AER Suspends Oil Sands Monitoring
When the AER issues project approvals under the Environmental Protection and Enhancement Act, the Water Act and the Public Lands Act, those approvals contain conditions that require operators to engage in monitoring activities. These monitoring programs are critical both in the short and long term for understanding the environmental and health impacts associated with oil sands activities. They are also important for being able to develop suitable adaptive management programs. Finally, they can also be an important way of understanding and mitigating the impacts of projects on Indigenous communities, and can be the product of Crown consultation.
Citing COVID 19, the Alberta Energy Regulator (the “AER”) has suspended a number of these important monitoring requirements for oil sands operations. The specific activities that have been suspended can be found in appendices to the decisions (Decision Nos. 20200505A, 20200501A. 20200501B, and 20200501C) but include the suspension of:
- groundwater monitoring
- surface water quality testing
- air quality and emissions monitoring
- fugitive emissions and leak detection testing
- Wildlife monitoring programs
These decisions follow Ministerial Order 17/2020 and 219/2020, which suspended reporting requirements for monitoring required under the Environmental Protection and Enhancement Act, Water Act, Public Lands Act, and the Oil Sands Conservation Act. However, under the earlier Ministerial Orders, monitoring work still had to continue – it just did not have to be reported on. As such, data could be requested, and analyzed at a later date and there would be no resulting data gaps.
The recent decisions of the AER go further in that they suspend the requirement that oil sand operators actually undertake many monitoring activities. In the decisions, the AER states that the approval holders have raised “legitimate concerns about their ability to meet monitoring requirements” while still complying with COVID-19 orders and guidelines. However, the decision does not include any detail with respect to how the activities in question pose a public health risk or are unable to continue as a result of the public health orders.
The decisions of the AER, unlike the Ministerial Orders, appear to be indefinite. The decisions state that they “will remain in effect until otherwise directed by the Alberta Energy Regulator”, but provide no guidance on when the AER will revoke the order, or what the AER will consider when deciding whether to revoke the suspension.
The AER’s decision to indefinitely suspend monitoring may be of concern to Indigenous communities for a number of reasons. Monitoring measures are often required to mitigate impacts to rights, and can be the product of detailed consultation discussions. A decision to suspend these measures, particularly without a set timeline for their return, undermines those mitigations as well as the intent of the consultation discussions. Further, as even a short gap in monitoring could result in a significant loss of data which can in turn, undermine the reliability of collected data. This can thus undermine the effectiveness of adaptive management programs, and the understanding of how projects are impacting Indigenous communities and the resource upon which they depend for the practice of their rights.
The AER’s decision to suspend monitoring has also been reported on here.
Court Updates
Courts across Canada have released the following updates this week on COVID-19 operations for civil matters (we have not included updates for family or criminal matters).
Federal
The most recent update dated May 12, 2020, provide the following updates from the Federal Court of Appeal:
- The Court has extended the Suspension Period of the running of time under the Rules, orders and direction of the Court to May 29, 2020.
- Affidavits sworn or affirmed remotely during the suspension period using methods deemed acceptable in any Superior Court of any province will be accepted for filing during the Suspension period.
More information is available here.
Alberta
Master Order #4 dated May 13, 2020, has extended the Suspension Period to June 26, 2020. On May 19, 2020, the Court of Queen’s Bench of Alberta provide the following updates:
- The court has updated the With Notice Desk Applications Process effective immediately, with parties represented by Counsel. These Applications would have been heard in Masters Chambers including Special Chambers.
- Priority will be considered for Special Chambers applications that were scheduled between March 16, 2020, and June 26, 2020.
Further deadlines and procedures for the With Notice Desk Application Process can be found here. Additional updates can be found here.
British Columbia
As of May 19, 2020, these are the following updates from the Supreme Court of British Columbia:
- As provided in COVID-19 Notice No. 20 – Resumption of Trial Management Conferences and Trials – Civil and Family Matters, Judicial Management Conferences and Trial Management Conferences can now be booked online.
- JMCs can now be booked online here.
- TMCs can now be booked online here
Ontario
Effective May 19, 2020, these are the following updates from the Superior Court of Justice:
- Urgent matters will be hear through virtual means.
- The court is planning to resume in-person hearings on and after July 6, 2020, at the earliest.
- The exception being civil jury or jury trials which are suspended until September 2020.
- If it is possible via teleconference, videoconference or other virtual means, parties are encouraged to pursue and comply with procedural timelines, produce documents, engage in discoveries, attend pre-trials, case conferences and hearings, and respond to undertakings.
- An oath and declaration are to be “in the present of” has been interpreted to not include the physical presence. Videoconference is sufficient
More information can be found here.
Saskatchewan
- As of May 15, 2020, the Court of Queen’s Bench of Saskatchewan are schedule chambers hearings to any weekday between June 8, 2020, and June 26, 2020. These hearings are fixed to 30 minutes in length. The courts process for these hearings can be found here.
Saskatchewan’s COVID-19 court updates can be found here.
Manitoba
- As of May 12, 2020, uncontested civil motions will be heard on Wednesday’s and Fridays for the period of June 29, 2020, to September 7, 2020, in Winnipeg, via teleconference.
- As of May 11, 2020, the Suspension Period is set to end on May 22, 2020.
Manitoba’s COVID-19 court updates can be found https://www.manitobacourts.mb.ca/covid-19/.
New Brunswick
The New Brunswick courts have issued a COVID-19 notice which can be found here.
Newfoundland and Labrador
The Supreme Court of Newfoundland and Labrador updates can be found here.
Information from the Court of Appeal can be found here.
Nova Scotia
COVID-19 updates from the courts of Nova Scotia can be found here.
Prince Edward Island
The most recent COVID-19 notice from the Prince Edward Island courts can be found here.
Quebec
- As of May 25, 2020, the Court of Appeal of Quebec will begin to hear appeals and motions presentable before a panel on a regular basis.
- As of May 20, 2020, deadlines for civil matters are no longer suspended.
Information regarding the courts of Quebec can be found here.
Information regarding the Court of Appeal of Quebec can be found here.
Northwest Territories
COVID-19 updates from the courts of the Northwest Territories can be found here.
Nunavut
- Regular Operations are suspensed.
- Civil and Criminal emergency applications/hearings are being considered.
For information on Registry openings and closing, please review this link.
COVID-19 updates from the Nunavut courts can be found here.
Yukon
- No Jury trials until the end of May.
- Email filings are allowed and parties are encouraged to serve documents via email when service is required.
- There will be no chambers dates or hearings until the end of June 2020.
- Unsworn or unaffirmed affidavits may be sent by email to the Registry with a brief explanation why the affidavit could not be sworn or affirmed and the affiants phone number.
- Limitations and deadlines continue to apply.
COVID-19 updates from the Yukon courts can be found here.