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Al-Pac Case Study
- Part II
Daniel
Farr, Biota Research
Steve Kennett, Canadian Institute of Resources Law
Monique M. Ross, Canadian Institute of Resources Law
Brad Stelfox, Forem Technologies
Marian Weber, Alberta Research Council
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This case study has been commissioned as background research
for the NRTEE’s Conserving Canada’s Natural
Capital: The Boreal Forest program.
The views expressed in the case study are those of the authors,
and do not necessarily represent those of the National Round
Table, its members, or the members of the program’s
Task Force.
July 2004
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2. Objectives and Scope
of the Case Study
This section reviews the principal
objectives of the case study and considers their relationship
to the broader issue of sustainable development. It also highlights
the distinctive resource values of the Al-Pac FMA and comments
briefly on the approach taken to constitutional and jurisdictional
issues.
2.1.
Objectives
The basic objectives and scope of
the case study were defined in the Request for Proposals issued
by the NRTEE and were further refined in the project proposal.
The case study is intended to identify fiscal and regulatory barriers
to conservation and policy options for conserving natural capital,
while recognizing the importance of resource development and other
economic and social values for land use in this area.
The case study is one of three case
studies commissioned by the NRTEE as part of its Conservation
of Canada’s Natural Heritage: The Boreal Forest program.
The goal of the program is “to advance conservation in balance
with economic activity on public lands allocated for resource
development in Canada’s boreal forest through regulatory
and fiscal policy reform.” The Boreal Forest program builds
on the findings, conclusions and recommendations contained in
Securing Canada’s Natural Capital: A Vision for Nature
Conservation in the 21st Century. 1
Securing Canada’s Natural
Capital also provides working definitions for two of the
key terms relating to the case study objectives. Appendix A to
the NRTEE’s report defines “conservation” as
“the maintenance or sustainable use of the Earth’s
resources in a manner that maintains ecosystems, species and genetic
diversity and the evolutionary and other processes that shaped
them.”2 “Natural capital” is defined as “natural
assets in their role of providing natural resource inputs and
environmental services for economic production.”3 The discussion
of this term identifies three main categories of natural capital
(renewable and non-renewable natural resource stocks, land and
ecosystems) and notes that resource stocks provide raw materials
for production, land provides space for economic activity, and
“ecosystems are essential for the services they provide
directly and indirectly to the economy.”4 The case study
did not involve a detailed analysis of definitional issues. Most
interviewees and workshop participants appeared to understand
clearly the focus of inquiry and were able to offer specific comments
on obstacles and policy options relating to the conservation of
natural capital.
The focus on conservation of natural
capital is consistent with the NRTEE’s overall mandate,
which is to “play the role of catalyst in identifying, explaining
and promoting, in all sectors of Canadian society and in all regions
of Canada, principles and practices of sustainable development.”
The following section reviews briefly the connection between the
specific objective of the case study and the broader issues relating
to sustainable development.
2.2.
Conservation of Natural Capital and Sustainable Development
Several people who were interviewed
for the case study said that the outline of issues and options
distributed before the interviews5 was too narrowly focused on
conservation. They argued that a broader sustainable development
perspective should be explicitly adopted when considering issues
and policy options relating to land and resource management in
the Al-Pac area. This issue was also discussed with NRTEE staff
on several occasions during the case study.
The authors of this case study report recognize that the design
and implementation of policies affecting land and resource use
in the Al-Pac FMA will, or at least should, involve a careful
consideration of economic, social and environmental values. Determining
the appropriate balance between these three elements of sustainable
development is a matter of political and, ultimately, social choice.
The full range of factors that should inform this choice and the
over-arching policy and institutional framework that will be required
to achieve sustainable development in practice are matters that
the NRTEE task force for the Boreal Forest program may want to
examine. They are, however, beyond the scope of this case study.
The focus here is simply on the principal barriers to the conservation
of natural capital in the Al-Pac FMA and the policy options that
could be used to promote this value, should it be recognized as
important by decision makers.
2.3.
Resource Values and Policy Choices in the Al-Pac FMA
The information and analysis presented
in Part 1 of this report demonstrate clearly the pervasive and
long-term challenges that must be addressed if the conservation
of natural capital is to co-exist with economic development on
the working landscape within the Al-Pac FMA. Many of the issues
raised by the range and intensity of development occurring on
the Al-Pac FMA are also being played out—or may be played
out in the future—in other areas of the boreal forest. In
some respects, however, the Al-Pac FMA embodies a unique set of
challenges.
In particular, the presence of globally
significant bitumen reserves in oil sands distinguishes portions
of the Al-Pac FMA from other areas of the boreal forest. This
subsurface resource has two important implications. First, its
high economic value will inevitably affect the trade-offs that
governments and society as a whole are prepared to make between
industrial activity and the conservation of natural capital. Second,
producing this resource precludes or constrains some conservation
options because of its relatively significant ecological impacts,
whether from surface mining or from in situ operations.
The concentration of high subsurface
resource values and significant ecological effects from development
within the oil sands area creates a very challenging environment
for initiatives directed at conserving natural capital. While
mitigation and reclamation in the oil sands area may be capable
of maintaining or restoring some aspects of natural capital, particularly
over the long term, many of the stakeholders interviewed for this
case study accept that economic development in the oil sands area
is inevitable and some argued that this development will have
a significant ecological cost. In addition, some interviewees
spoke of the need for policies that would provide opportunities
for offsetting these activities in areas outside the Al-Pac FMA.
This situation is not, however, typical
of the boreal forest as a whole. While the implications of oil
sands development for natural capital are undoubtedly significant
from a local and regional perspective, the total area that is
likely to be disturbed through surface mining and in situ operations
remains a relatively small portion of Canada’s boreal forest.
For that reason, the regulatory analysis for this case study has
not examined environmental issues unique to oil sands surface
mining and in situ recovery. These issues include the reclamation
of open-pit mines, the management of large tailing ponds, the
intense development footprint from in situ recovery, and the local
air quality issues associated with bitumen production and processing.
This choice of emphasis is not intended
to downplay the importance of oil sands development from environmental,
economic and social perspectives. For many local residents, notably
Aboriginal peoples, managing the environmental effects of oil
sands development is vitally important. Efforts to reconcile social,
cultural, economic and environmental values in this context clearly
merit attention and support. In terms of the broader objectives
of this case study, however, choices must be made and all issues
cannot receive equal attention. The decision not to examine in
detail the issues specific to oil sands development reflects the
limited resources available for this case study and the interest
of the NRTEE in results that are “nationally applicable.”
It should be noted, however, that few if any stakeholders interviewed
for this case study appear willing to “write off”
the oil sands area in terms of natural capital, and many individuals
and organizations are working hard to ensure that industrial development
in this area does not come at an unacceptable environmental price.
2.4.
Constitutional and Jurisdictional Issues
The regulatory context for land and
resource management within the Al-Pac FMA is, of course, defined
at a fundamental level by Canada’s constitution. The constitution
has potentially important implications for conservation in the
boreal forest because it establishes the division of powers between
the federal and provincial orders of government and it entrenches
the legal rights of Aboriginal peoples. These constitutional issues
are not, however, addressed in any detail in this case study.
The NRTEE’s Request for Proposals
states that the case study should focus particularly on barriers
to conservation that are “national in scope” and that
it should identify “nationally applicable” areas of
recommendation and “national level” incentives and
instruments. The analysis is not, however, restricted to areas
of federal jurisdiction, nor is the case study intended to address
the constitutional or intergovernmental aspects of resource and
environmental management in the Al-Pac FMA. The “national”
focus is achieved by highlighting the particular barriers and
policy options that are most likely to be relevant in other areas
of the boreal forest and, indeed, throughout other parts of Canada.
The case study was therefore guided
by the assumption that there are opportunities for both orders
of government to contribute to achieving conservation objectives
in the boreal forest within the current constitutional framework,
although it is recognized that the provincial role is predominant
in relation to many regulatory and fiscal tools. In particular,
the provincial government owns Crown land and resources in the
Al-Pac FMA and exercises most, but not all, of the regulatory
powers relating to land and resource use. As a result, authority
in areas such as land use planning, resource disposition and the
regulation of many of the activities that may affect natural capital
is in provincial hands.
Federal authority, while more limited
in scope, can be important in certain areas such as the protection
of fisheries and migratory birds, the regulation of toxic substances
and the management of transboundary issues. Recent federal legislation
dealing with species at risk supports a federal role in certain
circumstances. The federal government also has constitutional
authority over “Indians” and “lands reserved
for the Indians”6 and is responsible for ensuring that Aboriginal
and treaty rights are not unjustifiably infringed. Some projects
in the Al-Pac FMA are also subject to both federal and provincial
requirements for environmental assessments. Under the Canadian
Environmental Assessment Act, any federal assessment must consider
the environmental effects of a project “on the current use
of lands and resources for traditional purposes by aboriginal
persons” as well as on historical and archeological sites.
Finally, the federal government has the capacity to support initiatives
and influence activities through a broad range of policies and
programs, including the use of tax incentives and the ability
to fund activities in areas of provincial jurisdiction (the federal
“spending power”).
The discussion of regulatory issues
in this document is not, however, organized along jurisdictional
lines. Rather, it focuses on a set of barriers and management
objectives, many of which could be addressed in varying degrees
by the federal and Alberta governments acting either individually
or cooperatively. The types of intergovernmental conflict or cooperation
that could arise in this context and their implications for the
conservation of natural capital are left for others to consider.
A review of the evolution of Aboriginal
rights through constitutional jurisprudence is also beyond the
scope of this case study. The role of Aboriginal peoples in managing
the boreal forest is rapidly evolving in Canada as a result of
legal and political developments. One of the legal issues that
has been the subject of intense debate and scrutiny by the courts
is the government’s duty to consult with Aboriginal peoples
when its actions or decisions may infringe on their rights and
to accommodate these rights when making decisions that affect
them. This duty is particularly relevant to decisions pertaining
to resource developments that have the potential to negatively
affect lands and resources traditionally used by Aboriginal peoples
and the environment in which they live. While judicial consideration
of the “duty to consult and accommodate” is ongoing,
the federal and provincial governments, including the Alberta
government, are developing Aboriginal consultation policies that
may help to shape future land and resource management decisions
and lead to a greater involvement of Aboriginal communities in
the decision-making process. These legal and policy developments
may, in turn, influence the conservation of natural capital in
the boreal forest.
Furthermore, some Aboriginal organizations
in Canada have entered into agreements with resource companies
that address a broad range of issues, including the conservation
of natural capital. One person interviewed for this case study
remarked that, after climate change, Aboriginal peoples were likely
to be the single greatest influence on the future of the boreal
forest over the coming century. This important set of issues could
only be briefly examined within the time frame and budget allocated
for this case study. Aboriginal involvement in the case study
is discussed in the following section on study methodology.
