Canadian Lawyer InHouse

Industry Spotlight November 2013, the Newfoundland and Labrador government said it would not consider any fracking applications until it had assessed the geological impact on the west of the province and carried out a full review of the regulations, rules, and guidelines. Nova Scotia issued a two-year fracking ban in 2012 pending a report due to be released next year. The government also plans to ban any fracking waste water from being imported to the province. Natural gas explorations by SWN Resources Canada Inc. have been met with angry protests in New Brunswick by First Nation communities. At a protest last October, 40 people were arrested for firearms offences, threats, intimidation, mischief, and violating the court-ordered injunction after police cars were set alight and Molotov cocktails thrown at RCMP officers. Law enforcers had responded with tear gas and rubber bullets. Quebec's minority government is currently consulting on a bill that would impose a fracking moratorium for up to five years in the St. Lawrence valley. Landowners in the region are worried about water quality and the agricultural impact, and the Parti Quebecois had pledged a moratorium during the 2012 election campaign. After the election, the PQ shelved a strategic environmental assessment on fracking, ordered by the former Liberal government, and asked Le Bureau d'audiences publiques sur l'environnement to carry out a new review. "This has been brand new in Quebec '' The trouble with Quebec and New Brunswick is they don't have mature regulations, and don't understand the industry in the same way. That's what is driving a lot of it [the protests]. '' shawn Denstedt, Osler Hoskin & Harcourt LLP and unfortunately, when exploration started, industry didn't anticipate the reaction of the public," explains Paul Granda, environmental lawyer at Sheahan and Partners GP, based in Westmount, Que. "They're probably used to people being accustomed to seeing drill rigs in the middle of a field," he says. "Here in Quebec, that really raised the concerns of the public." Questions have also been raised as to whether the shale gas sector needs to be developed, given the province's recent electricity surplus and the availability of U.S. gas. Unsurprisingly, Saxe says she receives more requests for help on anti-fracking issues in Eastern Canada than elsewhere. The greater maturity of fracking regulations in the West may be helping to reassure local populations there. "B.C. and Alberta already have robust regulatory systems," says Denstedt. "The trouble with Quebec and New Brunswick is they don't have mature regulations, and don't understand the industry in the same way. That's what is driving a lot of it [the protests]." Regulations in Quebec are "fairly undeveloped," agrees Granda. However, he also warns an overly restrictive approach could backfire. "The former Liberal government adopted amendments to provide for specific information that has to be submitted when you want to do any shale gas exploration," he says. "The information required is fairly comprehensive, to the point where it probably discouraged many companies from pursuing any work." That isn't to say there's no opposition in the West. Last November, fracking protestors set up a fake rig on the lawn of B.C. Premier Christy Clark's Vancouver home. The risks are largely dependent on the type and depth of drilling, and on local geological factors, making it wise to weigh the risks on a case-by-case basis. "One thing I encourage municipalities to do when they contact us is think about the specific concerns of where they are," advises Saxe. "What's particularly vulnerable in their location? Some areas are relatively robust. There are other cases where the population is entirely dependent on a limited aquifer which couldn't be replaced and is highly vulnerable." In these situations there's a "strong case" that extra protective steps should be taken, she recommends. IH canadianlawyermag.com/inhouse February 2014 37

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