Application of Federal Legislation to Alberta’s Mineable Oil Sands

  • Author(s) / Creator(s)
  • This report examines the Government of Canada’s legislation that may impact oil sands environmental management in Alberta. It focuses on the evolution, and current state of, pertinent federal legislative Acts in the environmental, natural resource, and energy policy sectors. As detailed below, five Acts form the core of the review. A limited number of additional Acts, policies, and Canada-Alberta agreements are examined given their direct applicability to oil sands activity. In particular, the report focuses on descriptively setting out the implications and potential impacts stemming from recent legislative changes spurred by the passage of the 2011 and 2012 federal ‘omnibus’ budget implementation bills (Bills C-38 and C 45, respectively). These bills not only amended a large existing suite of legislation in the environmental, energy, and natural resources sectors, they also created new legislation with direct implications for oil sands environmental management. This report reviews and assesses these changes. The five Acts that form the core of this examination are: the Fisheries Act (FA, 1985), the Canadian Environmental Protection Act (CEPA, 1999), the Canadian Environmental Assessment Act (CEAA, 1999 and 2012), the Species at Risk Act (SARA, 2002), and the Migratory Birds Convention Act (MBCA, 1994). The study takes a ‘project life cycle approach’ to descriptively examine if, and how, federal legislation applies to oil sands environmental management in relation to (1) the pre-construction phase; (2) the operational phase; and, (3) the reclamation and post-certification phase. The focus of this study is exclusively on federal legislation. However, the constitutional division of powers in Canada’s federal system necessitates some attention to intergovernmental and multi-level governance issues. As such, the report includes a brief overview of federalism and its continued relevance for legislation in the environmental, natural resources, and energy sectors with a focus on environmental management. Passed in 2011 and 2012, Bill C-38 and Bill C-45 are recent Acts and have yet to be subjected to few, if any, descriptive or analytical scholarly examinations. The dearth of studies is even more extreme from an environmental management perspective. This study therefore uses primary document analysis of the above listed Acts as its core method. This is supplemented with reference to secondary academic sources, Government of Canada policy documents and audits, media sources, access to information requests, and recent joint panel reviews conducted as part of the environmental assessment of some existing oil sands projects. Finally, a series of informal consultations were also conducted with senior federal officials from multiple departments to seek comment and clarification on the legislation examined and for technical clarifications as required. The findings detailed in this study suggest that Bills C-38 and C-45 are watersheds in environmental and natural resources policy sector governance in Canada. The Acts fundamentally reorient the Government of Canada’s approach to environmental regulation, Canada-Alberta environmental assessment processes and represent a clear shift towards greater Ministerial discretion for regulation under several Acts amended by the two omnibus budget implementation bills. The report documents that, from a federal perspective, only a few provisions in each of the Acts are directly applicable to environmental management. The general pattern identified in amendments is a clear attempt to devolve, delegate, and harmonize federal activity in the policy sector with the Government of Alberta. From a project life cycle perspective, federal legislation was found to be most pronounced at the pre-construction phase (front-end) through project applications for permitting under federal legislation and the environmental assessment processes. However the permitting and environmental assessment regimes reviewed also included some provisions requiring monitoring, reporting, and enforcement that have implications for the operational and reclamation and post-certification phases. The current federal administration has made its explicit intention to reduce if not remove regulatory delay, duplication, and burden to expedite economic and resource development. As this report emphasizes, a review of pertinent legislation and consultations with government officials reveals a considerable degree of uncertainty remains related to environmental management. Not all new potential regulations under the amended budget implementation bills have been brought into force. In some instances, transitional provisions apply while in others regulations are expected but had not yet been publicly disclosed. As such, officials and official government documents were unclear as to their applicability to environmental management. The report concludes that recent legislative changes have increased uncertainty related to the application of federal legislation to oil sands development. This is due to the lack of precedent by which to understand its application, and because not all regulations have been brought into force. The report concludes this uncertainty is particularly acute for the reclamation and post-certification phase because of the limited reclamation and certification that has occurred to date.

  • Date created
  • Subjects / Keywords
  • Type of Item
  • DOI
  • License
    Attribution 3.0 International