BLAW 628/428

University of AlbertaBLAW 628Units 7 and 8November 16, 2015

Pipelines

Provincial or federal jurisdiction?

Westcoast Energy Inc. v. Canada (National Energy Board), [1998] 1 S.C.R. 322

Undertakings are able to come under federal jurisdiction if they are a simple federal work of undertaking under s. 92(10)(a) of the Constitution Act, 1867 which reads:

92.In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subjects next hereinafter enumerated, that is to say,10.Local works and undertakings other than such are of the following classes:(a)Lines of Steam or other Ships, Railways, Canals, Telegraphs and other Works and Undertakings connecting the Province with any other or others of the Provinces, or extending beyond the limits of the Province.

In order for the operations to be considered as a single federal undertaking under s. 92(10)(a) they must be functionally integrated and subject to common management, control and direction. Common ownership is in and of itself insufficient it must be coupled with function integration and common management. To determine if the various operations are fully integrated and managed in common is dependent on the facts in any particular case. In this case the fact that Westcoasts gathering lines and processing plants are connected physically to the mainline is insufficient to conclude it is one federal undertaking. In addition, common ownership is insufficient. It is, however, clear that the business and facilities are managed in common as a single enterprise.

Note also 92(10)(c):

(c)Such Works as, although wholly situate within the Province, are before or after their Execution declared by the Parliament of Canada to be for the general Advantage of Canada or for the Advantage of two or more of the Provinces.

Great reluctance of Canada to use all of its constitutional authority.

National Energy Board Act last amended in June 23, 2015.

2.1This act binds Canada and provinces.11The Board is a Court of Record and has the powers of a superior court of record (in Alberta, Alberta Court of Queens Bench). Also, applications and proceedings to be dealt with expeditiously and fairly while meeting timelines (if there is one).22Appeal to Federal Court of Appeal on leave on a question of law or jurisdiction.29-58Construction and operation of pipelines.30No operation of a pipeline unless holds a certificate and leave has been granted to open the pipeline.31-33Plan, Profile and Book of Reference.52Certificate of Public Convenience and Necessity report to Minister. 15 month time limit. Extension power of 3 months.54Cabinet direct to Board.55.2Directly affected test.58Exemption Orders 40 km.116Exports and imports.

Pipeline Act, (Alberta)

2Application of Act, to all pipelines in Alberta, except within property of a refinery, etc., a pipeline where there is a CPCN or an exempting order (and other minor exceptions).3.1ERCB6Need a licence to construct.16Need licence to operate.

See also Pipeline Regulation, Alta Reg 91/2005.

Canadian Environmental Protection Act

last amended February 26, 2015

Note the heading of the Act is:

An Act respecting pollution prevention and the prevention of the environment and human health in order to contribute to sustainable development.

Read Preamble. s. 10.Equivalency.

Note specifically Part 2 being ss. 11-42 Public Participation

s. 1721Investigation apply for investigation by one individual.

s. 22-38Environmental protection action

s. 32 reads:

32(1)A court may stay or dismiss an environmental protection action if it is in the public interest to do so. s. 36An environmental protection action may be settled or discontinued only onapproval of the court. s. 39 & 40re Injunction and Civil Cause of ActionBreach of statutory duty which is not a tort at common law is made actionable in court.

Pollution Protection

s. 56The Minister may publish a notice in the Canada Gazette and in any other manner the Minister considers appropriate a notice requiring a person or class of persons described in the notice to prepare and implement a pollution prevention plan in respect of a substance or group of substances on the List of Toxic Substances in Schedule 1, etc.

Note the case of Canada (Attorney-General) v. Hydro Quebec (1997), 217 N.R. 241 (S.C.C.). The Supreme Court of Canada in relation to a predecessor of this legislation held that CEPA provisions allowing Canada to determine what are toxic substances and to prohibit such substances into the environment are valid under the criminal law power.

Except for inherently toxic substances, a substance is toxic if it enters or may enter into the environment in a quantity or concentration or under conditions that:

Have or may have an immediate or long-term effect on the environment or its biological diversity; constitute or may constitute a danger to the environment on which life depends; or constitutes or may constitute a danger in Canada.

The Ministers will compile a virtual elimination list. The list will specify a level of quantification for each substance on the list (64-65).

Cabinet can add a toxic substance to the List of Toxic Substances (90).

Interim Orders to put can ultimately result in adding a substance to the list of toxic substances (94).

Where there occurs or is a likelihood of a release into the environment of a substance on the List of Toxic Substances in Schedule 1 in contravention of a regulation or of an Order under the Act, a person as defined shall provide a written report to an enforcement officer, protect the environment and public safety or mitigate danger and notify the public (95).

Whistleblower (96)

Division 6International Air Pollution

TRAIL SMELTER CASE

If the Ministers believe that a substance released from a source in Canada into the air creates or may reasonably be anticipated to contribute to air pollution in another country or air pollution that violates or may violate an international agreement binding on Canada in relation to the prevention, control or correction of pollution (166).If the source is not a federal source, it will consult with the province. If the province does not take action, Canada can take action (166(2-3)). Note it is reciprocity based (166(4)). This appears to be permissible under the POGG power, natural concern doctrine.

Note: Report to enforcement officer, report to official and intervention by enforcement officer.

PART 8Environmental Matters Related to Emergencies

PART 9Government operations and Federal and Aboriginal Land

s. 207(1)This part applies to:

a) departments, boards and agencies of the Government of Canada;b) federal works and undertakings;c) aboriginal land, federal land, persons on that land and other persons insofar as their activities involve that land; andd) Crown corporations, as defined in subsection 83(1) of theFinancial Administration Act.

s. 216-224Note these sections in passing.

Environmental Protection Compliance Orders s. 234-242Note these sections in passing. Similar to EPEAs EOs.

Offences and Punishment

s. 272, 273Note high amount of fines/jail. Penalties are less for negligent as opposed to knowingly offences.

S. 272 (2)Electable by indictment or on summary conviction.

s. 274Note this section. Offence just short of criminal negligence causing death or bodily harm. Also criminal negligence of Criminal Code s. 220, 221.

s. 280Liability of directors. Note acquiescence.

s. 283Statutory Due Diligence defence.

s. 291Creative sentencing.

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