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File No. T-1590-07
File No. T-1974-07
Vancouver Registry

IN THE FEDERAL COURT OF CANADA

BETWEEN:
CASSIAR WATCH (APPLICANT)
AND:
DEPARTMENT OF FISHERIES AND OCEANS
and SHELL CANADA ENERGY (RESPONDENTS)

AFFIDAVIT

I, Martha Susan Kostuch, a resident of Clearwater County, Box 1288, Rocky Mountain House, Alberta, AFFIRM AND SAY AS FOLLOWS:

1) I am a retired veterinarian and an environmental advocate with significant experience in fisheries-related matters and I have reviewed portions of the file materials in this matter, and, as such, I have personal knowledge of the facts and matters hereinafter deposed to as stated below.

2) I currently serve in organizational and leadership positions in a number of environmental non-government organizations. My roles include the ENGO co-chair of the National Fish Habitat Coordinating Committee (2006-present), the Acid Rain Task Group (2005-present), the co-chair of the Water Caucus of the Canadian Environmental Network (RCEN) (1992-present), and as a member of the steering committees of RCEN’s Atmosphere Caucus. I also serve as a member of the steering committee of RCEN’s Environmental Assessment Caucus, which studies, produces reports, and makes policy recommendations in the area of Federal and Provincial Environmental Assessment regimes.

3) I contribute to various government panels, task forces and advisory groups. I am currently a member of the Alberta Ambient Air Quality Objectives Ministerial Committee (2001-present). In the past I have served on the Multi-Stakeholder Advisory Committee, the Hearings Panel and the Process Design Committee of the Alberta Oil Sands Review (2006-2007), the Acid Deposition Advisory Group to Alberta Environment (2001-2007), the Multi-Stakeholder Group on Particulate Matter and Ozone (1998-1999), the Alberta Environmental Impact Assessment Task Force (1989-1990) and the Environmental Council of Alberta (1979-1989), among others.

4) In my role as an environmental activist I have earned provincial and national recognition for facilitating improvements in managing air, land and water ecosystems across Alberta and Canada. Aside from the awards given to organizations of which I am or was a member, I have received numerous awards as an individual, including the Canadian Environmental Network’s Lifetime Achievement Award (2007), the Alberta Wilderness Defenders Award (2004), the Douglas Pimlott Award (2003), the Canadian Environment Award (2002), the Alberta Emerald Award (1992), the Archie Hogg Award (1983 and 1987), and the H.C.H. Kernkamp Award (1973). A copy of my Curriculum Vitae is attached to this affidavit as Exhibit “A”.

5) Over the past 15 years, I have developed an interest in DFO’s practice of issuing so-called Letters of Advice. I have studied, researched, and lectured on the subject of Letters of Advice. I have consulted with Ministers and made presentations to numerous Parliamentary Committees. I have made requests under the Access to Information Act by means of which I obtained copies of over 1,400 Letters of Advice issued in 2001 and 2002. I reviewed each of those Letters of Advice. I have also frequently spoken out publicly on Letters of Advice and have organized petitions in relation to Letters of Advice on behalf of the Friends of the Oldman River Society.

6) Letters of Advice are issued in the context of the requirements of the Fisheries Act and the Canadian Environmental Assessment Act, both of which enable and restrict the conduct of the Minister of Fisheries and Oceans. Section 35(1) of the Fisheries Act makes it an offence to cause any harmful alteration, disruption or destruction of fish habitat (“HADD”). Section 35(2) of the Fisheries Act provides that the Minister of Fisheries and Oceans can issue “authorizations” with or without conditions that allow a person to cause a HADD. Section 37(2) of the Fisheries Act allow the Minister of Fisheries and Oceans to “require modifications or additions” or “restrict” the work as necessary to prevent a HADD.

7) The CEAA was enacted in 1992 to ensure that projects are considered in a careful and precautionary manner, to ensure that projects do not cause significant adverse environmental effects, to ensure public participation and communications and coordination between government and aboriginal peoples. The CEAA works by imposing obligations on federal authorities to undertake Environmental Assessments. Environmental Assessments can take the form of screenings, comprehensive studies, or review panels, all of which entail obligations of varying intensity and rigour.

8) Prior to the enactment of the CEAA, the Department of Fisheries and Oceans issued more than 10,000 authorizations annually under s.35(2) of the Fisheries Act. Since the CEAA came into force, DFO has implemented a number of practices that, in my view, have the effect or purpose of avoiding the Minister’s obligations under the CEAA. Foremost among these practices is the DFO’s practice of issuing so-called “Letters of Advice”.

9) Since the enactment of CEAA, the number of authorizations under s.35(2) of the Fisheries Act have steeply declined. For example, the 2002-2003 Annual Report to Parliament of the Minister of Fisheries and Oceans reveals that of a total of 13,089 project proposals (“referrals”), the Minister issued 532 authorizations under s.35(2) of the Fisheries Act and 8,034 Letters of Advice. The 2003-2004 Annual Report sets out 13,234 referrals with 671 authorizations and 8,548 Letters of Advice. The 2004-2005 Annual Report list 9,763 referrals, with 655 authorizations under s.35(2) and 655 Letters of Advice. The 2006-2007 Annual Report lists 7,245 referrals, with 435 authorizations and 4,728 Letters of Advice. I know of no reason other than the enactment of the CEAA for the number of authorizations to drop so precipitously.

10) The practice of issuing Letters of Advice is now the most common form of administrative interaction between the Minister of Fisheries and Oceans and the proponents of projects that may have an impact of fish habitat. In my experience, and from my review of over 1,400 Letters of Advice, the quality of administrative decision-making involved in issuing Letters of Advice falls far below the quality of administrative decision-making involved in issuing authorizations under s.35(2) or 37(2) of the Fisheries Act. In particular, the lack of requirement any requirement associated with Letters of Advice to review all of the environmental effects of the project, to review the cumulative effects of the projects together with other existing and planned projects and to notify the public of project proposals, the lack of input and insight from interested and affected groups, communities and individuals, and the lack of discipline that typically follows from a requirement to provide written reasons and analysis diminishes the quality of administrative decision-making.

11) In my view, the Department of Fisheries and Oceans’ widespread practice of issuing Letters of Advice has a deleterious effect on fish habitat across Canada. Because the quality of decision-making is lower than the quality to be expected during an environmental assessment, the Department of Fisheries and Oceans approves projects that cause negative effects on fish habitat or else approve the use of mitigative measures that are insufficient to prevent negative effects on fish habitat. The cumulative effect of using Letters of Advice to avoid obligations under the CEAA is difficult to quantify with precision, but, in my opinion, it is very safe to say that the effect is large and negative.

12) The Fisheries Act and the CEAA provide the Minister of Fisheries and Oceans with a number of mechanisms to reduce the burden of conducting environmental assessments of projects which have little or no environmental impact. These mechanisms include regulations, screenings, an exemption list, and class screenings. Unlike Letters of Advice, these mechanisms are authorized by statute.

13) Letters of Advice are resistant to judicial oversight. Because the public is not notified of proposed projects, most projects proceed to completion without public awareness. Even if the public somehow becomes aware of a proposed project, and litigation is threatened or initiated, in my experience either DFO quickly initiates an environmental assessment or else, as in this case, the project is completed before the case can be heard and decided.

14) I have reviewed the following materials in preparing this affidavit:
a) The Rule 318 Certificate and Package (File No. T-1590-07) dated September 24, 2007, including the materials listed in Appendix A
b) The Rule 318 Certificate and Package (File No. T-1974-07) dated November 30, 2007, including the materials listed in Appendix B
c) The Letter of Advice dated August 16, 2007
d) The amendment to the August 16, 2007 Letter of Advice, communicated by email dated August 17, 2007
e) The Letter of Advice dated September 30, 2007 dealing with Site A
f) The Letter of Advice dated November 4, 2007 dealing with Site B
g) Affidavit #2 of Marvin Rosenau, sworn September 18, 2007

15) The materials show that Shell Canada Energy submitted two sets of project proposals to the Department of Fisheries and Oceans (“Proposal I” and “Proposal II”). Although some of the construction techniques proposed are different, Proposal I and Proposal II are similar in many respects, including the following:
a) Both proposals involve the same proponent, Shell Canada Energy;
b) Both proposals involve the same geographic features located on a stretch of Ealue Lake Road that runs adjacent to and crosses the Klappan River in Northern British Columbia;
c) Both proposals involve construction work on the same washed-out and eroded sections of Ealue Lake Road; and
d) Both proposals involve risks to the same fish species and fish habitat, albeit that the nature and extent of those risks vary to some extent according to the season.

16) Because Proposal I and II are similar in many respects, it is especially instructive to compare the administrative process employed by the DFO in dealing with each of them. Upon comparison, it is plain that Proposal II was subject to a much more elaborate and extensive review prior to the issuance of the Letters of Advice associated with the later proposal. It is helpful to consider the treatment accorded to Proposal I and Proposal II side-by-side because the divergence between the administrative processes is illustrative of the extreme variance in process that can result when fish habitat decisions are not structured and regularized by the CEAA. Considering Proposal I and Proposal II side-by-side is also instructive because it reveals the weakness of the August 16, 2007 Letter of Advice in failing to consider alternative construction proposals as would have been required under CEAA s.16(1)(e) and 16(2)(b).

17) Proposal I was essentially a private process for which the public received no notification, even though the fish habitat in the area is widely known to be of vital importance to the local First Nations communities. Indeed, attempts to ford Coyote Creek in the near vicinity of Ealue Lake Road in 2004 and 2005 lead to widely publicized protests, blockades, injunction applications, and a successful review of a DFO authorization in this honourable Court. It is would shock me if the Department of Fisheries and Oceans was unaware of the First Nations interest in the fish habitat on the Klappan River.

18) On the assumption that an EA was required to deal with Proposals I and II, the CEAA would have required a comprehensive study. The actual process used by DFO to deal with Proposal I and leading to the Letter of Advice dated August 16, 2007, amended August 17, 2007, fell short of the process mandated by a comprehensive study in the following respects:
a) Notice of the proposal was not given to the public, including internet notice (CEAA s.59.1);
b) The public was not provided an opportunity to express their concerns and make submissions;
c) There was no apparent consideration of alternate means of carrying out the project (CEAA s.16(1)(e) and 16(2)(b));
d) An environmental assessment coordinator was not involved in the process (CEAA s.12)
e) The determination by the Minister was not adequately documented and was not made available to the public (CEAA s.16.3)
f) No comprehensive study report was prepared or made available to the public (CEAA s.21.1 and 22)
g) No project record containing all records produced, collected or submitted was maintained (CEAA s.55.4(2))

19) DFO’s handling of Proposal II was much more elaborate than its way of handling Proposal I. DFO notified or arranged to have notified the Talhtan Central Council, the Tahltan First Nation, the Iskut Band Council, West Coast Environmental Law, Ecojustice (formerly Sierra Legal), the Western Wilderness Committee, and the Klabona Keepers Society, and provided each of them with an opportunity to make submissions. However, the process for dealing with Proposal II also fell short of the requirements for a comprehensive study under the CEAA. The administrative shortcomings include the following:
a) Internet notice of the proposal was not given to the public (CEAA s.59.1);
b) The public at large was not provided an opportunity to express their concerns and make submissions;
c) An environmental assessment coordinator was not involved in the process (CEAA s.12)
d) The determination by the Minister was not adequately documented and was not made available to the public (CEAA s.16.3)
e) No comprehensive study report was prepared or made available to the public (CEAA s.21.1 and 22)
f) No project record containing all records produced, collected or submitted was maintained (CEAA s.55.4(2))

20) I affirm this affidavit in relation to an order for production of documents, consolidation of the judicial reviews dealing with Proposals I and II, and in relation to a judicial review of the Letters of Advice mentioned above.



AFFIRMED BEFORE ME at Rocky )
Mountain House in the Province of )
Alberta this day of March, 2008 )
)
) ________________________
) MARTHA KOSTUCH
_____________________________ )
A Commissioner/Notary within and for
the Province of Alberta

Action Alert – April 22, 2004

In March, Clearwater County's Municipal Planning Commission (MPC) turned down a development application for the proposed Abraham Glacier Wellness Resort project in the Alberta Rocky Mountains. The decision was appealed and will be reviewed by the Appeal Board on May 4th and 5th, 2004.

The upscale resort is to be situated in the North Saskatchewan River Valley at Cline River, the last larger montane eco-system 1) of the Eastern Slopes still free from excessive commercial development. This area, only 40 km from Banff National Park, is crucial for wildlife, and special to both First Nations people and outdoor enthusiasts seeking tranquility and wilderness experience away from the over-developed tourism centres of the National Parks.

The proposed resort will consist of 5 main buildings, 5 guest lodges with a total of 90 guest rooms, as well as 130 (!) cottage units, plus ancillary buildings. It will provide spa, recreational, conference and dining facilities for up to 650 guests (excluding staff and day visitors) and in total plans to occupy about 520 acres (almost 2 square kilometres) 2). Original proposals included a clinic for cosmetic surgery which, shelved for the time being, is likely to re-surface with approval momentum. Over 300 staff to be housed in Nordegg, 45 km from the proposed resort, will also increase impact on the area.

The development permit application was turned down by the county because it was incomplete, contained conflicting information, did not meet some existing guidelines and regulations (e.g. overheight) and because the actual development site is considered unsuitable for such a large project. While the proponents have made small changes to the plans, they still fall short on addressing the environmental impact of up to 800 visitors daily on this environmentally sensitive region.

Issues of air, water, light, noise (an exponential increase of helicopter based activities and vehicular traffic is expected) and other pollution, energy conservation and impact on wildlife are only partially dealt with. The provincial government ruled to forego an Environmental Impact Assessment despite project size and location sensitivity, choosing to ignore the cumulative impact of this large development on area ecology, wildlife and traditional users.

Approving yet another luxury resort in the Rocky Mountains may offer the region some economic benefits but at the same time will eliminate the opportunity for a long-term, responsible and low-impact development in one of Alberta’s last pristine wilderness areas, accessible to all. If this project is approved, further unsuitable development in the area is bound to follow.

Action Steps:
Interested / affected parties are encouraged to participate in person at the hearing, which will take place at the county offices in Rocky Mountain House, May 4th (and possibly 5th). The hearing has been scheduled to commence at 9 a.m. at 4340 - 47th Avenue.
If you cannot attend in person, please make a written submission to Clearwater County, stating your concerns about this type and size of development. These can be addressed to: Mr Brian Irmen, Secretary SDAB, County of Clearwater, Box 550, Rocky Mountain House, Alberta, T4T 1A4. Tel. 1 403 845 4444. Fax. 1 403 845 7330.
E-mail birmen@county.clearwater.ab.ca

Info:
This action alert is initiated by ALERT, the Alberta League for Environmentally Responsible Tourism. For more information, contact Alan Ernst at (403) 721-2117, Martha Kostuch (403) 845-4667 or the Alberta Wilderness Association at (403) 283-2025.

1) Montane habitat, rare in Alberta, is characterized by dry, open forests located in a few larger valleys along the Eastern Slopes of the Rocky Mountains. It is found between the boreal forests of the foothills and the sub-alpine zone of the mountains. These areas are critical for wildlife foraging, migration and over-wintering, providing refuge to many park animals in the winter months. Most of our montane valleys such as the Yellowhead corridor and the Banff-Bow Valley corridor have been heavily impacted by transportation, urban and tourism development.

2) Photos below show the location of the proposed resort along Abraham Lake. The birds-eye view gives an impression of the extent of the development, which will go from the bottom right hand corner of the photo all the way to the small bay seen in the centre of the picture. The development seen along Highway 11 is the existing David Thompson Resort and campground. The lakes and marshland on this side of the road are the Whitegoat Lakes, an area classified as environmentally significant by the province.



The second photo shows the ridge overlooking the Cline River estuary, which is the site of the main resort development.

Ambient Air Quality Strategy for the United Kingdom
Review by Martha Kostuch
November 1, 2005

Basis for their guidelines/objectives

For the purposes of this strategy:
• standards are the concentration of pollutants in the atmosphere which can broadly be taken to achieve a certain level of environmental quality. The standards are based on assessment of the effects of each pollutant on human health including the effects on sensitive subgroups; and
• objectives are policy targets generally expressed as maximum ambient concentration to be achieved, either without exception or with a permitted number of exceedences within a specified timescale.

UK sets standards for minimum or zero risk levels of pollutants purely based on scientific and medical evidence on the effects on health, or, in the appropriate context, on the wider environment. However, when they set objectives, they also consider economic efficiency, practicability, technical feasibility and timescales.

The Expert Panel on Air Quality Standards (EPAQS) consists of independent experts appointed for their medical and scientific expertise. EPAQS reviewed the published and peer reviewed evidence available in order to provide the Government (U.K.) with recommendations for air quality standards.

The UK Government is using the EPAQS recommendations as the standards on which objectives will generally be based. However, EU limit values are generally derived from WHO guideline values. In cases where a national objective is derived from the EU limit value, it is the WHO guideline value rather that the relevant EPAQS recommendation that forms the basis of the objective.

Sulphur Dioxide EPAQS recommended standards accepted by the UK Government: 100 ppb (266 ug/m3) 15-minute mean (1995 EPAQS report).

Sulphur Dioxide WHO air quality guidelines (1994/95 revision): 500 mg/m3 (188ppb) – ten-minute mean, 125 mg/m3 (47 ppb) – 24-hour mean, 50 mg/m3 (19 ppb) – annual mean. [Note: The report says mg but I believe it should be micrograms. I don’t have the microgram key on my computer so I am using “u” for microgram.]

Sulphur Dioxide EU Air Quality Daughter Directive limit values for the protection of health: 350 mg/m3 one hour mean not to be exceeded more than 24 times a year, 154 mg/m3 24 hour mean not to be exceeded more than 3 times a year.

U.K. Sulphur Dioxide Objectives for protecting human health to be included in Regulations for the purposes of Local Air Quality Management: 350 ug/m3 (132 ppb) one hour mean not to be exceeded more than 24 times a year, 125 ug/m3 (47 ppb) 24 hour mean not to be exceeded more than 3 times a year, 266 ug/m3 (100 ppb) 15 minute mean not to be exceeded more than 35 times a year.

The effects of sulphur dioxide on sensitive subjects occurs almost immediately at the start of exposure. In their 1995 report EPAQS recommended an air quality standard of 100 ppb measured over a 15-minute averaging period. This recommendation is intended to reduce the exposure of the population, including individuals who may be particularly susceptible, to levels of sulphur dioxide at which harmful effects are unlikely to occur. EPAQS acknowledged that an averaging time of just a few minutes might be desirable but concluded that a 15 minute averaging time with a standard of 100 ppb represented an acceptable compromise between desirability and practicability.

Who identified sulphur dioxide as having significant adverse ecological effects in concentrations below those known to have a direct impact on human health. Drawing on work within UNECE, WHO set guidelines to protect vegetation and ecosystems from the ecological effects of air pollution.

The first Air Quality Daughter Directive sets European limit values for sulphur dioxide to protect vegetation and ecosystems from the ecological effects of air pollution.

Although declining emissions over recent years have reduced the importance of sulphur dioxide as a phytotoxic pollutant, it still plays a role in damage to ecosystems. This is particularly significant in combination with other stresses such as cold. Potential effects include the degradation of chlorophyll, reduced photosynthesis, raised respiration rates and changes in protein metabolism.

The UK Government decided to adopt the approach taken in the Air Quality Daughter Directive. There are two objectives for sulphur dioxide to protect ecosystems, both with a concentration of 20ug/m3 (8 ppb) but different averaging periods. 20 ug/m3 (8ppb) is the critical level for the protection of forests and natural vegetation. As certain plants are more susceptible to sulphur dioxide in low temperatures, it is important to achieve the limit value over the winter months. It is therefore to be achieved as both an annual objective and a winter average (October 1 to March 31).

Consideration of co pollutants and other contributing factors

The possibility that pollutants may interact creating additive or even synergistic effects was reviewed in 1996 by the UK Department of Health’s Advisory Group on the Medial Aspects of Air Pollution Incidents. The group concluded that there is no evidence for synergistic effects and that the evidence available suggests the effects of mixtures are additive.

UK took into account the likely feasibility and practicability of measures to move towards the recommended standards and the extent to which it is reasonable to expect these measures to lead to the standards being achieved. It is sometimes appropriate to have a permitted number of exceedences for an objective derived from a standard with a short averaging time. This allows for the situation where it is not practical to expect 100% compliance with the given concentration value because for example there may be uncontrollable natural sources or adverse weather conditions affecting levels, there are social or cultural causes such as bonfires on Guy Fawkes’ Night, or abatement measures would be disproportionately expensive.

Critical assessments and rational for objective

Strategy objective – The provisional objective for sulphur dioxide in the 1997 Air Quality Strategy was 100 ppb as a 15-minute mean measured as the 99.9th percentile in a calendar year (35 exceedances from 35,040 measurements) to be achieved by the end of 2005.

The following were considered in setting the objective:

Air Quality Daughter Directive
Acidification Strategy
Current and future air quality
Mapping and forecasting
Modeling work
Assessment of costs and benefits
U.K.’s legal obligation to achieve the Air Quality Daughter Directive Limit

The Air Quality Daughter Directive’s limit values are less stringent than the 1997 Strategy objective which was derived from the level recommended by EPAQS. The Government therefore retained the objective of 100 ppb as a 15-minute mean not to be exceeded more than 35 times a year. The Government was conscious of the medical evidence that the effects of sulphur dioxide appear almost immediately at the start of exposure which led EPAQS to recommend a 15-minute averaging time for sulphur dioxide.

Review of Sulphur Recovery Guidelines
Submission by Martha Kostuch
March 18, 2001

I am making the following recommendations for sulphur recovery at grandfathered sour gas plants. My recommendations are a combination of the Advisory Committee’s recommendations and the Staff Report.

1. All sulphur going through gas plants that are above the 7.5% decline line after five years (or any time after five years) would need to be processed at IL 88-13 (fully degrandfathered).

2. Alternative 1: All sulphur above the 1999 average sulphur inlet (baseline) would require processing at IL 88-13. There would be no limit on increasing the sulphur inlet (up to the maximum licensed inlet capacity).

Alternative 2: All sulphur above the 7.5 % decline line during the first five years would require processing at IL 88-13. Again, there would be no limit on increasing the sulphur inlet (up to the maximum licensed inlet capacity).

3. Alternative 1: Credits would be earned for each tonne of sulphur recovered above the licensed recovery level for sulphur processed through the plant below the baseline level.

Alternative 2: Credits would be earned for each tonne of sulphur recovered above the licensed recovery level for sulphur recovered above the licensed recovery level for sulphur processed through the plant that was below the 7.5 % decline line during the first five years (and possibly longer for plants that do not exceed the decline line after five years but that may exceed the decline line at some later time).

4. The credits could be applied to meet the requirement to process sulphur at IL 88-13 (to degrandfather the gas). That includes sulphur processed above the baseline (alternative 1) or above the decline line (alternative 2) during the first five years and sulphur being processed in plants that require full degrandfathering (exceed the decline line anytime after five years).

Rationale for these recommendations:

I support full degrandfathering of all sulphur going through plants exceeding the 7.5% decline line after five years as recommended by the staff report. However, adding a credit system will encourage companies to make early reductions in sulphur emissions. It will also reduce the potential for plant proliferation. Also, companies will be less likely to drop their sulphur inlet to just below the step so that they would not have to increase their sulphur recovery level.

The credit system provides an incentive to companies to do better than their legal requirements. The willingness of government to provide incentives for good performance is an important message to send to industry in general.

Alternative 1 would be simpler to administer but alternative 2 would result in less sulphur being emitted to the air.

The use of the credit system has the potential to result in significant reductions in sulphur emissions during the first five years over using the system recommended by the staff. Even after ten years, the total emissions are less using the credit system.

I ran some scenarios for the Husky Ram River Sour Gas Plant using alternative 1. (The emissions reductions would be even greater using alternative 2.)

The credit system would potentially result in up to 60,225 less tonnes of sulphur being emitted during the first five years than implementing the staff recommendations. (The staff recommendations would allow for a 25 % increase over baseline {and the baseline might be even higher than the 1999 baseline} with the potential for the gas to be processed at the licensed recovery level). Even after ten years, there would potentially have been 50,370 tonnes less sulphur emitted using the credit system.

5. If royalty reductions are provided to assist with the capital cost of facility upgrades, the royalty reductions should be applied retroactively to all plants that have degrandfathered during the last two years. Where gas is processed through a degrandfathered plant owned by another company, there should be a mechanism for the company that owns the plant to receive at least a portion of the royalty reduction.

Martha Kostuch
Box 1288
Rocky Mountain House
Alberta T4T 1A9
January 24, 2005

Stephen Smith
Alberta Energy and Utilities Applications
640 – 5th Avenue SW
Calgary, Alberta T2P 3 G4
Fax: 403-297-4117


Subject: Shell Tay River Ricinw 02-06 Well Tie-in and Pipeline Project

I am objecting to Shell’s application to install surface facilities at the well site (03-05-37-10 W5M), lay a sour gas pipeline from the well site to the Ram River Gas Plant and lay a fuel gas pipeline from the Ram River Gas Plant to the well site for the following reasons:

According to Shell’s own media release dated December 8, 2004, this is a major natural gas discovery which they estimate could contain between 500 billion to 800 billion cubic feet of raw gas and contains 35 per cent of hydrogen sulphide. Shell states in the same media release that this is one of the largest gas discoveries in Western Canada in recent years.

The EUB has a mandate to make decisions that are in the public interest. In order for the EUB to determine what is in the public interest regarding the gathering and processing of this major discovery, one of the largest in Western Canada in recent years, the EUB and the public must have the opportunity to review and consider the options for processing this gas.

The EUB and the public must also have information about the environmental, social and economic impacts of gathering and processing this major discovery and what can be done to minimize the negative impacts.

Shell made a commitment to consult the public regarding the options for processing this gas. Approval of this application would make that consultation meaningless.

It is not in the public interest to process gas from the Tay well without considering what is the best option for processing the gas and what must be done to minimize any negative impacts associated with the gathering and processing of the gas.

In addition to this application not being in the public interest at this time, I am assisting a resident who does not feel secure in her own home because of the effects that sour gas emissions including emissions from the Ram River Gas Plant have had on her and her son’s health.

Background:

Emissions from sour gas plants, in particular the Ram River and Strachan Gas Plants, was one of the main reasons I got active in protecting the environment. As a veterinarian, I observed significant impacts on the health of animals that I determined resulted primarily from sulphur dioxide emissions from sour gas plants. For more than 25 years, I have worked to reduce emissions from sour gas plants in Alberta and in particular from the Ram River and Strachan Plants.

In the early 1980’s, I intervened and was granted a hearing when the companies made applications to expand the amount of gas they were putting through the two gas plants. As a result of my intervention, the emissions from both plants were reduced substantially even though their throughput increased.

I have been involved in two reviews of the sulphur recovery requirements in Alberta.

I was involved in establishing the tiered requirements for sulphur dioxide emissions that are part of Alberta Environment’s license for the Ram River Gas Plant. I recently reviewed Husky’s application for relicensing of the Ram River Gas Plant by Alberta Environment.

I meet routinely with Husky to review their environmental performance at the Ram River Gas Plant.

I often climb Baseline Mountain. On one of my hikes up Baseline Mountain, I identified dead and dying trees. This led Husky to conduct a study of forest decline on Baseline Mountain.

To my knowledge, no member of the public has been more involved than I have in the operations of the sour gas industry in this area and in particular with the Ram River Gas Plant.

Sincerely,

(Original Signed)

cc: Shell

Submission to be exchanged among the parties - Case #3891

Brief for the December 19, 2007 Oral Inquiry on My Appeal of Alberta Energy’s Denial of My Request for a Fee Waiver

Table of Contents

A. Summary of My Arguments
B. Supporting Documents and Other Useful Information
C. Views Re: “In Camera”

A. Summary of my Arguments

1. Section 93(3.1) of the Freedom of Information and Protection of Privacy Act states “An applicant may, in writing, request that the head of a public body excuse the applicant from paying all or part of a fee for services under subsection (1).”

Section 93(4) states “The head of a public body may excuse the applicant from paying all or part of a fee if, in the opinion of the head, (b) the record relates to a matter of public interest, including the environment or public health or safety.”

Section 93(4.1) states “If an applicant has, under subsection (3.1), requested the head of a public body to excuse the applicant from paying all or part of a fee, the head must give written notice of the head’s decision to grant or refuse the request to the applicant within 30 days after receiving the request.”

Section 93(5) states “If the head of a public body refuses an applicant’s request under subsection (3.1), the notice referred to in subsection 4.2) must state that the applicant may ask for a review under Part 5.”

I therefore have the legal right to request a review of Alberta Energy’s decision to deny my request for a fee waiver.

2. The information that I am requesting is clearly in the public interest.

Oil sands growth is one of the major drivers in Alberta’s economy and oilsands development has, and will continue to have for some time, major economic, social and environmental impacts for Alberta’s citizens and its businesses, communities and local governments. Records related to strategies, public consultations, the government’s vision in relation to oil sands development and royalties fall directly in line with the Information Commissioner’s public interest criteria.

On December 15, 2006, the Premier issued Mandate Letters to his new Ministers. Two of the priorities the Premier identified directly relate to the public importance of oilsands development.

• One of the priorities for the Minister of Energy is to “[d]evelop a comprehensive energy strategy for the development of Alberta’s renewable and non-renewable energy sources and for the conservation of energy use”.
• One of the priorities for the Minister of Finance is to “[c]onduct a public review to ensure Albertans are receiving a ffair share fom energy development through royalties, taxes and fees”.

These statements clearly illustrate the current government’s major priorities. The government’s major priorities should be based on what is in the public interest.

The Oil Sands Consultation website discusses the process for consulting the public regarding social, economic, environmental and Fist Nations/Metis issues related to oil sands development. Clearly the Government considered these issues to be important enough to establish a process to consult the public on these issues.

Alberta’s oil sands comprise one of the world’s two largest sources of bitumen and cover a total of nearly 140,200 square kilometers and the mineable area covers 37 contiguous townships. Three of Canada’s largest oil producers have embarked on oil sands projects.

3. Other members of the public will benefit from the disclosure of these records. Many members of the public have expressed concern about oil sands development. The public concerns include the royalty structure, the draft MOSS and the consultations on oil sands.

4. The records requested will contribute to public understanding of the royalty regime, consultation processes related to oil sands development and the environmental, social and economic strategies, policies, visions and programs for oil sands development.

5. The records will contribute to the public debate about these very important issues.

6. The records will be useful in understanding issues which the government has a policy of insuring are publicly understood.

7. I have a very good history of disseminating information to others including the general public. I refer you to Order 99-015 of the Alberta Information and Privacy Commissioner.

These records will enable the public to better understand the basis for the existing royalty regime, the basis for the government’s position re: changing the royalty regime, and the rational for the draft MOSS.

8. Disclosure will enable the public to better understand the decisions the government has made and will make regarding oil sands development and royalty rates.

9. Access has been given to similar records at no cost. Again I refer you to Order 99-015. I was also given a fee waiver for my August 11, 2003 request for records pertaining to the Abraham Glacier Wellness Resort.

10. I have excluded from my request any information that has been made public.

11. The information I have requested does not relate to a conflict between the government and myself.

12. The Public Body should have anticipated the need for the public to have the requested records in a timely manner. The information I have requested deals with the development of a publicly owned resource. Oil sands development has and will continue to have significant environmental, social and economic impacts of concern to the public.

13. I have worked with the public body to clarify and narrow my request.

14. The Waiver of the Fee that I have requested would not shift an unreasonable burden of the cost from me to the public body. I have helped the Public Body (Alberta Energy) and the Alberta Government in general carry out its responsibilities and I do all of my environmental work as a volunteer.

15. I am not motivated by commercial or other private interests.


In summary, the records I have requested relate to the development of a publicly owned resource that has had and continues to have major impacts on the environment, society and the economy. This is a matter of public interest.

B. Supporting Documentation

1. Commissioner’s Inquiry Decision: Order 99-015.

2. My Request for Access to Information.

3. August 24, 2006 letter from Alberta Energy clarifying my request.

4. August 25, 2006 letter from Alberta Energy further clarifying my request.

5. September 5, 2006 letter from Alberta Energy acknowledging my amended request.

6. September 14, 2006 letter from Alberta Energy outlining the time frame for my continuing request, the fee estimates and information about how to request a fee waiver.

7. October 5, 2006 letter from Alberta Energy regarding the time frame for my continuing request.

8. October 20, 2006 letter from Alberta Energy correcting and adding to the information provided in their October 5, 2006 letter.

9. October 20, 2006 email from Lily Anderson, Alberta Energy, responding to my email to her of the same date.

10. October 27, 2006 letter from Alberta Energy denying my request for a review.

11. My November 23, 2006 letter to the Information Commissioner appealing Alberta Energy’s decision to deny my request for a fee waiver.

C. Views re: “In Camera”

I request that a copy of my submission be provided to Alberta Energy but not until the Commissioner has received Alberta Energy’s submission.

It is my hope that a copy of Alberta Energy’s submission will be provided to me prior to the oral inquiry.

I am also requesting that the oral inquiry not be held “in camera”. The questions of whether the information that I have requested is in the public interest and whether my request for a fee waiver should be granted are important “public interest” matters and therefore the inquiry should be open to the public.

Prairie Acid Rain Coalition
Media Release
Environmental Activist urges Government to Adopt Oil Sands Recommendations

July 26, 2007

Yesterday, the Government of Alberta released the Report and Recommendations of the Multistakeholder Committee (MSC) and Panel. See:
http://www.oilsandsconsultations.gov.ab.ca/Final_Report_TOC.html

The MSC reached consensus on 96 recommendations. Some examples of the consensus recommendations to achieve the vision of “Ensures a Healthy Environment” are:

• Create and implement comprehensive regional resource and environmental planning and management systems for the Oil Sands Area and for regions impacted by existing and proposed upgraders.
• Work with neighboring jurisdictions and the federal government to ensure cumulative assessment and management of transboundary issues.
• Require comprehensive reclamation and mitigation plans from the onset of development that include milestones. Establish penalties to be enforced if operators fail to meet identified milestones.

“It is my expectation that the government will implement all of the consensus recommendations as quickly as possible,” said Martha Kostuch, Chair of the Prairie Acid Rain Coalition and a member of the MSC.

Unfortunately, the MSC and Panel were not able to reach consensus on 26 recommendations. Most of the recommendations they were unable to reach agreement on relate to protection of the environment.

A few of the many important recommendations the MSC and Panel did not reach consensus on are:

• Implement interim precautionary based environmental and emission thresholds, guidelines and frameworks based on the best currently available information.
• Set greenhouse gas targets that will cap emissions for the oil sands industry and lead to reductions consistent with Canada’s international agreements.
• Establish a limit on the cumulative amount of land that can be disturbed at any one time in each of the oil sands areas.

One of the important non-consensus recommendations we did not reach agreement on related to becoming economic leaders is:

• In collaboration with the Federal Government, reform the fiscal regime for oil sands to ensure that a minimum of 60 % of net value of the resource is returned to the Federal and Provincial Governments through the combined tax and royalty regimes.

Perhaps the most important recommendation that the MSC and Panel did not reach agreement on is:

• Declare a moratorium on new oil sands development (no new leases, no new approvals) until environmental limits have been identified and infrastructure and labour concerns have been addressed.

“Of all the issues raised by the public, the uncontrolled pace of oil sands development was most often identified as being the main cause of environmental, social and economic problems related to oil sands development,” said Martha Kostuch, Panel Member.

“Stop.” “Slow Down.” Take a time out to make sure we do things right.” “What’s the rush?’ “These are the comments we heard frequently when we toured the province,” said Martha Kostuch. “The majority of the people who made submissions to the oil sands panel asked that oil sands development be slowed down. The only MSC recommendation that addresses the pace of oil sands development is the recommendation calling for a moratorium on new oil sands development.”

“I urge the Government of Alberta to implement the twenty three non-consensus recommendations which, as the panel member representing the environmental non-government organizations, I supported,” said Martha Kostuch. “The implementation of these recommendations in addition to the consensus recommendations will make Alberta a leader in achieving the agreed upon visions for oil sands development.”

Objectives for Managing Oldgrowth Forests

• Identify Oldgrowth forests we want to manage as Oldgrowth. Recognize Oldgrowth as a value that needs to be identified and managed for.
• Provide opportunity for new Oldgrowth forests to develop over the long term.

• Identify and agree with the attributes that define Oldgrowth forests.
• Identify characteristics that make Oldgrowth stands valuable.

• Attempt to achieve a more desirable balance between environmental, social and economic values.
• Find a balance that meets the needs of all the users (not limited to humans) of Oldgrowth forests.
• Manage for ecological uniqueness.

• Maintain enough variety of ages, species and ecoclassifications throughout the landscape so natural processes can occur.
• Maintain an appropriate level of age classes including Oldgrowth to satisfy the full range of values. What an appropriate level is needs to be discussed and agreed upon.
• Need a range of Oldgrowth forest sizes.

• Explore and recognize the role of Oldgrowth in protecting water quality and quantity.

• Achieve age class distributions and ranges consistent with ecological processes found in the subregion.
• Try to reach agreement on criteria for when natural processes are allowed to occur and when human interference is allowed in identified and agreed upon stands.
• Discuss and try to reach agreement on how harvesting could be done, how regeneration could be done and when human interference is allowed in identified and agreed upon stands.

• Review provincial forest policy to ensure the value of Oldgrowth forests is recognized.
• Amend ground rules to be consistent with provincial policy.
• Delete from the AAC landbase forests that are valuable for Oldgrowth attributes that have been identified and agreed should be managed as Oldgrowth forests.
• Start with AVI to identify Oldgrowth forest stands.
• Research and monitor the impacts of harvesting Oldgrowth on waterhed protection.
• Do more work to determine natural fire regimes.

Martha Kostuch, Vice-President
Friends of the Oldman River
Box 1288
Rocky Mountain House
Alberta T4T 1A9

Cliff Wallis, President
Friends of the Oldman River
615 Deer Croft Way SE
Calgary, Alberta T2J5V4


December 14, 2007

Commissioner for the Environment and Sustainable Development
240 Sparks Street
Ottawa, Ontario
K1A 0G6
petitions@oag-bvg.gc.ca

Petition
Dear Commissioner:

Before CEAA, the Canadian Environmental Assessment Act, came into effect, The Department of Fisheries and Oceans (DFO) was issuing over 10,000 authorizations a year under the Fisheries Act. Ever since CEAA came into effect, DFO has been doing everything possible to circumvent CEAA and avoid the requirement to do environmental assessments of projects that impact fish habitat.

Two of the unlawful mechanisms DFO is using to avoid doing the required environmental assessments are Letters of Advice and Statements of Operation. According to their 2006-2007 Annual Report to Parliament, DFO received 7,245 referrals but issued only 435 authorizations. During the same year, DFO issued Letters of Advice on 4,728 projects and advice under Operational Statements on 303 projects.

The following excerpts come from DFO’s website:

Operational Statements and Letters of Advice

Operational Statements

OVERVIEW OF OPERATIONAL STATEMENTS
As part of the "Streamlining Referrals" element of the Environmental Process Modernization Plan (EPMP), a series of Operational Statements (OS) has been developed to streamline the Habitat Management Program's (HMP) regulatory review of low risk activities. The OS outline measures and conditions for avoiding the harmful alteration, disruption or destruction (HADD) to fish habitat and thus be in compliance with subsection 35(1) of the Fisheries Act.

Proponents are not required to submit their proposal for review by Fisheries and Oceans Canada (DFO) when they incorporate the measures and conditions outlined in the OS into their plans. However, you are asked to complete the
Notification Form, and send it to the local DFO office in your area.

The Operational Statements (OS) were developed by HMP and were adapted in each DFO Region to complement existing Provincial and Territorial legislation and standards and specific environmental conditions. The OS also reflect input from federal, provincial and territorial regulatory partners and stakeholders (e.g., industry, resource users, etc.).

Thirteen Operational Statements are currently in use and an additional five were released in August 2006. These Statements include:

1. Aquatic Vegetation Removal
2. Beach Creation
3. Beaver Dam Removal
4. Bridge Maintenance
5. Clear-Span Bridge
6. Culvert Maintenance
7. Directional Drilling
8. Dock Construction
9. Ice Bridges
10. Isolated Pond Construction
11. Overhead Line Construction
12. Routine Maintenance Dredging
13. Underwater Cables
14. Beach Maintenance (Released August 2006)
15. Punch and Bore Crossing (Released August 2006)
16. Log Salvage (Released August 2006)
17. Maintenance of Riparian Vegetation in Rights-of-Way (Released August 2006)
18. Moorings (Released August 2006)


Letters of Advice

DFO even provides a Practitioners Guide for Writing Letters Used in Fisheries Act Reviews.

Practitioners review referrals to assess whether any of the proposed works or undertakings in the proposed plan will contravene subsection 35(1) of the Fisheries Act. DFO will advise the proponent of how to avoid any negative effects to fish habitat. This is done by providing additional fish habitat protection measures or by requesting redesign or relocation of those works or undertakings that are of concern.

1. What legislation and/or regulations give DFO the authority to issue Letters of Advice?

2. What legislation and/or regulations give DFO the authority to issue Operational Statements?

The purpose of the Canadian Environmental Assessment Act (CEAA) includes the following:
a) to ensure that projects are considered in a careful and precautionary manner before federal authorities take action in connection with them, in order to ensure that such projects do not cause significant adverse environmental effects;

( b) to encourage responsible authorities to take actions that promote sustainable development and thereby achieve or maintain a healthy environment and a healthy economy;

( b.1) to ensure that responsible authorities carry out their responsibilities in a coordinated manner with a view to eliminating unnecessary duplication in the environmental assessment process;

( b.3) to promote communication and cooperation between responsible authorities and Aboriginal peoples with respect to environmental assessment;

( d) to ensure that there be opportunities for timely and meaningful public participation throughout the environmental assessment process.

3. CEAA has mechanisms (screenings, exemption list, and class screenings) to reduce the burden of conducting environmental assessments of projects which have little or no environmental impact. Has DFO used these mechanisms? If not, why not? Does the issuing of Letters of Advice and Operational Statements comply with the purpose of CEAA? Did DFO obtain Parliamentary approval to use Letters of Advice and Statements of Operation? If not, why not?

4. Do some of the Letters of Advice actually authorize Harmful Alteration Disruption and Destruction (HADD) of fisheries habitat? If so, is DFO encouraging the commission of an offense?

5. Have any Letter of Advice lead to HADD? What studies has DFO done to determine the impacts on HADD of projects which were constructed following the receipt of Letters of Advice?

6. Do Operational Statements enable HADD to occur? If so, are companies who operate under Operational Statements in violation of the Fisheries Act? And if so, is DFO encouraging the commission of an offense?

7. Does DFO monitor or require the monitoring and reporting of the impacts of the activities that take place under Letters of Advice? If so, what has that monitoring shown? Is fish habitat being protected? Does DFO make that monitoring information public? If DFO does not require monitoring to be done, why not?

8. Does DFO monitor or require the monitoring and reporting of the impacts of the activities that take place under Operational Statements? If so, what has that monitoring shown? Is fish habitat being protected? Does DFO make that monitoring information public? If DFO does not require monitoring to be done, why not?

9. Does DFO have a process in place to assess and monitor the cumulative effects of the projects carried out under Letters of Advice and Operational Statements. If so, what is the legislative or regulatory basis for the process? Please provide the details of the process DFO uses to assess, monitor and report the cumulative effects. If DFO does not have such a process in place, why not?

10. How does DFO ensure that the advice that is provided in the Letters of Advice is followed? How does DFO ensure that Operational Statements are followed?

11. Has DFO considered implementing fees for reviewing projects that may have an impact on fish habitat? If so, please provide details. If not, why not?

12. Does DFO take enforcement action if Letters of Advice and Operational Statements are not followed? Has DFO ever taken any enforcement action on projects that have proceeded under Letters of Advice and/or Operational Statements? If so, how many? What were the results? What enforcement action can be taken by DFO if a project follows a Letter of Advice or an Operational Statement and still causes HADD?

We look forward to your response to this petition.

Sincerely,

Martha Kostuch and Cliff Wallis