A major court ruling was a reminder that British Columbians, and Canadians generally, have the environmental movement to thank for world-leading regulations that make the country a beacon of good practice.
"Is fracking safe?"
"Are tough enough laws in place to protect British Columbia water supplies while natural gas is extracted from the north-east's massive natural gas reserves?"
These are important questions as liquefied natural gas (LNG) projects on the BC coast continue with hopes to pin down long-term contracts for natural gas to be exported to markets across the Pacific.
Between them, according to one estimate I’ve heard from a reputable authority, BC and Alberta have enough exploitable natural gas reserves to serve all Canada’s homes for 8,100 years. Should the LNG business develop, multiple experts affirm there is plenty of excess supply for non-domestic demand.
In British Columbia alone, the gas industry handily leads a petroleum sector that spends up to $8 billion in the economy annually.
The majority of BC homes (56 per cent) are heated with natural gas of which about 60 per cent depends on fracking. This process historically has used a lot of water, but technology continues to improve that reduces the environmental impact – a key area of inquiry in a landmark court decision from 2014. With today's slow but seemingly steady progress of LNG activity, it's worth looking back on this ruling.
British Columbians, and Canadians generally, have the environmental movement to thank for continually testing laws resulting in world-leading regulations that make the country a beacon of good practice.
A consequential decision
The Western Canada Wilderness Committee and the Sierra Club filed a petition against the BC Oil and Gas Commission and energy company EnCana. The issue in question was the commission’s decision to grant repeat short-term water approvals to the company.
Before the judgment came down in the challenge, it was expected that it could have major consequences for the gas industry. And so it did – but not in the way hoped by Ecojustice, the environmental group that spearheaded the challenge.
Given the stated mission of Ecojustice (previously known as the Sierra Legal Defence Fund) to "ensure the long-term protection and health of our rich and diverse environment” mounting such a challenge seemed like a relevant type of activity.
To the surprise of some and the relief of others, Madame Justice Fitzpatrick delivered an overwhelming endorsement of the water protection practices in place.
It turns out that in British Columbia, just 0.006 per cent of water permits issued are for the oil-and-gas industry, and only a small portion of that water is actually withdrawn for use. (Ninety-eight per cent of water is for the hydro power industry.)
That's interesting enough. But wait for what made the ruling special.
Justice Fitzpatrick found no fault with the environmental protection laws in place, even though Ecojustice had accused the province of British Columbia of changing its water-protection legislation midway through the case in order to achieve a win, thus "allowing oil and gas companies to pollute and squander B.C.’s precious rivers and streams”.
The Supreme Court of BC judge found that water protection in the province was transparent and in the hands of science-based regulations which, the evidence showed, had done a creditable job in protecting the environment.
A major coup for those engaged in responsible resource development to meet the needs of society.
Ecojustice called the ruling “disappointing” and issued a news release critical of the court’s findings. Yet from the industry and government viewpoint, the ruling represented a broad and clear endorsement of the responsible practices in use that allow for the use of water supplies in the extraction of natural gas.
The judge ruled in favour of the integrity of water and oil-and-gas regulators in protecting water supplies.
It was in her opening praise for eco-values that the true meaning of the case came to light:
"Over the last few decades, the world has become increasingly aware that water is a precious resource. This heightened awareness has caused many persons, including public interest groups such as the petitioners, to question the management of our water resources, particularly as it relates to the use of publicly owned water by industry.”
Justice Fitzpatrick found that when it comes to the sound regulation of industry’s water management, British Columbia is in good shape with a "justifiable, transparent and intelligible framework for the regulation of short term water use.”
She wrapped up her analysis with further generous praise:
"This proceeding has raised an important issue concerning the use of a valuable public resource and it has gone beyond the immediate interests of the parties involved."
She cited another case that found that:
"...protection of waterways, fish habitats and other environmental values is a matter of vital public interest in British Columbia. The petitioners are non-profit societies that have taken on an important advocacy role on those issues. The issue they raised … is an important one that no one directly connected with the matter had any interest in raising.”
Canada’s courts have proved to be an effective tool in protecting the natural environment - especially when tempers flare and differences need to be settled by the calm rule of law.
At a moment when the search for economic and environmental balance seems to be at the heart of every public conversation, that is a reassuring thing.
The Ecojustice challenge was an exhaustively researched, meticulously detailed effort to see if there were any legal flaws in the system that allows resources companies to use water for their operations. You might expect that such a project would turn up some problem in the regulations. Instead, Justice Fitzpatrick found the transparency, practices, trust and common sense prevailed in the regulatory structures that govern hydraulic fracturing water use in British Columbia. This is why the ruling was so important for those wanting to be sure that the development of natural gas in BC, and with it LNG and other opportunities, is the responsible thing to do.
Once the ruling was issued, Ecojustice claimed victory. As a detailed analysis of the ruling's nine key points shows, there is no question that the court actually did rule in favour of regulated, responsible water access for industry.
1. Water license basic rules
2. Short-term water approvals
" ….While technically consecutive in timing, a recurrent approval is considered to be a new application and is subject to the same rigorous application process and requirements of either FLNRO or the Commission."
3. New legislation not “proof” of intent to undermine environmental lawyers
4. Licenses versus permits
 ….While technically consecutive in timing, a recurrent approval is considered to be a new application and is subject to the same rigorous application process and requirements of either FLNRO or the Commission.
 Despite the concerns of the Petitioners, it appears that the number of approvals granted for fracking is substantially down from that granted in 2009.
 Section 8 approvals all have an expiry date and that date may not be extended or continued. If the approval has expired, the operator must re-apply for a new approval. It is the Commission’s policy, as confirmed by the applicable application manual, that any re-application is to be considered as a new or “fresh” application with updated field information and documentation being required from the applicant, consistent with what is outlined above.