minister from permitting fishing of Fraser River sockeye salmon in 1996 until at least 1,600,000 sockeye reached the spawning grounds

A: Denied – s. 7 of Fisheries Act gives Minister absolute discretion Court declined to act as the regulatory authority in place of the Minister

D. Payments of rents, fees and royalties-Don’t collect royalty for fish

E. Sustainability and environmental protectionResource protection-Fisheries Act, ss. 35 and 36

s. 35 – habitat protection Changes in 2012 to prohibition against “serious harm to fish that are part of a commercial, recreational

or Aboriginal fishery”, added the “serious” Serious defined as “death of fish or any permanent alteration or destruction of fish habitat”

s. 36 – protection from “deleterious substances” “No one shall deposit deleterious substances into any water where fishing is carried on/frequented by

fish or may affect fish “ (If you want tailings permit have to apply under s. 36(2))

R. v. MacMillan Bloedel Ltd., 2002—determined that the deposit of any amount of a deleterious substance constituted an offence

Crown was not required to establish any actual harm to the environment Under s. 36, regulations have been adopted setting water quality requirements for effluent from industrial

operations such as mines and pulp mills

Fines and penalties Summary offence conviction – fines up to $100,000 and imprisonment up to 1 year, or both (s. 78) Indictable offence – fines up to $500,000 and imprisonment up to 2 years, or both (s. 78)

Offences continuing on more than one day constitute separate offences (s. 78.1) Potential for liability of directors, officers who “directed, authorized, assented to, acquiesced in or participated

in” the offence (s. 78.3) Defence of “due diligence ” is available where the person establishes that they “exercised all due diligence to

prevent the commission of the offence” (s. 78.6)

Aquaculture-Regulatory requirements

Land lease under the provincial Land Act to lease the bed of marine waters for the fish farms Authorization to harm fish habitat under s. 35 of the federal Fisheries Act, and CEAA environmental assessment After December 18, 2010 Aquaculture Licence under the federal Fisheries Act and the new Pacific Aquaculture

Regulations s. 3(1)-Morton v BC, 2009

Since 1991, aquaculture operation in BC were authorized by Aquaculture Licence issued under BC Fisheries Act, Aquaculture Regulations and Finfish Aquaculture Waste Control Regulations

A: Court found that these regulations were ultra vires the Province – since the Federal Government has exclusive jurisdiction over fisheries

Aquaculture operation is a “fishery” and therefore within federal jurisdiction

Court delayed the effect of its ruling to enable the Federal Government to make regulations to replace the provincial regulations

-New Federal Regulations Feds adopted Pacific Aquaculture Regulations under federal Fisheries Act Minister may issue licence authorizing aquaculture operations

Conditions include many factors such as location, species, fish feed, measures to minimize escapes, measures to minimize impact on fish and fish habitat, etc

F. Regulatory requirements and conditions

G. Environmental

H. Interprovincial/international issues

I. Case studies and policy issues

J. Aboriginal consultationFirst Nations Rights-CA s. 35-Fisheries Act—resulted in new type of licence

Governed by Aboriginal Communal Fishing Licences Regulations Issued to community as a whole, and then community decides what the allowable catch is

Aboriginal Communal Fishing Licences Regulations-Provides for communal licences issued to an aboriginal organization (e.g. a Band) – s. 4

Either Minister, or the aboriginal organization may designate the persons who may fish under the authority of the licence, and the vessels that may be used – ss. 4(3) and 4(4)

-Purpose, “proper management and control of the fisheries and the conservation and protection of fish, the Minister may specify conditions” - s. 5

Specifics in the licence—Species, boundaries, open and close times, methods and gear Communal licences may be for food purposes or for commercial purposes

Aboriginal Fisheries Strategy-AFS, established in 1992 in response to the Sparrow decision

Department Fisheries negotiates annual agreements with aboriginal groups to provide communal food, social and ceremonial fishing opportunities

Addresses issuance of communal commercial licences DFO offers to buy back private commercial licences to enable additional commercial licences to First Nations

Aboriginal Title -Arguing for a commercial fishery?-Distinction b/w right to fish for food vs right to commercial fishery

Right to fish for food (R v Sparrow) Confirms continuing existence of aboriginal right to fish, not extinguished by regulations since 1878 Issue was then, were the current regulations justified? Basic approach required

Government can implement general conservation measures Government must give top priority to First Nations food fishing

Significance of top priority E.g. If conservation measures limited the catch to 100 fish and all 100 required by FN for food “Then all the fish available after conservation would go to the First Nations according to the

constitutional nature of their fishing right” (Sparrow) Right to commercial fishery (R v Van der Peet)

F: Van der Peet charged with selling 10 salmon caught under the authority of an Indian food fish licence A: FN could not demonstrate the selling or bartering of fish was an integral part of the culture prior to

contact

Ahousaht v Canada, 2011—Court found that the right to commercial sale had been proven

Granting licensing requirements-R v Nikal

F: Nikal charged on a reserve w/o personal fishing licence as required by BC I: Was licence requirement and infringement of s. 35? A: Licencing requirement itself was not infringement, legitimate and necessary

However, restrictive terms on licence respecting fishing times were declared invalid

WILDLIFEConstitutional jurisdiction

Provincial Federal-Constitution Act, 1867, ss. 92(13), (15) and (16)

S. 92(13)—Property and Civil Rights S. 92 (15)—Imposition of Fines for enforcing any

Law of the Province S. 92(16)—Generally all matters of a merely local

or private nature

-General jurisdiction over federal lands, including Yukon, NWT and Nunavut (most devolved to territory jurisdiction-Other sources of jurisdiction—criminal law s. 91(27)

Migratory Birds Convention Act Constitution Act, 1867, s. 132 (treaties)

Statutory Framework: Wildlife Act – read ss. 1-20, 26, 33, 40, 41-44, 48

and 108

B. Ownership and rightsOwnership of wildlife

Wildlife Act, s. 2(1): “Ownership in all wildlife in British Columbia is vested in the government”. Wildlife Act, s. 2(3): “A person who lawfully kills wildlife and complies with all applicable provisions of this Act

acquires the right of property in that wildlife”

C. Processes for allocating/acquiring/terminating resourcesAllocation of rights

Wildlife Act s. 11 - prohibition against hunting without: Hunting licence , and Any limited area hunting authorization that is required by regulations

Limited entry hunting authorization s. 16 – Minister may limit hunting for a species of wildlife in an area of B.C. Minister may allocate authorizations by lottery or other method of random selection

Protection of habitat-Protection of habitat is achieved by various land use designations:

Designation under the Land Act, Forest and Range Practices Act and the Environment and Land Use Act

Species at RiskBC doesn't have a Species at Risk Act

Have a list that province uses when making decisions

Federal Act—jurisdiction is limited Powerful when it comes to species within federal jurisdiction (fish, marine mammals, migratory birds)

Don't have jurisdiction over moose, bears, caribou Can’t hurt species or destroy critical habitat

Prohibitions against harming species at risk , limited application of these provision on provincial land where it’s not a species in fed jurisdiction

Minister can apply laws when they think province is doing enough (doesn’t think any has been made)

CASE STUDY: Red Chris MineProponent Guide to Coordinates Authorizations for Major Mine projects

Part 1 Part 2 Part 6

o 6.1.1 – mineral tenureso 6.1.3 – Mines Act Permito 6.2.1 – waste discharge authorizations under the Environmental Management Acto 6.3 – occupation of Crown lando 6.3.2 – water licenceso 6.3.4 – cutting of Crown timber

At every stage there is the requirement of consultation with first nations Key permit we will look at is Effluent Permit

Proponent Guide— Part 1: The major provincial regulatory Ministries are:

o Ministry of Energy and Mines (MEM)o Ministry of Forests, Lands and Natural Resource Operations (FLNRO)o Ministry of Environment (MOE)

In charge of water permits Part 2: Provincial Statutes—We will review the major regulatory requirements including:

o Mines Act and Health, Safety and Reclamation Code and authorizations required Mines Act Permit – this will include a detailed closure and reclamation plan, and the posting of security to

cover the costs of reclamationo Environmental Management Act and authorizations required

Effluent Permit for discharge of mill effluent to a tailings pond and, where applicable, from the tailings pond to the environment

Air Permit Solid Waste Permit

o Water Sustainability Act and authorizations required Water Licence(s) for water withdrawals for construction or operation

o Land Act and authorizations required Licences and leases for Crown land and tenure

o Mineral Tenure Act and authorizations required Mineral claims and mining leases Access to Crown land Access to private land (only required in rare circumstances)

o Forest Act and authorizations required Licence-to-cut for removal of timber

o Forest Practices Code of British Columbia and authorizations required Special Use Permit for access road(s)

o Health Act and authorizations required Permits for construction and operation of camp and water [we will not be addressing the requirements of

the Health Act] Federal statutes

o Fisheries Act** Comes up a lot compared to other federal statutes Authorizations for harm to fish habitat Compliance of liquid effluent discharges with the water quality requirements of the Metal Mining Effluent

Regulations (MMER) (water quality that has to be met by mines if they discharge in stream used by fish) An amendment to Schedule 2 of the MMER if the project involves the deposit of tailings in any water body

frequented by fish Arises at end of process, waste rocks run off can lead to contamination in streams “Tailings”, unused rock that can leach out contaminants

Need authorization built into regulation to build talking pond near fish streamo Navigation Protection Act

Authorization to cross or effect navigation on navigable streamso Migratory Birds Convention Act, 1994

Red Chris Project Northern BC mine, in Talltan First Nation territory (2 bands) Project components

o Open pit mine with a 30,000 tonne per day mill;o Tailings impoundment area, waste rock dump, and low grade ore stockpiles;o Mine camp and associated works;o New access road, haul roads and related infrastructure;o Water supply and associated works;o Power supply from Highway 37;o Maintenance shop, explosives storage and/or manufacturing facility;o Ancillary facilities;o Any on or off-site compensation or mitigation works, as required; ando Activities included in constructing, operating, maintaining, and decommissioning the above facilities

Mineral claims Reserves—amount of ore you expect can be extracted under current technology x current or projected price of the ore History – see excerpt from 2012 Technical Report, pages 1-3 and 1-4 (Case Study Materials, doc. 11) Sample mineral claim (Case Study Materials, doc. 7) Mineral leases required for production over 1,000 tonnes/year of ore from each “cell”. (Mineral Tenure Act s. 17) Sample mineral lease (Case Study Materials, doc. 8)

o Right over mineralso Crown leasing you the land, you are indemnifying us for any actions/claims that might be made agsint the land for

things you doo Covenanting to comply with all provisions of Mineral Tenure Act, Mines Act + subsequent amendments

No legal right to challenge change in lawEnvironmental Assessment—Major mining projects generally require approval under both of:

B.C. Environmental Assessment Act (BCEAA)o S. 8 of BCEAA specifies that a person must not undertake or carry on any activity that is a “reviewable project”

unless the person first obtains an environmental assessment certificate for the project or the executive director determines that a certificate is not required

o S 8.1 specifies that, whether or not a certificate is required, a reviewable project may not proceed on treaty lands without the consent of the treaty First Nation if the final agreement requires this consent

o S. 9 of BCEAA specifies that a Minister or agency administering another enactment of the provincial government or a municipality or regional district must not issue an approval for a reviewable project unless the project has a valid environmental assessment certificate or it has been determined that a certificate is not required

o Have to be realistic about project, be broad in your options, foster good relationship with First Nation to ensure they are included, consulted and approve at all stages

Think about traditional use vs current use, if actions effect current use must make accommodationso Consultation process: (1) information about impact on wildlife, water, air (2) opportunity to consider its own

position and put that forward to the decision maker (3) If gov’t feels that consultation and accommodation has been adequate

o Reviewable Projects Regulation (BCEAA) Trigger about whether you need a certificate The Reviewable Projects Regulation under BCEAA identifies, in Part 3, the types and sizes of mine projects

that are reviewable projects Mineral mines—reviewable project if they will have a production capacity of greater than or

equal to 75,000 tonnes/year of mineral ore Mine project will also be reviewable if a modification of an existing mine project meets

“threshold E” – if the facility has a production capacity of greater than 75,000 tonnes per day and the modification results in the new disturbance of at least 750 hectares of land, or the modification is of at least 50% of the area of land previously permitted

Canadian Environmental Assessment Act, 2012 (CEAA)o S. 6 of CEAA 2012 prohibits a proponent of a “designated project” from carrying out the project, in whole or in

part, if that would cause an environmental effect referred to in s. 5(1) unless a decision statement has been issued

to authorize the project, or the Canadian Environmental Assessment Agency has made a decision that no environmental assessment of the project is required.

o S. 7 of CEAA 2012 prohibits any federal authority from exercising any power that could permit a designated project to be carried out in whole or in part unless the project has received a decision statement authorizing the project to proceed or the CEAA Agency has made a decision that no environmental assessment of the project is required

o “Designated project”, s. 2 of CEAA 2012 includes the “physical activities” designated under the Regso The Regulations Designating Physical Activities requiring environmental assessment include…

S. 16 of the Regulations makes the following new metal mines reviewable; the construction, operation, decommissioning and abandonment of a new

(a) Metal mine, other than a rare earth element mine or gold mine, with an ore production capacity of 3 000 t/day or more;

(b) Metal mill with an ore input capacity of 4 000 t/day or more; (c) Rare earth element mine or gold mine, other than a placer mine, with an ore production

capacity of 600 t/day or more S. 17 generally captures the expansion of any of the above existing mines if there is an increase in the area

of mine operations of 50% or moreo Made thresholds more like provincial; focus on big projects

Red Chris—clearly meets threshold for BC and federal Environmental AssessmentFirst Nations Consultation

Initial stage—Memorandum of Understandingo Here’s how we are going to communicate, promise to talk to First Nation before filing for permitso Establish fundingo First nation—were reserving our view but prepared to work with you

Project is located in northwest BC, near the First Nations communities of Telegraph Creek and Iskuto In traditional territory of the Iskut First Nation and the Tahltan Band Council (collectively represented as the

Tahltan Nation) Red Chris signed a Memorandum of Understanding (MOU) in January 2004 as a foundation for extensive consultation with

the First Nations throughout the environmental assessment process and, ultimately, the regulatory approval process for the Project

July 2015 (after the Project had received approval), Red Chris and the Tahltan Nation signed an Impact, Benefit and Co-Management Agreement

o Provides the basis for a working partnership for the life of the mine (approximately 25 years)Provincial Environmental Assessment Process

Provincial Environmental Assessment Office (EAO) issued its Assessment Report, July 2005 (Case Study doc. 2)o Executive summary of Report lists the major environmental issues under consideration including:o Loss of fish habitat within the tailings impoundment area (TIA)

Will require authorizations under the federal Fisheries Act Authorizations will require compensation for the loss of fish habitat Need federal approval for fisheries and explosives permit

o Water quality – a significant portion of the waste rock in the North Dump and the mine pit wall is expected to become acid generating, releasing metal contaminants

Runoff will be collected in the TIA and treated, if required Treatment will be required in perpetuity and an appropriate level of bonding by the provincial Ministry of

Energy and Mines will be required to ensure treatment Taking into account mitigation measures, including managing water releases from the TIA during

operations and the availability of various water treatment options, it was concluded that receiving water quality should be maintained within acceptable levels

o Impacts on wildlife in the immediate development area Mitigation measures, such as control of access and reclamation of disturbed areas to replace wildlife

habitat are expected to reduce impacts to acceptable levels Socio-economic effects—provincial EAO Assessment Report lists a number of socio-economic issues of concern:

o Alternative road access routes, taking into account public safety considerations, and the ability to control access and potential for impacts to wildlife and fisheries

o Visual impacts, dust and noise, potential for these impacts was assessed, determined not be significanto Effect of dust on air quality—concluded that mitigation measures to control dust, including dust from truck traffic,

would address these concernso Built in commitments to provide hiring preferences to people in the community

o Social and community impacts were a concern—High wage mining employment can have both positive and negative impacts on First Nations communities

Red Chris committed to monitoring and addressing impacts within its area of responsibility with agreements to be negotiated with the First Nations.

First Nations The EAO Assessment Report summarizes First Nation concerns:

o First Nations identified a broad range of potential adverse heritage, economic, environmental, social and health effects, as well as impacts on hunting, fishing and gathering sites

It was concluded that the impacts do not appear to interfere with the First Nations’ reasonably being able to continue to exercise their sustenance rights in the region

Monitoring of impacts and further attention to mitigation will be ongoingo Recognizing that it would be difficult to completely eliminate all of the residual impact from the Project, Red Chris

and the First Nations were in the process of negotiating an Impact, Benefit and Co-Management Agreement. Note: the Agreement was ultimately signed in July 2015 (10 years later)

Conclusion BC EAO Assessment Report concluded that, taking into account the implementation of mitigation measures committed to

by the proponent, the Project is not likely to cause significant adverse environmental, heritage, social, economic or health effects

o General test under BCEAA is whether project “likely to cause significant adverse environmental or socio-economic effects”

o There must be an assessment report and recommendations to the Minister (BCEAA, s. 17(2))o The Ministers must determine whether or not to issue an environmental assessment certificate, including any

conditions (BCEAA, s. 17(3))o Authorizations at risk if they don’t confirm to terms and conditions of BC EA

Federal Environmental Assessment Process Project underwent a separate (but coordinated) environmental assessment under CEAA

o Review of Project to focus only on matters within federal jurisdiction – fisheries and navigable waters A decision authorizing the Project to proceed was issued under CEAA in 2006 We won’t review that decision in detail – it confirmed that with appropriate mitigation and authorizations under the

Fisheries Act, the Project was not likely to cause significant adverse environmental effectsMiningWatch Challenge and SCC Decision on FEA

MiningWatch, brought judicial review proceedings in Federal Court, seeking to set aside the federal decision on the grounds that the “scoping” was not in compliance with CEAA

o Act required feds to do assessment of whole project, not just federal issues SCC agreed with MiningWatch and ruled that the “scoping” was contrary to the statute, and that the federal authorities

should have reviewed all aspects of the Projecto Have to look at project as a whole

However, Court said this was a “test case”, Red Chris had met all requirements, the decision would stando Project would not be required to go through another federal environmental assessment.o See Case Study Materials doc. 3

Moving to the “Regulatory” Phase Having received approval under both BCEAA and CEAA, the provincial and federal regulatory ministries/agencies were able

to issue regulatory permits, licences and authorizationsMines Act Permit

S. 10 of the Mines Act requires a permit to be issued “before starting any work in, on or about a mine…”o (7) Gives Chief Inspector power to change/ improve conditions to a permit (continuing supervisory role)o (4) & (5) Provisions about providing security for mine reclamation

Provide for protection and mitigation of damageo (3) If, on application, the Chief Inspector finds satisfactory they can issue permit

Review the general terms of the Mine Permito Mineral tenures are assignableo Permit is authorization, NOT assignable (if you buy have to get your own permit to apply to amend existing permit)o Monitoring Committee—sometimes create Committee to advise, co-chaired by First nation and companyo Part D-Protection of Land and Water Courses—required permittee to implement Environmental Management

System to govern all aspects of operation Review reclamation security and requirements

Water Licence

Application for an environmental assessment certificate indicates that drinking water will be obtained from fresh water wells (groundwater)

Process water for mill drawn from tailings impoundment w/ additional water from series of groundwater wells Water licence was required for diversion of water around Trail Creek and the TIA

Effluent Permit Primary concerns with respect to water runoff were runoff from the waste rock piles, which would be diverted into the TIA,

and ultimate discharge of treated water from the TIA Discharges of effluent into water require an Effluent Permit under the Waste Management Act

o A copy of the Effluent Permit for the Project is attached with the Case Study Materials (doc. 6) Red Chris—Authorizes discharge of tailing from mine into impoundment area Here is where you have 3rd party environmental audit

o 4 months after submission of annual report Very detailed permit, includes ongoing monitoring

Air Permit Project also required an Air Permit under the Environmental Management Act

o Manage and regulate emissions to the air from the mill Concerned about dust

Fisheries Act Authorization S. 35 cannot harm fish habitat without authorization, s. 36 cannot discharge deleterious substance in water frequented by

fish unless in accordance with regulations S. 35(1) –prohibits any person from carrying on any work, undertaking or activity that results in serious harm to fish that are

part of a commercial, recreational or Aboriginal fisheryo Serious harm to fish includes permanent destruction of fish habitato S. 35(2)—provides an exception if the work, undertaking or activity is carried out in accordance with the

Regulations or an authorization S. 36(3)—provides that no person shall deposit or permit the deposit of a deleterious substance into water frequented by

fish or in a place where it may enter any such watero Section 36(4)—exceptions for the deposit of deleterious substances authorized by Regulations

In mining industry, wastewater discharges subject to strict quality requirements, authorized under the MMERo Regulations also prohibit the deposit of tailings into any body of water frequented by fish, unless an amendment is

made to Schedule 2 of the Regulations to specifically authorize the deposit into a specified body of waterBC Resource Revenue Sharing Policy

2008—BC gov’t announced policy that sharing of direct revenue generated from mining (primarily through the Mining Tax Act) would be considered on a project-by-project basis with First Nations

This policy followed on general approaches to First Nation relationships outlined in the New Relationship Document, 2005 and the Transformative Change Accord, November 2005

o Simplified, Mineral Tax Act provides for payment of 2% of “net current proceeds” until certain expenses have been recovered, then a payment of 13% of the net revenue for the balance of the life of the mine

o The Mineral Tax Act contains specific exemptions with respect to the Nisga’a Nation, and “tax treatment agreements” under settled treaties

BC signed revenue sharing agreements w/ First Nations – Economic and Community Development Agreementso Examples are an agreement with the Williams Lake Indian Band and the Soda Creek Indian Band to share mineral

tax revenues collected from the Mt. Polley minePrivate companies operating major mining projects may also negotiate separate revenue sharing agreements with First Nations