Unloading in the evening

Unloading in the evening

Tuesday, August 31, 2010

Round table raises questions about effectiveness of public participation processes in Alberta energy matters

Nickie Vlavianos is an Assistant Professor with the Faculty of Law at the University of Calgary.  She has recently published an article for the Canadian Institute of Resources Law's publication, "Resources", titled "The Issues and Challenges with Public Participation in Energy and Natural Resources Development in Alberta".  Professor Vlavianos outlines the themes that emerged from a round table discussion held by the Institute in April, 2010.  Among the primary issues and challenges identified at the round table were:
  • the need for more effective public participation at policy and planning stages;
  • the need for public participation at the Crown mineral and surface rights disposition stages;
  • the need to address several aspects of existing participation processes including the question of whether stakeholder consultation by industry really amounts to public participation in energy and resources development decision making
Read the full article at: Nickie Vlavianos re public participation.

Monday, August 30, 2010

MNR Policy for Protecting Agricultural Property from Elk

Policy Proposal Notice: EBR Registry Number: 011-0745

Title: Policy for Protecting Agricultural Property from Elk Ministry:
Ministry of Natural Resources
Date Proposal loaded to the Registry: August 30, 2010

Description of Policy:

Between 1998 and 2001 the Ministry of Natural Resources (MNR), in collaboration with many partners and volunteers, released 443 elk from Elk Island National Park in Alberta at four locations (Bancroft, Blind River, south of Sudbury and south of Kenora) across the province as part of an elk restoration program. Since 1998, monitoring has revealed that restored elk herds have grown, dispersed and in some areas struggled with adapting to Ontario’s diverse landscape patterns and uses.

In 2009, following public and stakeholder consultation, the Ministry released Ontario’s Cervid Ecological Framework which provides overarching provincial guidance for the sustainable management of all Ontario’s cervid species (moose, deer, caribou and elk). Consistent with the Cervid Ecological Framework, and in response to the need for more species specific guidance for the management of Ontario’s elk populations, the Ministry released an Elk Management Plan in 2010, following public and stakeholder consultations. The plan includes a number of objectives and strategic actions to guide management decisions that support sustainable and healthy elk populations, including objectives and strategies aimed at specifically addressing human-elk conflicts.

Ontario’s overall policy approach related to addressing conflict with wildlife, as a public resource, is to provide landowners with the tools and information to prevent and mitigate conflict and associated damage. The Strategy for Preventing and Managing Human-Wildlife Conflicts in Ontario provides overarching policy direction to address human-wildlife conflict in Ontario.

Consistent with this broad provincial approach, the Elk Management Plan refers to the need for tools to help address the impact of human-elk conflicts. In response to this need, the government amended the Fish and Wildlife Conservation Act (FWCA) to add American elk to the list of species that can be harassed, captured or killed in accordance with authorization from the Ministry of Natural Resources (s. 31(3)). The proposed Policy for Protecting Agricultural Property from Elk provides direction for the issuance of authorizations to harass or kill elk that are causing or are about to cause damage to agricultural property. The proposal outlines the process and prerequisites to obtaining an authorization and outlines the conditions of their use.

Purpose of Policy:

To consult on a proposed Policy for Protecting Agricultural Property from Elk, as part of a provincial management program intended to support self-sustaining elk populations for the continuous provision of ecological, cultural, economic and social benefits to the people of Ontario.

Other Information:

The following weblinks provide supporting/ additional information about this notice:

Proposed Policy for Protecting Agricultural Property from Elk

Proposed Policy for Protecting Agricultural Property from Elk – Executive Summary

Elk Management in Ontario website

The ministry is currently consulting on several other components of elk management through the Environmental Registry to support a comprehensive elk management program in Ontario, including:

Proposed Elk Population Objective Setting Guidelines (Registry Number 011-0743)

Proposed Elk Harvest Allocation System (Registry Number 011-0741)

Proposed Elk Harvest Management Guidelines (Registry Number 011-0744)

Proposed Regulations to establish an Elk Hunt (Registry Number 011-0746)

Proposed Elk Population Objective for the Bancroft-North Hastings Area Herd (Registry Number 011-0742)

More information on these proposals can be found by searching the appropriate Registry Number at www.ontario.ca/environmentalregistry

Public Consultation:

This proposal has been posted for a 45 day public review and comment period starting August 30, 2010. If you have any questions, or would like to submit your comments, please do so by October 14, 2010 to the individual listed under "Contact". Additionally, you may submit your comments on-line.

All comments received prior to October 14, 2010 will be considered as part of the decision-making process by the Ministry of Natural Resources if they are submitted in writing or electronically using the form provided in this notice and reference EBR Registry number 011-0745.

Please Note: All comments and submissions received will become part of the public record. You will not receive a formal response to your comment, however, relevant comments received as part of the public participation process for this proposal will be considered by the decision maker for this proposal.

Other Public Consultation Opportunities:

Preliminary consultation has occurred with local farmers and landowners in the Bancroft area (i.e., the area where the majority of human-elk conflicts are occurring), as well as key provincial stakeholders. Select focused stakeholder meetings may be arranged to consult further with interested parties.

Saturday, August 28, 2010

B.C. Court rules Ghost Town Resort must allow mining exploration

Kitsault, British Columbia, is located near the head of Alice Arm in the northwest corner of British Columbia, about 140 kilometres north of Prince Rupert. It is the site of a former molybdenum mine, known as the Kitsault Mine. Open pit mining began at this site in 1968. Mining operations were suspended in August 1972 due to low molybdenum prices, resumed in April 1981 and were suspended again in November 1982 due to low molybdenum prices.

In 1980, a townsite (“Kitsault Townsite”) was constructed to provide accommodation for those who worked at the Kitsault Mine. The Kitsault Townsite was comprised of approximately 100 houses, seven apartment buildings, a hospital, a school, stores, restaurants, a theatre, a library, a pub, recreation centres and other buildings and utilities to support a population of over 1,200 people.

When the Kitsault Mine shut down in 1982, all of the residents of the town left, leaving it a modern-day ghost town. However, unlike other ghost towns in British Columbia, Kitsault was not left to deteriorate and fall to ruin. The owners of the Kitsault Mine continued to provide heat for the buildings to prevent mould and mildew setting in and hired full-time caretakers to maintain and protect the buildings and maintain the lawns, grounds and roadways.

In 2005, the defendant, Kitsault Resort Ltd. (“Kitsault Resort”) purchased Kitsault Townsite from Aluminerie Lauralco, Inc. (“ALI”), the company that then owned both the mineral properties comprising the former Kitsault Mine and the lands and improvements comprising Kitsault Townsite. At the time it sold Kitsault Townsite, ALI was engaged in the remediation, reclamation and decommissioning of the Kitsault Mine as required by law.

Prior to conveying Kitsault Townsite to Kitsault Resort, and in accordance with the agreement of purchase and sale, ALI granted to itself and to Climax Canada Ltd. (“Climax”) a statutory right of way (the “Right of Way”) across the Kitsault Townsite.  In 2008, ALI sold its mineral tenures and other lands located at Kitsault, including the Right of Way, (collectively referred to as the “Kitsault Property) to Avanti Kitsault Mine Ltd. (“AKM”), a subsidiary of Avanti Mining Inc. (“Avanti”).  Avanti and AKM are currently carrying out exploration activities to support an application to reactivate the Kitsault Mine. AKM, as the registered owner of the Right of Way, claims the right to use the Right of Way, now and in the future for its exploration activities and for its mining activities in the event it re-opens the Kitsault Mine. Kitsault Resort has refused to permit Avanti to cross over Kitsault Resort pursuant to the Right of Way.

AKM and Kitsault Resort went to court to determine the scope and validity of the Right-of-way.  Kitsault Resort argued that, even if the Right-of-way remained in place, it was limited to remediation and decommissioning activities.  The Resort argued that mining activities were not permitted.  The court found that there were three issues to be resolved in the proceeding:
(a) On the proper construction of the Right of Way, are the rights granted by it limited to activities for the remediation, reclamation and decommissioning activities required at the Kitsault Mine only, or do they include the right to use the Right of Way for the purpose of exploration and mining activities? A further matter for consideration under this issue is whether the rights granted by the Right of Way are limited to activities carried out at the actual Kitsault Mine site, or whether they apply to any lands, improvements or works intended to be used in conjunction with the mine site, including the surrounding mineral deposits?

(b) If the rights are not limited to remediation, reclamation and decommissioning, should the Right of Way be rectified to so limit its scope?

(c) Is the defendant entitled to cancellation or modification of the Right of Way under s. 35 of the Property Law Act?
The court found in favour of AKM on all issues and made a declaration that AKM is entited to use the Right-of-way for exploration activities.  The court also found that AKM was entitled to an injunction preventing the Resort from obstructing use of the Right-of-way to carry out mining activities.

Read the decision at: Avanti Mining Inc. v. Kitsault Resort Ltd.

Thursday, August 26, 2010

OMB agrees to reduce minimum setbacks for residence - finds residence an "agricultural use" under Official Plan

Greyda Plains Poultry Ltd. appealed the March 2, 2010 decision of the Committee of Adjustment of the Township of Enniskillen refusing its application for two minor variances. The first minor variance was from the top-of-bank setback provisions and the second was from the minimum distance separation provisions of the Township of Enniskillen Zoning By-law 17 of 2009.  Greyda Plains Poultry Ltd. (“Greyda”) has proposed to develop approximately 38 ha. (94 acres) as a working farm with a farm house and storage barn. The subject lands are located at the southeast corner of the intersection of Oil Heritage Road and LaSalle Line, in the Township of Enniskillen. Greyda currently farms approximately 80 ha. in the vicinity.

Section 5.2(a) of Township of Enniskillen Zoning By-law 17 of 2009 (“By-law”) provides for a 15-metre minimum setback from the top-of-bank of a watercourse.  Greyda proposes a 6-metre setback.  Section 3.17.1 of the By-law requires a minimum distance separation of 627 metres between any manure storage facility and any residence. Greyda proposes a separation distance of 420 metres. Section 3.17.1 also requires a minimum separation distance of 533 metres between a hog operation and a residence. Greyda proposes a separation distance of 373 metres.  The minimum separation distances in the By-law mirror those in the MDS Implementation Guidelines published by the Ministry of Agriculture, Food and Rural Affairs.

With respect to the MDS setback, the OMB found the proposed residence is an “agricultural use” under the provisions of the Township Official Plan since the Greyda operations clearly qualify as a family farm. It found too that a family farm is a 24/7 operation requiring on-site living accommodations.

After consideration of all the evidence, the OMB found that the proposed Greyda farm residence conforms to the general intent and purpose of both the Township of Enniskillen Official Plan and By-law as well as the County of Lambton Official Plan. It also found that the proposed farm residence is desirable for the appropriate development of the subject lands and that the proposed minor variance from both the top-of-bank as well as the minimum distance separation provisions in the By-law is minor in nature. No evidence was advanced by the municipality that there would be any adverse impact on any neighbouring lands as a result of the proposed development.

Read the decision at: Greyda Plains Poultry Ltd.

Wednesday, August 25, 2010

Landowner boycotts hearing of drainage appeal; costs awarded against him

After a series of recent adjournment requests were denied by the Agriculture, Food and Rural Affairs Tribunal, landowner Richard Gosselin decided to boycott the hearing of his Drainage Act appeal.  A letter from his lawyer stated:
... in light of the actions and behaviour of the Tribunal and, in particular Vice-Chair O'Kane, and the recent actions by the Township and its counsel which we feel are highly prejudicial to the Appellants and have resulted in a complete lack of procedural fairness in these proceedings Mr. Gosselin will not be in attendance at this morning's hearing.
Richard Gosselin and others appealed the July 12th, 2002 report under s. 48 and s. 54 of the Act. The Tribunal held that first appeal hearing November 8th, 2002 and released interim decisions on February 20th, 2003 and May 12th, 2003, and a final decision on September 29th, 2003.
The Engineer sought a review of that September 29th, 2003 decision under s. 29 of the Tribunal's Rules. The request for review resulted in a second hearing on June 25th, 2004 and a further Tribunal decision dated October 8th, 2004.

In January 2005, Richard Gosselin and others appealed the assessments in the Report under s. 54 of the Act to the Court of Revision.

In February 2005, Richard Gosselin and others started a proceeding before the Drainage Referee under s. 79 of the Act to compel drain repairs associated with the original 1980 report that created the drains.

On May 25th, 2005, the Tribunal heard the assessment appeals of Richard Gosselin and others from the decision of the Court of Revision. The Tribunal released a decision on June 10th, 2005.

On July 4th, 2005, Richard Gosselin and others attempted an appeal of the Tribunal's June 10th, 2005 decision to the Drainage Referee, even though under s. 101 of the Act that Tribunal decision was a final decision.

During the summer of 2005, Richard Gosselin and others requested the Tribunal review its June 10th, 2005 decision. On August 17th, 2005, the Tribunal declined to grant Richard Gosselin's requested review.

In 2007, Richard Gosselin started a Superior Court of Justice lawsuit against the Township. The lawsuit was over the Township's alleged failure to do necessary repairs and improvements to the drain and it alleged that because of the Township's negligence and breach of statutory duty, Mr. Gosselin had suffered damages. The Court dismissed that 2007 lawsuit (SCJ File No. 55048/07) without costs, on a consent basis by an Order of the Honourable Justice McGarry on March 25th, 2009.

Also in 2007, Richard Gosselin started expropriation proceedings before the Ontario Municipal Board under the Expropriations Act. The essence of Mr. Gosselin's claim for compensation was his assertion that the municipal drainage works resulted in an expropriation of his lands. The Tribunal understands that Richard Gosselin subsequently withdrew that expropriation proceeding.

In the Drainage Act appeal before the Tribunal, the Tribunal concluded that, in these circumstances, Richard Gosselin should pay costs to the Township totalling $10,000.  The Township incurred the legal, engineering and staff costs associated with responding to Richard Gosselin's appeal. The Township incurred wasted costs associated with the adjourned appeal hearings of May 26th-27th and June 24th-25th. The Township incurred costs associated with being ready to respond to Richard Gosselin's appeal on July 21st-22nd even though Richard Gosselin did not appear.  The costs incurred by the Township are ultimately borne by the landowners on the drain as part of the assessment of the costs of the drain project or borne by the taxpayers in the municipality. In either event, it would be unfair to burden landowners on the drain or taxpayers in the municipality with costs incurred because of the tactics of Richard Gosselin that caused needless waste and expense. Therefore, the $10,000 costs assessed against Richard Gosselin will be credited against the costs of the drain before calculating the final assessments of the landowners on the drain.

Also, importantly, the Tribunal noted that had it had the jurisdiction to do so, it would have ordered part of the costs against Gosselin to be paid by his lawyer based on her "unreasonable, frivolous or vexatious" conduct:
Ignoring Tribunal Orders, disregarding Rules, ignoring the Act, seeking to circumvent the Tribunal's jurisdiction under the Act, writing to the Tribunal in the way Ms. Neil did multiple times, serially trying to re-argue already decided issues in correspondence outside a hearing, attempting to intimidate the Tribunal with threats of reviews and judicial review are conduct that individually might be worthy of a "bad conduct" cost award. However, when viewed collectively in the context of this case there is no question that a "bad conduct" cost award is necessary. Ms. Neil failed to attend a scheduled appeal hearing. Ms. Neil filed to cooperate with the Tribunal and opposing counsel at almost every opportunity. Ms. Neil changed her client's position about the grounds for adjourning the appeal hearing on several occasions. Ms. Neil changed her client's position about attending the appeal hearing twice. Ms. Neil tried to circumvent the Tribunal with her strategy to take all her client's issues before the Referee when the Act does not permit that. Ms. Neil sought to adjourn the appeal hearings on multiple occasions, ostensibly in pursuit of irrelevant documentary disclosure. Throughout all of these actions, Ms. Neil failed to provide any evidence that supported her client's position on a balance of probabilities.
This conduct encompasses every one of the Rule 28 examples listed that support an award of costs.

The Tribunal is unaware if Ms. Neil was the architect of this conduct or merely allowed herself to become the puppet in her client's strategy. In either case, Ms. Neil's conduct was unreasonable, frivolous or vexatious.
Read the decision at: Hambly Sabourin Drain.

Tuesday, August 24, 2010

Agriculture, Food and Rural Affairs Tribunal comments on Drainage Act principles

In an appeal decision concerning the Thorpe-Ellis Drain in South Dundas, Ontario (first constructed in 1891), the Agriculture, Food and Rural Affairs Tribunal provided the following comment on Drainage Act projects and requirements for assessment reports:

As a general principle, projects constructed under the Act are on a user pay basis. A cost estimate is prepared for the project and then an Assessment Schedule is prepared to recover the cost of the project from the landowners affected by the project. The Tribunal notes that the Assessment Schedule in the Report does not provide the totals for each column in the schedule. These totals are essential to verify that the costs and the assessments balance, especially after appeals have been made that may alter the assessments. Sub totals for land assessments and road assessments are also useful in prorating the final cost of the project and to assist the drainage superintendent in the prorating of future maintenance costs. The Assessment Schedule also does not contain page numbers which are essential to ensure that the schedule is complete and that no pages are missing. It would also be helpful to have the column headings repeated at the top of each page.
In the specific case under appeal, the landowner making the appeal was successful in lowering his assessment by $130.  With his property affected by two municipal drains, the Appeal Tribunal found that as a matter of principle his property could not be assessed an amount that would represent more than 100% of his combined use of the two drains:
The only point in contention is the area of Mr. Barclay's land that outlets into the Thorpe-Ellis Drain. The difference in area determined by the various submissions amounts to a maximum of 3.4 acres (1.4 ha). While the Tribunal accepts that this difference is well within the normal accuracy for determination of drainage areas, the Tribunal also accepts the principle, that for surface drainage projects of this type, the area drained by the Ferguson Drain and the Thorpe-Ellis Drain must not exceed the total area of land owned by Mr. Barclay which is 245 acres (100 ha.). The Tribunal will order that Mr. Barclay's outlet assessments be reduced by $130.00 to account for this discrepancy. This amount will be added to the road assessment of the Municipality in the same manner as the other imbalances resulting from the Court of Revision decision.
Read the decision at: Thorpe Ellis Municipal Drain.

Friday, August 20, 2010

Updates on the Enbridge oil spill in Michigan

Enbridge executives provided updates on clean-up activities in Michigan at a news conference yesterday:

Patrick Daniel, President & CEO, Enbridge Inc.
We continue to make very good progress on clean-up at the leak site and also along Talmadge Creek and we're now well underway with clean-up on the Kalamazoo River as well.

I was at the Ceresco Dam and also visited Heritage Park yesterday and the river is significantly improved at those locations from what it was a week, two weeks or three weeks ago.

The primary clean-up on the banks of Talmadge Creek is now over half complete and we continue to make very good progress in preparing the lower half of the creek shoreline to be scraped and cleaned as well.

We're also, of course, very pleased that our eight work plans have now been approved by EPA.

Personally I continue to work very closely with residents in the most directly impacted areas. These are people whose lives and routines have been temporarily disrupted by the spill and now by the workers and the equipment and the noise associated with the clean-up, but thankfully that is starting to lessen in many areas.

The number of visits to our Battle Creek and Marshall Community Centers continue to decline. Some are coming in of course to file claims which are being handled while others have come in simply for information with regard to the spill and I remind residents that the facility is available for both purposes.

Since the voluntary evacuation was lifted for all residents, many of the people who chose to evacuate are beginning to leave the area hotels now and return to their homes which is also very good news. We look forward to getting this community resettled in advance of school starting later this month and, as indicated earlier, relocating our emergency response facilities out of the school.
Steve Wuori, Executive Vice President, Liquids Pipelines, Enbridge Pipelines Inc.

I'll just talk about a couple of areas. One is the Talmadge Creek clean-up which is progressing very quickly and, as Pat said, is over half complete in terms of the excavation so far. We're moving that very quickly because we really want to reduce the heavy equipment traffic as we head toward the end of the month as much as we possibly can and that's why the activity is so intense. We are now west of I69 and working our way down toward the Kalamazoo River in terms of the final scraping of that area.

In terms of the river, in addition to the comments that Mark Durno from the EPA made earlier I'll just note that the river has been sectioned into quarter mile sections that have been individually assessed. There's a shoreline assessment process that is looking at the shoreline on both sides of the river and that's now been completed.

Up until this point most of the work has been removal of oiled vegetation along the shoreline and now we'll move to the second stage of the clean-up which is working on the soils themselves and the lower vegetation, grasses and so on. So, that's what's really happening along the river and there will be a continual intensity of workforce out there now working on those individual areas as we've identified them.

There was a question on the earlier call with regard to the work near Albion and I can confirm that that is one of the dig sites that we are working on in preparation for the test of the line. That's near the community of Albion. It's a very wet location so we had to drive sheet piling and we're de-watering that sheet piling area right now and preparing to examine the pipe. So, I think that addresses the question about what was happening in the Albion area.

Wednesday, August 18, 2010

Utility and Review Board upholds municipal watercourse set back decision in Nova Scotia

The Nova Scotia Mink Breeders Association (the “Association”) and various farmers: Kevin Hamilton, Heather King, William Brewer, Douglas Hurlbert, Carmen Comeau, Betty Reeves, and Walter Doucette, (“collectively referred to as “individual farmers”) appealed from a decision of Council for the Municipality of the District of Yarmouth (“Yarmouth” or “Municipality”) which amended Part 23, s. 5(c) of the Land Use By-law (“LUB”) to increase the required minimum setback from 328 to 500 feet from any off-site waterwell or any watercourse or waterbody (“amended LUB”). Yarmouth’s Municipal Planning Strategy (“MPS”) includes policies to protect water quality, encourage agriculture, and determine the minimum setbacks from water bodies for fox, fur, hog and fowl operations. The appeals of the Appellants are made pursuant to s. 250(1)(a) of the Municipal Government Act, S.N.S. 1998, c. 18 as amended (the “MGA”).  The sole issue in the appeal was: Does Council’s decision to amend the LUB reasonably carry out the intent of Yarmouth’s MPS?

The individual farmers filed an appeal with the Nova Scotia Utility and Review Board on November 16, 2009 alleging the by-law amendment was contrary to the intent of all by-laws requiring the encouragement of agriculture. Furthermore, they alleged the setbacks discourage agriculture and reduced the value of their farms. On November 17, 2009, the Association filed an appeal with the Board alleging the by-law amendment does not reasonably carry out the intent of the MPS. Specifically, it stated that the amendment does not carry out the intent of policy H-7 which is to encourage any endeavor to promote the growth of agriculture. Furthermore, it claimed the setback is arbitrary in nature and not based on solid scientific evidence. On November 17, 2009, the Nova Scotia Federation of Agriculture filed an appeal with the Board, on the same grounds as the Association, which it later withdrew.

The Board dismissed the appeals, finding:
The fact that at sometime in the future the Province may develop regulations that better manage the fur industry in Nova Scotia does not prohibit the Municipality from taking what action it can within its By-Laws to implement its MPS for its citizens. Whether it’s the most effective means of addressing the problem is not for the Board to determine.  From the evidence before the Board, Council sought to strike a balance between encouraging farming and the preservation of its lakes and watercourses taking into consideration the blue green algae, its toxins and related health issues. Having considered both issues and making a decision of 500 feet, the Board finds that in the circumstances of this case, Council has reasonably carried out the intent of the MPS.
Read the decision at: Re: Nova Scotia Mink Breeders Association.

Tuesday, August 17, 2010

OPA decides to pay $64.2 per kWh for ground-mounted solar power

Ontario Power Authority Finalizes Price for New Ground-mounted Solar Category



Consultations Inform Fair Outcome

August 13, 2010, Toronto, ON – The Ontario Power Authority today announced that following a 30-day consultation period, it has finalized the price for the new microFIT ground-mounted solar price category at 64.2 cents per kilowatt-hour (kWh).

The finalized price reflects input received during the consultation period and incorporates a wider variation of cost inputs and project configurations, including higher operating and maintenance costs for ground-mounted tracking systems.

The price strikes the right balance between providing a reasonable rate of return to electricity generators and protecting ratepayers from higher than necessary electricity prices.

“The outcome of a constructive consultation process is that these changes provide fairness for those who have applied to the existing program and good value for clean energy,” said Minister of Energy and Infrastructure Brad Duguid. “The microFIT program will continue to be a sustainable program that encourages residents to participate in the growing clean energy economy.” “The microFIT program has been tremendously successful since it was launched in October 2009,” says Colin Andersen, Chief Executive Officer of the Ontario Power Authority. “With these changes, it has been made even stronger going forward.”

The new price category is effective immediately for eligible projects with applications submitted after noon on July 2, 2010, when a new price category was proposed. Eligible ground-mounted applications submitted prior to noon on July 2, 2010, will receive the original price of 80.2 cents/kWh whether or not they have received a contract or conditional offer. These applicants will also have until May 31, 2011, to install and request a connection for their projects before higher domestic content requirements are required. Ground-mounted solar microFIT contracts signed and conditional offers received before July 2 will continue to be eligible for the original price of 80.2 cents/kWh.

During the 30-day consultation period, the OPA held three web-enabled teleconferences with 1,665 participants and received 1,645 written submissions about the proposed price. Based on this input, the OPA is also making the following announcements:

To improve communication and increase transparency, the OPA is establishing a microFIT program advisory panel that will provide advice on program evolution, including the two-year review process. The panel will be made up of industry, academic and other stakeholder representatives.

Commercial aggregators (e.g., businesses that lease land or rooftops from individuals for multiple renewable energy projects) will no longer be allowed to participate in the microFIT program. This will ensure that the microFIT program is focused on its original purpose – encouraging homeowners, farmers, farm co-operatives, Aboriginal communities, small businesses and institutions such as schools, to own and develop small renewable projects.

The panel will make recommendations, on an expedited basis, about appropriate contracting provisions for aggregators to reflect the unique nature of commercial micro projects. This will help ensure that commercial aggregators can continue to participate in the clean energy economy but do so outside of the microFIT program structure.

To implement these changes announced today, new microFIT applications will be accepted beginning on Friday, August 20.

The OPA has received almost 19,000 microFIT applications since the program was launched less than a year ago. More than 6,100 conditional offers have been sent to applicants and almost 800 microFIT projects are now feeding clean energy into Ontario’s grid.

The OPA is working to respond quickly to microFIT applicants. Most ground-mounted applications that have been submitted will be processed by the end of September. Details on the timeline goals for offering conditional contracts are available on the microFIT website, microfit.powerauthority.on.ca.

The OPA will host a webinar on August 18 from 2 to 4 p.m. to answer questions about the finalized price, the advisory panel and other details. Information on how to participate can be found on the microFIT website.

The new microFIT program encourages the development of small-scale renewable energy projects (solar, wind, water, bioenergy) of 10 kilowatts or less from a diverse range of producers, including homeowners, farmers, schools, First Nations and small businesses. It is part of a broader Ontario feed-in tariff (FIT) program, the most comprehensive of its kind in North America.

The Ontario Power Authority is responsible for ensuring a reliable, sustainable supply of electricity for Ontario. Its four key areas of focus are: planning the power system for the long term, leading and co-ordinating conservation initiatives across the province, ensuring development of needed generation resources, and supporting the continued evolution of the electricity sector.

Media contacts:

Tim Butters
Ontario Power Authority
Toll Free: 1-800-797-9604

Andrew Block
Office of the Honourable Brad Duguid
Minister of Energy and Infrastructure

©2009 Ontario Power Authority

Sunday, August 15, 2010

Michigan Representative says Enbridge repeatedly restarted pipeline after rupture

Noel Griese of Energy Pipeline News has a report on statements made on August 4 by Representative Mark Schauer (Dem.) of Michigan about the recent Enbridge oil spill into the Kalamazoo River.  The National Transportation Safety Board thinks the rupture occurred around 6 p.m. on July 25, when the pipeline was shut down for maintenance.  Schauer says that Enbridge restarted the pipeline at 4:26 a.m. on July 26 and repeatedly turned it on and off for the next several hours because of spikes in readings, Schauer said. Each time the line was restarted, more oil would spew from the five-foot-long rupture or “smile” in the compromised pipeline. That would explain the exceptionally large volume spilled.

Read the article at: Energy Pipeline News.

Friday, August 13, 2010

Saskatchewan farmer convicted for offering a stray animal for sale

On inspecting cattle delivered by the accused, Douglas Lamb, to the Spiritwood stockyards on January 19, 2010, Brand Inspector Kenneth Wasden noticed that one calf was of a different colour, had a different ear tag, and a brand on the left rib. The brand could not be clearly identified before clipping the hair covering it, but was noticeable because the hair covering it was of a lighter colour. The animal was black with a black and white spotted face, referred to as “brockle face”. Wasden had noticed the brand from six to eight feet away. The ear tag was hand printed with a letter and numbers, whereas the other cattle had factory printed ear tags with numbers only. Both types of ear tag were yellow in colour. 

The animal appeared to be stunted, which he attributed to lack of nourishment from early weaning and its hair was rougher. If born in the spring, it should have weighed between 600 and 800 pounds, rather than 450.  The other 20 cattle delivered by the accused were exotic cross-breeds (Simmental and Charolais) and were larger, heavier animals. None of the others were black in colour. The calf in question was a Black Angus cross. The body condition was similar to that of the others, but it was smaller in size.

Richard Williams is a large cattle rancher from Alberta, but brings some cattle to Saskatchewan to pasture in the summer. He brought between 230 and 240 head of cattle to the Rabbit Lake pasture in 2009. He recalled a fence being down between his pasture and that of the accused, which he repaired. When the cattle were transported back to Alberta in the fall, there was one calf missing. Williams identified the calf’s brand and the type of hand lettered ear tag as his, and the black brockle face calf as a product of his cross-breeding Herefords and Black Angus, born in the spring of 2009.

In the eyes of the Court, the Crown proved on this evidence beyond a reasonable doubt that the accused offered a stray animal for sale in violation of the Stray Animals Act. As the charge is a strict liability offence, the defence of due diligence would apply if the accused could prove on a balance of probabilities that he took all due care.  Due care is simply what a reasonable person would have done in the circumstances. The accused must have taken all reasonable steps to avoid the event in order to show that he was not negligent.

The Court disbelieved Lamb's evidence about what he knew and didn't know about the calf in question, and found that he had not taken reasonable steps to avoid committing the offence.  To not recognize your own calves in such a small herd alone shows lack of a reasonable standard of care, in the judge's opinion. In addition, failing to notice a bawling, orphaned calf, and failing to observe an obvious brand also shows lack of due diligence. The accused should have been checking his animals carefully enough and been familiar enough with them to have detected this stray calf among them.

Read the full decision at: R. v. Lamb.

Thursday, August 12, 2010

BSE Class Action going national

The Ontario Superior Court of Justice is allowing an amendment to the BSE class action that will expand the plaintiff class to include Quebec farmers.  The change will be conditional on a similar action in Quebec being suspended or "stayed" in favour of the Ontario "national" action.  Also, the Court would not allow this amendment without including an opt-out right for Quebec farmers who would fall within the plaintiff class (those alleged to have suffered damages as a result of the Canadian government's actions in connection with the BSE "outbreak" in 2003). 

For at least the past year, the parties have discussed the desirability of proceeding in a single jurisdiction with a result that would be binding on all cattle farmers across Canada. The subject has been canvassed at various case conferences and court attendances in Ontario and Québec. On May 27, 2010, judges in Ontario and Quebec held a joint case management teleconference involving counsel in this action and the ongoing Quebec action. It was agreed that a motion could be brought in Ontario requesting amendment of the class definition to include the Québec class members, conditional on a suspension or stay of the Quebec action.

The Court also commented that the right to opt out is not a mere technicality. It is the foundation for the court’s jurisdiction over class members because it is the mechanism by which those class members become bound by the court’s decision. This was emphasized by Sharpe J.A. in giving the judgment of the Court of Appeal in Currie v. McDonald’s Restaurants of Canada Ltd. 2005 CanLII 3360 (ON C.A.), (2005), 74 O.R. (3d) 321, [2005] O.J. No. 506 (C.A.) at para. 28:
The right to opt out is an important procedural protection afforded to unnamed class action plaintiffs. Taking appropriate steps to opt out and remove themselves from the action allows unnamed class action plaintiffs to preserve legal rights that would otherwise be determined or compromised in the class proceeding. Although she was not referring to inter-jurisdictional issues, in Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46 (CanLII), [2001] 2 S.C.R. 534 at para. 49, McLachlin C.J.C. identified the importance of notice as it relates to the right to opt out: "A judgment is binding on a class member only if the class member is notified of the suit and given an opportunity to exclude himself or herself from the proceeding." The right afforded to plaintiff class members to opt out has been found to provide some protection to out-of-province claimants who would prefer to litigate their claims elsewhere: Webb v. K-Mart Canada Ltd. 1999 CanLII 15076 (ON S.C.), (1999), 45 O.R. (3d) 389 at 404 (S.C.J.). It is obvious, however, that if the right to opt out is to be meaningful, the unnamed plaintiff must know about it and that, in turn, implicates the adequacy of the notice afforded to the unnamed plaintiff.
In this case, the grant of opt-out rights to the newly-added Québec class members supports comity and displays deference to the court of a sister province by respecting the right of residents of that province to opt out of a proceeding in Ontario if they do not wish to be bound by the outcome.

Read the decision at: Sauer v. Canada (Attorney General).

Wednesday, August 11, 2010

Woodstock dairy farmer fined after manure spill into creek


WOODSTOCK – On July 8, 2010, Adrianus Leonardus Maria Van Lith plead guilty to two violations under the Ontario Water Resources Act for a spill of cattle manure into Moon Creek and for failing to notify the ministry of the spill.

The Court heard that Mr. Van Lith is the owner of a dairy cattle farm in Woodstock. On March 16, 2008, a citizen reported a spill of dairy manure into Moon Creek, to the ministry. On March 18, 2008, a ministry officer attended the scene and took photos. The officer confirmed the spill had occurred when the earthen manure lagoon overflowed and ran down a snow covered field to Moon Creek. Samples were collected and the analysis results showed that the manure was a polluting material and may have impaired the water of Moon Creek.

Mr. Van Lith was charged following an investigation by the ministry’s Investigations and Enforcement Branch.

Mr. Van Lith was fined $16,000 plus a victim fine surcharge (an additional 25% or $4,000) and was given 12 months to pay the fine.

Tuesday, August 10, 2010

Enbridge Michigan oil spill originated from five foot long tear in pipe

An Enbridge company representative has reported that the breach in the Enbridge pipeline that spilled crude oil into the Kalamazoo River was less than five feet (1.5 metres) long.  Crews have extracted a 50 foot section of pipe that includes the torn section and sent it off to Washington for analysis by the National Transportation Safety Board.  A replacement section is being welded into place, but it is not known when the pipeline will resume operation.  U.S. authorities must approval a restart plan and will likely require that the pipeline be operated at reduced pressures.  The U.S. EPA is investigating whether Enbridge was negligent in the period leading up to the spill on July 26th. 

Monday, August 9, 2010

A Guide to Ontario's Line Fences Act

This Guide deals with the arbitration of fencing disputes in those parts of Ontario that are organized for municipal purposes, where the arbitration of fencing disputes is a responsibility of local municipalities.

Read the Guide at: A Guide to Ontario's Line Fences Act.

The Line Fences Act and Abandoned Rail Rights of Way

In 2005, in response to concerns expressed by owners of abandoned rail rights-of-way and the agricultural community the Minister of Municipal Affairs and Housing asked Dr. Wayne Caldwell to consult with key stakeholders to identify the issues, develop possible solutions, build consensus and provide non-binding advice on possible changes to section 20 of the Line Fences Act.  The result was a substantial report on the subject by Dr. Caldwell:
Abandoned Rail Right of Ways (ARROWs) and the need for fencing create a unique challenge for the Line Fences Act. While federal requirements for fencing of active rail right-of-ways are contained in the Railway Safety Act3 the provincial Line Fences Act has jurisdiction over fencing adjacent to ARROWs. Specifically the legislation under Section 20 requires municipal owners (as well as the Crown in right of Ontario and a crown agency and any non-adjacent landowner) of former or abandoned rail right-of-ways to construct and maintain, in perpetuity, all fences adjacent to all ARROWs that have come into municipal ownership.

The requirement of the legislation that fencing be provided by municipalities has become an issue from two perspectives. From municipalities’ perspectives there is a concern that they will be required to provide and maintain miles of unneeded fences. From an agricultural perspective some municipalities have been reticent to fulfill their obligations and some farmers have been forced to resort to the courts to ensure that appropriate fences are constructed. Amidst these two issues are a myriad of subtleties that will be explored later within this report.

In response to municipal and agricultural concerns the province initiated this study with the following three goals:
􀂃 To identify all issues related to line fence responsibilities on abandoned rail rights-of-way and develop possible solutions.

􀂃 Seek to build consensus on possible solutions to issues and to identify areas where no consensus has been reached.

􀂃 To provide non-binding advice to the Minister on improvements to section 20 of the Line Fences Act and on other actions that may provide relief to the issues identified.
Read the full report at: The Line Fences Act and Abandoned Rail Right of Ways.

Friday, August 6, 2010

Good drainage makes for good neighbours?

Click on the following link to read OMAFRA's 1998 paper on common law drainage problems between neighbours: Factsheet 98-015.  Remember that, generally, one neighbour has no right to drain his or her water onto neighbouring lands.  Likewise, the other neighbour has no obligation to allow the water to drain onto his or her land. 

Thursday, August 5, 2010

Enbridge wants to avoid lawsuits - offers to buy homes in vicinity of oil spill

Phaedra Friend Troy of Penn Energy has reported on the Enbridge response to threats of legal action.  Patrick Daniel, Enbridge's CEO, says that no one has to sue in order to be "made whole".  Enbridge has actually offered to purchase all of the properties within 200 feet of the Kalamazoo River spill.  The price offered is the asking price for the homes before the spill or the pre-spill appraised value of homes that were not already offered for sale.

Read the article at: Penn Energy article - August 4, 2010.

Tuesday, August 3, 2010

National Transportation Safety Board - Enbridge Oil Spill Timeline

NTSB probe validates Enbridge's account of oil spill detnews.com The Detroit News

Click on the link above to read The Detroit News article about Enbridge's response to the oil spill in Michigan. The article includes a detailed timeline based on the preliminary results of the investigation of the spill by the US National Transportation Safety Board.

Ontario Chicken Producer denied stay of out-of-province processing moratorium

Mr. Henry Bos filed a motion under section 25 of the Ministry of Agriculture, Food and Rural Affairs Act (the MAFRAA) for a stay of the Chicken Farmers of Ontario (CFO) Regulation 2274-2009 (the Regulation) and Policy 175-2009 (the Policy).  Mr. Bos proposed the stay operate until the Agriculture, Food and Rural Affairs Tribunal disposes of his appeal of the Regulation and Policy, and that the stay operate to exempt all kilograms allocated to him by CFO.

The Regulation imposed a moratorium on approval for any new processing contracts between Ontario chicken producers like Mr. Bos and out of province chicken processors. The Policy suspended chicken production quota allocations to Ontario chicken producers who entered into new processing contracts with out of province chicken processors. As part of the moratorium, CFO grandfathered any existing processing contracts between Ontario chicken producers and out of province processors.

The Tribunal commented in its decision on the nature of a "stay":
The parties appear to agree that the controlling authority in Ontario in a fact situation with some parallels is the Divisional Court decision in Denby v. Ontario 2006 CanLII 63736. At paragraph 40, the Court stated:
A "stay in the matter" may refer to a maintenance of a status quo in terms of the conduct or entitlement of a party. It does not, to repeat ourselves for emphasis, result in the automatic "suspension" of legislation validly enacted or to be enacted in the future. To suggest otherwise would be patently illogical.
It is clear from that authority, that a stay is intended to preserve a "status quo". The Tribunal finds the corollary of that principle is that a stay is not intended to expand beyond the status quo prevailing when the appeal was commenced.
The Tribunal dismissed Bos' motion for a stay.  It found that a stay was not required to preserve the "status quo" for Bos as it existed at the time he filed his appeal of the Regulation and Policy.  Even though Bos' Ontario processor (which took 80% of his production) cancelled his contract, CFO maintained that it would be required to find a new processor to take up the slack. 

Note that this is an interim decision on the motion for a stay.  No decision has yet been made on the actual appeal of the Regulation and Policy.
Read the decision at: Henry Bos v. Chicken Farmers of Ontario - Motion Hearing.

Sunday, August 1, 2010

US Environmental Protection Agency dissatisfied with Enbridge clean-up plan

CBC News - World - Enbridge must file river cleanup plan

The US EPA has rejected a long-term clean-up plan filed by Enbridge in the aftermath of its massive oil spill in Michigan because of "deficiencies in content and technical details".  Read the CBC story by clicking on the link above.

I posted earlier this week about plans in Canada by the National Energy Board to provide an approval mechanism for contamination remediation by companies like Enbridge.  It's not hard to see the difference in approach being followed in the United States, at least in the wake of the BP disaster in the Gulf of Mexico.  South of the border, it's not the energy project approval body that will decide when the contamination has been cleaned up appropriately - it's the EPA.  In other words, it's not a body whose primary concern is the ongoing development of the energy sector.  Canada has Environment Canada and the provincial ministries of the environment.  Landowners should be asking why the NEB is choosing to step into this issue at this time.