Canada’s fishery laws are back — well, on the first step to being back, at least. On Tuesday morning, Minister of Fisheries and Oceans Dominic LeBlanc officially announced the introduction of an heavily amended Fisheries Act, the key piece of legislation that was gutted in 2012 by the federal Conservatives. And fishery law experts are thrilled.

“The government’s made good on its promises,” said Linda Nowlan, staff lawyer and head of the West Coast Environmental Law’s marine program. “They’ve not only restored lost protections, especially for fish habitat, but they’ve also introduced a number of modernizations that were long overdue.”

It’s also being hailed on the East Coast.

“This is like Christmas Day for fishery policy nerds,” said Brett Favaro, research scientist at the Fisheries and Marine Institute of Memorial University.

‘You can’t protect fish without protecting fish habitat’

The most significant change is restoring the “HADD prohibition” — which stands for the “harmful alteration, disruption or destruction” of fish habitat. That meant the minister had to specifically authorize any activities that would result in impacts of fish habitats.

That key provision was removed in 2012 and replaced by a prohibition against “the carrying on of a work, undertaking or activity that results in serious harm to fish that are part of or support a commercial recreational or Aboriginal fishery.”

In other words, it seriously limited the scope of the legislation.

In March 2012, a letter signed by over 600 scientists was submitted to then-prime minister Stephen Harper that argued the change would be a “most unwise action, which would jeopardize many important fish stocks and the lakes, estuaries and rivers that support them.”

The new approach was considered impossible to enforce. Nowlan said there were zero prosecutions for fish habitat damage between 2012 and 2016.

“You can’t protect fish without protecting fish habitat,” said Nikki Skuce, director of Northern Confluence, which works to protect wild salmon watersheds in northwestern B.C. “It’s really great to see habitat protections restored in the new Fisheries Act and measures in place to address cumulative effects to rivers such as the Fraser and Skeena.”

The return to the “HADD” provision removes any ambiguity in what constitutes protected fish habitat.

“If there’s fish there and they live there, it’s fish habitat,” Favaro said. “And you’re not supposed to destroy it unless you get permission to do so by the minister.”

New provisions include public registry, management agreements with Indigenous bodies

But the amended Fisheries Act doesn’t just revert the legislation back to how it was before the changes in 2012 — after all, that version hadn’t been updated since 1977 when it was introduced by Minister LeBlanc’s father.

Tuesday’s announcement included a series of significant modernizations.

Those include granting the ability to implement short-term restrictions on fisheries in the case of emergencies, like the recent right whale die-off; prohibiting the capturing of whales for keeping in captivity; requiring the minister to consider the rebuilding of fish stocks; making explicit acknowledgments and requirements to include Indigenous peoples and knowledge systems; allowing for Canada to enter into management agreements with Indigenous governing bodies; and granting the use of alternative compliance mechanisms.

There’s also a new online public registry meant to increase transparency. Nowlan explained that this will help prevent cumulative impacts to fish habitat, as it’s often small projects that build up to damage ecosystems (as opposed to one larger, more visible project). Favaro said such a registry will help keep track of the small cumulative impacts and allow people to decide if we’re achieving the goal of no net loss of fish habitat.

“Right now, we don’t even know all the activities that are happening and impacting fish habitat,” Skuce said. “That’s a strength of the new Act.”

The government also pledged $284 million over five years to improve enforcement of the new laws.

Minister still has a considerable amount of discretionary power

It’s not all perfect though.

Martin Olszynski, assistant professor in law at University of Calgary and expert in fishery law, said there’s an unfortunate use of “discretionary language,” meaning that many components of the proposed legislation are basically up to the opinion of the minister — and requiring no specific evidence.

While he noted that some issues are very complex and that flexibility can be required, the “old-school language” of ministerial discretion does leave a lot of doors open.

“There are some mandatory provisions, but definitely there is still a lot of that discretionary language,” he said. “The question is just whether or not in after spending some time on those issues, are there some objective criteria or benchmarks that could be included that would help frame that discretion?”

For example, there’s a section about implementing measures to manage the decline of fish stocks. The newly amended legislation includes the phrase “if the Minister is of the opinion that a fish stock that has declined to its limit reference point or that is below that point would be impacted.” That’s not satisfactory for some.

“I was hoping for a line that was not ‘if the minister is of the opinion that a fish stock has declined,’ but ‘if the fish stock has declined as determined by the best available evidence then there should be measures in place aimed at rebuilding the stock,’” Favaro said.

As he noted, the current wording could feasibly mean that a minister can simply “not believe” that fish stocks have declined, or take it into account and decide not to act.

Missing provisions

Observers have also found a number of omissions from the new Act.

Olszynski noted there’s no reference to an annual or biannual report on fish habitat in Canada. He says there is also a lack of clarity about how the new Fisheries Act will relate to the upcoming impact assessment legislation that will replace the current Canadian Environmental Assessment Act).

Skuce, the World Wildlife Fund Canada and Green Party leader Elizabeth May all criticized a lack of provisions on harvesting fish via fish farms.

Kris Statnyk, a Gwich’in lawyer with Mandell Pinder, tweeted: “Among the mandatory considerations BC First Nations sought that do not appear in the discretionary list in the Bill: compliance with UNDRIP, consistency with international standards and commitments, climate change, First Nation fishing and management plans.”

Bill expected to become law in 2019

It will take some time for Bill C-68 to wind its way through parliamentary committee, and it’s not expected to become law until mid-2019.

Olszynski said he’s looking forward to seeing how the committee studies the bill and which witnesses they bring in. Along the way, he said that the Department of Fisheries and Oceans could  be clearer on some of the more ambiguous provisions in the new legislation.

But on the whole, Tuesday was a huge win for advocates of stronger environmental laws.

“I hope we’ve learned from our mistakes,” Nowlan concluded. “More than 25 years ago, we had the Atlantic cod collapse. Now, we’re seeing more and more salmon populations being proposed as species at risk. Canada’s fisheries law really needs to do a better job of protecting fish and their habitat, and these amendments look like they’re going to take a big step in that direction.”

The Narwhal’s reporters are telling environment stories you won’t read about anywhere else. Stay in the loop by signing up for our free weekly dose of independent journalism.

For years, Alberta’s government has reassured the public that it has a plan to ensure the oilsands’ 1.2 trillion litres of hazardous tailings are permanently dealt with after mines shut down.

That assertion is becoming less convincing by the day.

Industry still hasn’t decided on a viable long-term storage technology to begin testing. The fund to cover tailings liabilities in case of bankruptcy is arguably extremely underfunded. And there are concerns from the likes of the Pembina Institute that the future costs for tailings treatment will be far greater than anticipated.

Martin Olszynski, assistant professor in law at University of Calgary, told DeSmog Canada such questions simply can’t be left unanswered.

“It would the height of unfairness if at the end of all this massive profit and wealth generation, Albertans were left on the hook for what will be landscape-sized disturbances that are potentially very harmful and hazardous to humans and wildlife,” he said.

Oilsands Tailings Plans Nonexistent

The history of tailings regulations is a short one in the province: there simply hasn’t been anything binding. Toxic tailings have been allowed to expand for decades without any real constraints. The last attempt by the province’s energy regulator to require companies “to minimize and eventually eliminate long-term storage of fluid tailings in the reclamation landscape” completely failed.

Every single company breached their own targets.

Directive 085, introduced by the Alberta Energy Regulator (AER) in July 2016, is intended to rectify that.

On March 17, the AER somewhat surprisingly rejected the first tailings management plan that was submitted under the new rules by oilsands giant Suncor for a series of reasons, including its uncertain timelines and reliance on the “unproven technology” of end pit lakes or water capping (the practice of sealing fine tailings under freshwater with the expectation ponds will evolve into healthy aquatic ecosystems).

“What this most recent rejection of Suncor’s proposal suggests to me is they haven’t done the work, and they’re not yet doing the work,” Olszynski says.

“And they need to do the work.”

No Definite Plan A and Definitely No Plan B For #Oilsands’ Tailings https://t.co/scnvuXz9OV #ableg #cdnpoli #YEG #YYC #oilandgas

— DeSmog Canada (@DeSmogCanada) April 21, 2017

Provincial Auditor General Warned of Risk of Oil Price Drop

In July 2015, provincial auditor general Merwan Saher issued a harsh indictment of the fund intended to ensure that Albertans won’t be on the hook for reclamation expenses when oilsands and coal mines shut down.

At the time, only $1.57 billion was held as security deposits in the Mine Financial Security Program for all of Alberta’s reclamation liabilities, worth an estimated $20.8 billion.

As of September 2016 that total is now $1.38 billion with oilsands companies responsible for $940 million of the total. The other $19 billion or so is expected to be paid by companies in the last 15 years of a project's life, with reserves effectively serving as collateral — but that's a risky approach, especially with declining oil prices.

There is a “significant risk that asset values…are overstated,” Saher said..

“If an abrupt financial and operational decline were to occur in the oilsands sector,” wrote the auditor general., “It would likely be difficult for an oilsands mine operator to provide this security even if the need for the security was identified through the program.”

Oilsands Accounting Expert Says Situation Is “Major Concern”

That very thing has happened.

Thomas Schneider, assistant accounting professor at Ryerson University who has written extensively on oilsands liabilities, said in an interview that “it’s a major concern” given the recent decline in asset values.

“The main asset securing the liabilities now as per the government and people of Alberta — and ultimately Canada I guess as I don’t know who’s going to have to pay for it if it doesn’t get cleaned up — are supposedly the assets in the ground,” he told DeSmog Canada. “That’s where it stands right now.”

The province’s $20.8 billion estimated liability is already based on shaky market grounds; the asset-to-liability approach considers “proven” (90 per cent likely to be commercially viable) and “probable” (only 50 per cent likely to be commercially viable) reserves as equally valuable, allowing companies to avoid putting in additional securities to the fund so long as assets are assessed at three times that of liabilities.

It’s a potentially troubling prospect in the era of massive write-downs of reserves by the likes of ExxonMobil and ConocoPhillips.

Schneider says at this point in time, the government is supposed to re-evaluate the asset-to-liability ratio and require companies to cover off any missing securities with letters of credit or other financial instruments.

A government spokesperson didn’t respond to a question about whether the government has taken a recent look at the ratio.

No Definite Plan A and Definitely No Plan B For Oilsands’ Tailings

Companies and industry groups are putting a lot of work into developing new technologies to deal with tailings.

Nina Lothian, senior analyst at Pembina, said in an interview with DeSmog that there are pros and cons to every tailings technology — end pit lakes, centrifuges, atmospheric fines drying, consolidated tailings — with no clear best choice. Based on the recent rejection of Suncor’s plan, it’s clear the AER is expecting more from companies.

However, there’s the obvious related problem of if those plans fail.

The AER has established an unfortunate reputation in some circles for failing to implement required monitoring and enforcement actions to ensure compliance when it comes to pipeline safety and orphaned wells.

Lothian says that end pit lakes are considered a bit of a “silver bullet” by industry.

The Canadian Oil Sands Innovation Alliance, a joint effort by 13 companies, has long planned to build a Demonstration Pit Lakes Project, made up of over a dozen test water bodies and based off of learnings from Syncrude’s Base Mine Lake. The alliance’s website still notes that “phase one of the project could move to construction with potential operation by 2017.” However, when contacted by DeSmog, a spokesperson was unable to provide any information on the status of the Demonstration Pit Lakes Project.

Olszynski says that it will likely require 15 years of monitoring data to know if any particular plan worked. He says that as a result, we wouldn’t have solid results until 2032. But the alliance hasn’t even started building the project.

“For me, the big problem here is we’re well into 2017 at this point, we’re staring down the productive life of some of these sites, and we do not yet have a proven tailings mitigation technology,” he says.

Recent Mining Disasters and Abandonments Point to Potential Dangers

As to whether or not security deposits are meant to include the treatment of tailings, Lothian says Pembina has had no success in answering that question.

Neither Alberta Environment and Parks or the AER have provided clear responses to Pembina. Lothian says that submissions from companies under the Mine Financial Security Program include related reclamation costs like land contouring and revegetation, but there’s no indication of whether funds have been set aside explicitly for tailings treatment.

“We know from all this work with the tailings management plans how many billions of dollars are associated with the treatment side of things,” she says.

In 2011, University of Alberta energy economist Andrew Leach wrote in an Alberta Oil article: “As long as companies expect to pay the full costs of reclamation, there’s no reason to expect that deferring environmental security payments will appreciably increase investment.”

In other words, the “asset-to-liability approach” might not even have notably increased investments, and instead exposed Albertans to serious costs down the road if companies go bankrupt.

That’s assuming companies expect to pay the full costs of reclamation.

There have been numerous examples in recent years that indicate mining companies can get away without fines or charges for catastrophic tailings breaches, most notably the Mount Polley mine disaster in B.C. and Peabody bankruptcy in the U.S. (the latter of which left around $2 billion in unfunded liabilities).

Provincial Regulator Has Variety of Options to Pursue, Critics Say

But regulators like the AER could take a different approach to avoid such financial disasters.

That could include providing clarity around what the Mine Financial Security Program actually covers, revoking leases for non-compliance, update calculations to acknowledge the distinction between “proven” and “probable reserves” and tap into financial instruments such as letters of credit which Olszynski describes as “bankrupt-proof.”

It would ultimately be up to the AER as an independent agency to craft new calculations for required security deposits or improve communication of the scope of the Mine Financial Security Program. But such shifts would likely require pressure from the government.

In fact, Premier Rachel Notley appeared reasonably convinced of that fact when serving as opposition environment critic, asking during Question Period in 2010: “will this government commit to eliminate the existing lakes of poisonous sludge within 20 years and to exercise all authority necessary to make sure it happens?”

However, since forming government the Alberta NDP has said little publicly about tailings management that served as contrast to previous decisions; Environment Minister Shannon Phillips responded to the 2015 report by the auditor general by stating: “We need to analyze whether the asset calculation needs to be changed. We need to update this security program and conduct that detailed risk analysis.”

Nothing appears to have been changed or updated since then.

“This is a really common strategy, where industry just kicks the can down the road over and over again until they are able to get out of cleaning up the waste themselves at the end of operations,” said Jodi McNeill, policy analyst, from the Pembina Institute, in a recent webinar.

“There’s a lot of reason for us to be very concerned.”

Image: Alberta oilsands tailings pond. Photo: Alex MacLean 

The Narwhal’s reporters are telling environment stories you won’t read about anywhere else. Stay in the loop by signing up for our free weekly dose of independent journalism.

Thirteen years ago, Canada’s Department of Fisheries and Oceans (DFO) issued almost 700 authorizations to projects that would negatively impact fish habitat, mostly in the resource extraction sector: forestry, mining, oil and gas.

By last fiscal year, that number had dropped to 74.

One would think that’s a positive sign. Perhaps the DFO approved far fewer projects, echoing its ambitious 1986 commitment to “no net loss” of fish habitat?

That wasn’t the case.

Thanks to a number of changes — mostly via the “Environmental Process Modernization Plan” of the mid-2000s and the Conservative Party’s industry-led gutting of the Fisheries Act in 2012 — most projects are now “self-assessed” by proponents.

Over the same span, the DFO’s budget was repeatedly slashed, increasingly undermining the department’s ability to monitor and enforce contraventions with “boots on the ground.”

“Harm is happening at the same levels that it always has been,” says Martin Olszynski, assistant professor in law at University of Calgary who specializes in environmental, water and natural resources law. “It’s just that fewer and fewer proponents are coming to DFO and asking for authorization. That’s the reality on the ground.”

The federal government is currently reviewing Canada’s fish habitat protection regime via a standing committee and public consultations, with recommendations expected in early 2017.

Its verdict could determine the fate of millions of trout, salmon, pike, bass and halibut, which could in turn impact the future of projects like the Mount Polley mine, the Kinder Morgan Trans Mountain pipeline and the Pacific Northwest LNG export terminal.

Fish Habitat No Longer Explicitly Protected

The specifics of fish habitat protection are very complex, involving lengthy acronyms, highly precise wording and subsections of subsections.

Such details also matter a great deal.

Maude Barlow of the Council of Canadians and Mark Mattson of the Lake Ontario Waterkeeper argued in the 2014 that “the Fisheries Act was arguably the most important piece of anti-pollution legislation in Canada,” while Linda Nowlan of the WWF described it as “Canada’s strongest environmental law.”

There’s a reason that Barlow and Mattson phrased it in the past tense. As part of the Conservative government’s overhaul of environmental assessment processes via its infamous 2012 omnibus bill, Section 35 of the Fisheries Act was completely rephrased.

No longer did it refer to the “harmful alteration, disruption or destruction of fish habitat,” known as HADD. Instead, the act prohibited “serious harm to fish that are part of a commercial, recreational or Aboriginal fishery,” with “serious harm” defined as “the death of fish or any permanent alteration to, or destruction of, fish habitat,” known as as DPAD.

The difference between HADD and DPAD may seem small. But there’s a good reason that 625 scientists signed a letter to Stephen Harper in 2012 opposing the change.

The act no longer explicitly prohibits damage to fish habitat. Instead, it focuses on protecting “fisheries” and muddies the waters with the idea of a “permanent alteration.” This meant that project proponents don’t have to be overly concerned about the DFO cracking down as the concept of “permanent harm” is so ambiguous.

“It’s a lot easier to look at a stream or river or marine area and decide the habitat has been ‘altered, disturbed or destroyed’ rather than, you know, finding the dead fish and tying that back to a particular activity like somebody bulldozing the side of the stream or something,” says Nowlan, who now works as staff counsel at West Coast Environmental Law.

DFO Gave Self-Assessment Powers to Companies

It’s not like all was well pre-2012.

Olszynski says the number of referrals (which he describes as “inquiries or authorization requests from proponents”) gradually dropped from 13,000 to fewer than 3,500 between 2003 and 2014, accompanying the fall in actual authorizations. At that time, any authorization by the DFO triggered a mandatory environmental assessment (EA).

However, the DFO didn’t have the capacity to conduct basic screening for every project, let alone a full EA as mandated by the Canadian Environment Assessment Agency.

That meant that companies were largely responsible for ensuring that fish habitat was protected with very little oversight, especially in the North.

Can Canada Save Its Fish Habitat Before It’s Too Late? https://t.co/HqMiE7wbdc #cdnpoli #FisheriesAct @WCELaw @molszyns @nikkiskuce pic.twitter.com/bHqYTgLHJD

— DeSmog Canada (@DeSmogCanada) November 14, 2016

Cumulative Effects of Thousands of ‘Minor’ Projects Unchartered

Even that meagre voluntary requirement disappeared in 2012. Today, proponents can’t notify the DFO of proposed projects even if they want to: the system has since been replaced with a “self-review” website that provides information about what projects do and don’t require authorization.

Although the new Fisheries Act wasn’t actually implemented until November 2013, the number of referrals to the DFO dropped dramatically after it was announced in 2012, which Nowlan says “sent a message out to the world that habitat wasn’t as important.”

That was compounded by the aforementioned decline in enforcement, as well as a failure to increase penalties to a level that actually deters bad behaviour.

“In 2012, a big shift was instead of having habitat biologists and protection officers on the ground, out there, able to give fines and all the rest of it, you have people either fired or shifted to different positions,” says Nikki Skuce, project director of Northern Confluence. “There was a whole bunch of offloads.”

Nowlan says there haven’t been any prosecutions for fish habitat damage in Canada since, which is “quite astonishing.”

This has also resulted in even less information available to the DFO. One of the major impacts of this is the inability to assess cumulative effects of projects, such as how a series of small individual withdrawals of water from a river or stream changes flow rate. Together, thousands of minor projects could have massive combined impacts on fish habitat.

If actually tracked, such cumulative effects could be input into databases analyzed via maps and GIS software. Olszynski says that, eventually, the government could begin to tailor regulatory regimes and offsetting requirements to what’s happening on the ground.

“Over a couple of years, hopefully, DFO would start to develop a better sense of the activity on the watershed,” he says. “That’s part of that ability then to finally answer the question that DFO has never been able to answer, which is ‘what’s happening with fish habitat in Canada?’ ”

‘You Have to Have Habitat to Protect Fish’

There are many things the Standing Committee on Fisheries and Oceans could recommend to the Minister of Fisheries and Oceans Dominic LeBlanc to correct some of these issues.

Rephrase Section 35 to refer to explicitly refer to habitat destruction. Alter the act to account for cumulative effects. Commit far more funding to the DFO for monitoring and enforcement to help create a sense that someone’s paying attention; Skuce notes it’s also important to retrain staff to know what to look for and ask the right questions.

Establish a means for proponents of “low-risk” projects to report progress to the DFO. Create a public registry of authorizations, with the long-term goal of crafting appropriate regulations that respond to real-world events. Work with Indigenous nations under the terms of the the United Nations Declaration on the Rights of Indigenous Peoples.

Many seem optimistic the government will make the most of the opportunity to restore protections to pre-2012 levels and exceed them with “modern safeguards.”

Skuce also notes the minister’s father, Roméo LeBlanc, was responsible for implementing habitat protection in the first place in 1977 and that she hopes his son can “do the same thing but even better.”

“It’s such a no-brainer,” Skuce says. “You have to protect habitat to protect fish. The sooner they can do it the better as we’re seeing declining salmon stock and projects being permitted. We’d really like to see this happen sooner rather than later.”

Image: Freshwaters Limited

The Narwhal’s reporters are telling environment stories you won’t read about anywhere else. Stay in the loop by signing up for our free weekly dose of independent journalism.

Oilsands monitoring programs aren’t quite living up to expectations.

That was the conclusion presented by a six-person expert panel in Edmonton on February 22.

The two organizations that were examined — the Joint Canada-Alberta Plan for Oil Sands Monitoring (JOSM) and Alberta Environmental Monitoring, Evaluation and Reporting Agency (AEMERA) — have improved in performance in recent years, according to the review.

But the organizations have largely failed at actually conducting analysis of the data collected about the four component areas: air, water, wildlife contaminants and toxicology, and biodiversity and land disturbance.

In addition, both JOSM and AEMERA have lacked clear mandates, a fact that has “severely hampered” success.

“The work of the Panel was made more challenging by the absence of an overarching document that clearly articulates the policy and scientific goals of the Governments of Canada and Alberta for oil sands monitoring,” according to the report, which was commissioned by AEMERA and Environment and Climate Change Canada.

AEMERA Struggling to Fulfill Mandate

Such revelations didn’t come as much a shocker for Martin Olszynski, assistant professor in law at University of Calgary who specializes in environmental and natural resources law.

“As someone who’s tried to use the data that’s been generated, I wasn’t surprised at all,” he says. “It’s very hard for anyone without training in all of the metrics. It’s very technical data that someone like myself — and I’m not a total novice when it comes to this — couldn’t make heads or tails of.”

AEMERA was established after Bill 31 — also known as the Protecting Alberta’s Environment Act — received royal assent in December 2013. Prior to then the JOSM handled the monitoring, evaluation and reporting activities.

But the hand-off of responsibilities to AEMERA hasn’t been straight-forward. The new organization, which receives most funding from industry, works with a limited budget of $50 million and has gone through three chiefs executives since its inception.

The province’s auditor general also shamed the organization in his October 2014 report for a lack of clarity and failure to include key details in reporting.

Programs Receive ‘B’ Grade from Panel

To be sure, the panel’s review praised data collection by the two organizations. Clarkson University’s Philip Hopke, who served as chair of the panel, gave the programs a ‘B’ grade at the press conference. There have been increases in sampling sites, frequency of sampling and geographical coverage.

Olszynski says it’s “mostly a good news story.”

But the data collected between 2012 and 2015 still hasn’t been processed or published in a way that can be understood by the public. It’s a problem that was predicted back in a June 2011 report by the Alberta Environmental Monitoring Panel, which emphasized that “monitoring by itself is not sufficient.”

“The value that the environmental monitoring system brings to stakeholders will only be fully realized with appropriate information dissemination activities,” noted the authors of the report.

Results Could be Suppressed

It’s an issue that Olszynski has observed for a long while. He says the translation of information to something that laypeople can understand is imperative to the success of the program.

An associated problem is that AEMERA isn’t yet a “household name,” meaning reporting that carried politically negative news (say, as a hypothetical, increased air pollution in a certain site) could be more easily muffled.

“Unfortunately, because they haven’t done that work to transmit that information that average Albertans and other stakeholders can use, my fear is that if tomorrow Alberta said ‘yeah, we understand this but we’re just not prepared to go ahead with this,’ I don’t think there would be much of a fuss that they would kick up,” he says.

Funding Woes in Tough Economic Times

Fred Wrona, vice-president and chief scientist at AEMERA, noted earlier this month that the organization is preparing to present findings this fall. In addition, AEMERA will be increasing staff numbers from 85 to 130 in the coming years.

The panel noted the utility of the information portal could be boosted with additional funding. However, Olszynski’s skeptical of the likelihood of “significant investments and resources” being directed towards the organization given current economic circumstances.

“I’m not sure it’s going to happen in the next couple of years,” he says. “That’s maybe forgivable.”

“But at least stay the course, don’t abandon the thing entirely,” he advises. “Keep it working as it is. It would be nice to have that comprehensive analysis now, but it’s not the end of the world if we don’t, and other people can maybe step up. But don’t stop collecting that data or doing the actual work of monitoring.”

The Narwhal’s reporters are telling environment stories you won’t read about anywhere else. Stay in the loop by signing up for our free weekly dose of independent journalism.

"Transparent,” “credible, “world-class” — those are just a few of the words that have been deployed to detail the aspirations of the one-year-old organization tasked with monitoring the air, water, land and wildlife in Alberta.

But there are a lot of questions about whether the Alberta Environmental Monitoring, Evaluation and Reporting Agency (AEMERA), funded primarily by industry, has lived up to its goal to track the condition of the province’s environment.*

Unlike the Alberta Energy Regulator, which the new NDP government is considering splitting into two agencies to separate its conflicting responsibilities to both promote and policy energy development, AEMERA hasn’t spent much time in the public spotlight — yet.

Last October, Alberta’s auditor general slammed the agency for releasing its 2012-2013 annual report in June 2014, well after when it should have been released. The auditor general also said the report “lacked clarity and key information and contained inaccuracies.”

Many of the agency’s projects were missing several details and the auditor general cautioned such omissions “may jeopardize AEMERA’s ability to monitor the cumulative effects of oil sands development.”

And that’s a pretty big problem. Because if Canada is to feasibly establish a strong environmental record, it’s going to need stringent monitoring in Alberta, especially in the Lower Athabasca region where the bulk of the province’s energy industry operates.

The Birth of A Really Long Acronym: AEMERA

AEMERA was dreamt up in 2011 as a means to coalesce the dozens of monitoring organizations working in the province under one banner, firewalling the result from government and industry to avoid conflicts of interest.

Martin Olszynski, an assistant professor in law at University of Calgary who specializes in environmental law, notes that at the time of the agency’s inception, international pressure was limiting market access for oil.

“When someone went to check on the monitoring system, it turned out it was a mess,” Olsznynski says. “We weren’t getting the data that we needed.”

AEMERA — with the Joint Canada-Alberta Plan for Oil Sands Monitoring serving as the transition agency for the three years prior to its official birth — was crafted to solve that problem.

Yet Bill 31, the piece of legislation that conjured up the arms-length agency in late 2013, faced considerable criticism from the get-go. Opposition parties pleaded for more than a dozen amendments.

Many of the proposed tweaks would have addressed the tight relationship between government and the monitoring agency. Amongst other things, the legislation suggested the environment minister would appoint the board and choose when data was released to the public.

Shaun Fluker, an associate professor of law at the University of Calgary, wrote in a 2014 post that the latter provision “arguably undermines the whole structure and suggests that politics can and will override science and transparency on environmental monitoring and reporting.”

All the proposed amendments were shot down. Lorne Taylor, former environment minister under Ralph Klein and renowned anti-Kyoto Accord activist, was appointed as chair of the board. Little has changed since.

Unlike other agencies, AEMERA doesn’t mandate quotas for groups or interests on the board. As a result, Bigstone Cree elder Mike Beaver is the sole indigenous representative on the agency’s seven-member board.

Traditional Ecological Knowledge, a method of integrating indigenous worldviews into policymaking, was listed as a priority in AEMERA’s founding document — yet the auditor generals’ report noted that just three of 38 of AEMERA’s projects surveyed involved Traditional Ecological Knowledge.

Val Mellesmoen, spokesperson for AEMERA, says the organization is working hard to foster strong relationships with indigenous people. In mid-June, the organization appointed a Traditional Ecological Knowledge panel to focus on such issues.

Insufficient Funding for Mobile Air Monitoring Van

Then there’s the overarching issue of funding. Exactly $50 million was decided upon as the max that industry would contribute per year, a number that features a “conspicuously round nature,” Olszynski says.

In late March, news broke that the Wood Buffalo Environmental Association — historically the recipient of the largest amount of money for monitoring — couldn’t afford the $500,000 price tag for a new mobile air monitoring testing van on account of a lack of funding.

Andrew Read, policy analyst at the Pembina Institute, says there’s no public information available as to why $50 million was chosen as the funding cap; he has submitted multiple requests to the federal government (which coordinated the interim monitoring framework prior to AEMERA’s takeover), but hasn’t received any clarification.

Mellesmoen, the agency’s spokesperson, says it was a “gentlemen’s agreement” with the number determined by “an initial estimate that was based on industry providing an overview of what they felt they were currently spending as individual companies.”

Mellesmoen — who previously served as Taylor’s spokesperson when he was an MLA and minister — says there are questions within the agency about the reasoning for the cap.

“Even that funding model needs to be maybe looked at in the long run,” she says.

New NDP Government Could Amend Bill 31

Olszynski says the newly elected NDP could amend Bill 31 to deal with such issues. Prior to being elected as premier, Rachel Notley was an outspoken critic of the monitoring agency, at one point asserting the organization was “nowhere near ready to assume responsibility for the [Lower Athabasca] region.”

The NDP’s platform also pledged to “strengthen environmental standards, inspection, monitoring and enforcement to protect Alberta’s water, land and air.”

This week’s decision to revisit the Alberta Energy Regulator’s mandate represents that focus. The press secretary for Minister of Environment Shannon Phillips didn’t respond to multiple requests for an interview on the subject.

International Experts to Evaluate Oilsands Monitoring

An international panel composed of six scientists will evaluate the performance of the new monitoring system. It plans to “evaluate the extent to which the implementation of the Joint Canada-Alberta Oil Sands Monitoring (JOSM) has improved the scientific integrity of environmental monitoring in the oil sands.”

The panel will deliver its report this fall, which will “help determine the next steps on the oilsands monitoring design and implementation.”

Olszynski emphasizes the uniqueness of AEMERA

“It’s an experiment, an innovative one, an important one,” he says.

Yet there’s much more to be done: stable funding must be solidified, the line between cabinet and organization must be clarified and the data must be analyzed and reported on in a way that regular Albertans can understand. AEMERA also has to expand its monitoring province-wide to fulfill its mandate.

“AEMERA needs to step out and demonstrate that they’re acting in the public interest,” Read says. “We want to see a demonstration of AEMERA actively taking and delivering that unbiased information to the government and providing a perspective on the current state of the environment.”

* Clarification Notice: This article originally stated that AEMERA is funded 100 per cent by industry. While AEMERA gets the bulk of its funding from industry, the agency also receives government funding for general operations and monitoring, evaluation and reporting activities in other areas of the province

Image: Kris Krug via Flickr

The Narwhal’s reporters are telling environment stories you won’t read about anywhere else. Stay in the loop by signing up for our free weekly dose of independent journalism.

Part 1 of DeSmog Canada’s exclusive sit-down interview with Harry Swain, the man who chaired the panel tasked with reviewing BC Hydro’s Site C dam, sparked a firestorm of activity on Tuesday.

Energy Minister Bill Bennett responded to Swain’s critique in the Globe and Mail, the B.C. NDP issued a statement on Swain’s comments and an environmental law expert called the statements “unprecedented.”

Martin Olszynski, an assistant professor in the Faculty of Law at the University of Calgary, said Swain’s comments are extremely rare.

“To the best of my knowledge, this is the first time that a panel member has spoken about a previous report in this manner,” Olszynski, an expert in environmental assessment, said. “To my knowledge, it’s unprecedented.”

The concerns Swain raises are not unusual though, Olszynski pointed out.

“The course of actions taken by the B.C. and federal governments in this case are not atypical,” he said. “They very often will ignore, or pay only lip service to, the recommendations of their expert panels. If you talked to other people who have served on similar panels — if they were willing to talk — they might express similar frustration.”

Geothermal Recommendations for B.C. Ignored …. For 32 Years

Certainly, the issue of recommendations being ignored is a live one in the case of the 1,100-megawatt Site C dam proposed for the Peace River. The dam is facing six legal challenges, including one that alleges that Cabinet erred in dismissing key portions of the joint review panel’s findings on the project.

[view:in_this_series=block_1]

But beyond that, one of the key issues the panel raised in its report was the B.C. government’s failure to follow a recommendation to investigate alternatives to the dam, particularly geothermal — a recommendation made 32 years ago by the B.C. Utilities Commission when it first turned down the Site C proposal.

“The province or the province and its wholly owned subsidiary BC Hydro should have taken to heart the admonitions of the utilities commission 32 years ago and done some of the basic work that would allow an industry to develop,” Swain told DeSmog Canada. “But they didn’t do it, so there we are.”

In speaking notes obtained by DeSmog Canada, the province prepares to deflect questions about why it hasn’t pursued geothermal.

“While geothermal energy has a role to play in British Columbia, it has been slow to develop and has not developed the track record to reliably meet today’s growing demand,” read the notes prepared for the government’s Site C announcement in December.

Asked what he makes of that statement, Swain responded: “Dereliction of duty.”

The B.C. government has the principal responsibility for lands and resources under the constitution, Swain said.

“And in that sense, the province owes — in my view — an obligation to the citizens of B.C. to do a lot of basic mapping and exploration,” he said. “I don’t think there’s a major resource industry in this country that didn’t start without governments doing some of the basic work.”

Canada is the only country around the Pacific Ring of Fire that does not produce geothermal power at a commercial scale.

Vast Amount of Data Available From Gas Drillers on Geothermal Potential

In the past three decades, technological advances have led to the discovery of even more geothermal potential in B.C. — including in the Peace Country, where the Site C dam is proposed.

“Up in the Peace, in the very strata that are being drilled for natural gas, there’s a lot of hot water,” Swain said. “Moreover, since the well logs of exploration and drilling companies are supposed to be deposited with the provincial government, there is a vast amount of information available. It was surprising to me that no attempt had been made to exploit that information.”

The challenge is that currently BC Hydro, the province’s crown energy corporation, is forbidden by law to involve itself in projects beyond big hydro and large transmission projects.

“All of the other production stuff is to come from the holy private sector,” Swain said.

To prevent future governments and panels from being “seriously uninformed” again, the panel recommended that, regardless of the decision taken on Site C, BC Hydro establish a research and development budget for the characterization of geographically diverse renewable resources.

“It’s probably fair to say that institutionally Hydro really, really wants to build this,” Swain said. “And that’s perfectly understandable. If you ask the Ford company, ‘what would you like to do?’ they’ll say ‘build cars.’ If you ask Boeing ‘what’s the solution to our transportation problems?’ they’ll say ‘airplanes.’ ”

The Canadian Geothermal Energy Association has argued geothermal can meet B.C.’s future energy needs at a lower cost than Site C with fewer environmental impacts. The association has called for a one-year moratorium on Site C to allow time for further due diligence on geothermal.

The LNG Wild Card: Inconsistency in Province’s Statements

One of the B.C. government’s go-to talking points on Site C has been that the dam is needed to power the liquefied natural gas (LNG) industry. In a Jan. 30th letter to the Peace River Regional District, Energy Minister Bill Bennett wrote that liquefied natural gas facilities would drive more electricity demand than the Joint Review Panel accounted for in its report (due to an addition error).

Swain says that, although there was an addition error in the report, it doesn’t change the conclusion: demand for the dam wasn’t proven.

“Given skepticism about LNG and about demand elasticity, I see no reason to modify the conclusion,” Swain said. “Frankly, I think their low-demand figure was probably overstated. So far there is no evidence that even their low usage scenario is likely to take place.”

Beyond that, if the province’s original LNG dreams had come to pass as quickly as they’d stated and if the plants had relied on grid electricity (two big ifs), that power would have been needed well ahead of Site C’s in-service date of 2024. A single LNG plant can require as much as 700 megawatts of electricity to run the giant compressors required to cool gas to 163 degrees below zero; at least 10 plants are proposed for B.C.’s coast, but it’s unclear whether any will come to fruition.

“If the initial scenario took place, the power demand would arise a long time before Site C could be built,” Swain said. “There really wasn’t a compatibility between the two statements of the province if you think of one statement about the development of the LNG industry and the second about the timeframe in which Site C was to be built. By their own story, they had an inconsistency.”

Site C Dam ‘No Ordinary Project’

About 20 B.C. local governments have asked the government to send Site C to the B.C. Utilities Commission to further investigate demand and costs — a recommendation made in the panel’s report and echoed by Swain in Part 1 of his interview with DeSmog Canada.

With a price tag of $8.8 billion, Site C would constitute the largest expenditure of public money in B.C. history.

“Site C is not an ordinary project,” the panel wrote in its report.

Swain said British Columbians should pay attention because “it’s going to effect them in the pocket book,” “destroy valuable bits of landscape” and “affect the constitutionally protected rights of First Nations.”

He suggested British Columbians consider the dam in light of the alternatives.

“Have we really pushed conservation and efficiency as far as they can go? And the answer is no,” he said. “What other kinds of generation or energy production are available and what are their costs and benefits?”

Swain called B.C.’s refusal to consider its entitlement under the Columbia River Treaty “inexplicable” and noted the verdict is still out on how British Columbians will react to electricity prices going up 30 per cent in the next three years (demand could decrease, for example).

Ultimately, the way forward needs to be one that considers all the options, not just large hydro dams.

“The province has defined the role of Hydro as being very limited,” Swain said. “If this were not the BC Hydro company, but simply … the ‘energy company’ whose job it was to make sure that demand was satisfied at reasonable prices regardless of source, regardless of who got to build and own, regardless of those kinds of extraneous considerations, we might have a more balanced view.”

The Narwhal’s reporters are telling environment stories you won’t read about anywhere else. Stay in the loop by signing up for our free weekly dose of independent journalism.