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.

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.

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.

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.

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.

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.

Photos from 2010 Bruce County Heritage Association Show in Paisley, Ontario

International Harvest feature this year:

Click here to view photos: 2010 Bruce County Heritage Association Show

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.