Friday, April 15, 2016

If You Thought Fracking Had Been Banned In Nova Scotia, You'd Be Wrong

To listen to the Atlantic Institute of Market Studies, the leader of either opposition party, many people in the oil and gas industry, the Chronicle Herald, or even most environmentalists, you'd think that fracking for oil and gas in Nova Scotia is banned. It isn’t. Surprised? Don’t be. Unless you read the proclamations website you’d never know. Sure a bill passed back on November 14 2014, but it was never proclaimed. Without proclamation a bill isn’t law.

Screen Capture from Provincial Government Proclamation Status

I was Minister of Energy and introduced Bill 6 as an amendment to the Petroleum Resources Act. Its intent was to place a moratorium on high volume fracking until and unless there was a time issues such as the Duty to Consult with First Nations, resource mapping, disposal of fracking wastewater, and defining and achieving community consent had been achieved.

But that bill is not law. Further, best I can tell, none of those issues are even being discussed or worked on (at least not publicly as promised). I spoke to contacts in both the Department of Energy this morning and the Legislative Counsel's office, and indeed, the moratorium is NOT the law of the land. Bill 6 was based on a commitment of trust, and it hasn’t been followed through with.

The government might suggest the regulations are not done and so they have not proclaimed the bill. There are a many issues with this argument. First, even if that were true it still means the bill hasn’t been proclaimed and isn’t law. Second, it doesn’t appear the bill needs to have the regulations in place to be proclaimed, at least in part. Third, and perhaps most important, the regulations were supposed to be posted for 30 days of public comment in late January 2015. Nova Scotians are still waiting.

While I have to be careful not to cross the line of cabinet confidentiality, I can say that when I was minister I’d never have even brought the bill forward, or made a commitment about when regulations would be done without the support and agreement of staff, and without being fully confident that staff had presented 90% of what the regulations would entail. So you can guess there was little left to finish to have draft regulations out in time.

When I introduced the bill, I tabled definitions from other jurisdictions for High Volume Hydraulic Fracturing which were similar to what was to be proposed for regulations in Nova Scotia. There are a lot in scholarly articles and legislation (not none as some have tried to suggest) There was and remains no reason for the delay to bring forward regulations and no excuse not to have proclaimed the bill. Industry deserves the information. Environmental organizations deserve the information. Nova Scotians deserve the information.

Whether you agree with fracking or not, the fact the bill has not been proclaimed and regulations are over a year overdue should be of deep concern. Energy discussions have to be done on the basis of trust with all parties. Without a gun to the head. Challenges with projects such as pipelines and the Alton Gas project have resulted in part because of lack of open discussion sufficiently in advance of projects. Knowing this, it has to make you wonder what the current priorities are in the Department of Energy.

Despite claims by some that if Nova Scotia allowed fracking there would suddenly be lots of jobs and oil and gas would flow everywhere, that doesn’t seem likely. In the current economic climate exploration programs are being scaled back, onshore exploration in areas which have previously shown little success are not top priorities. Even the Wheeler Report commissioned by the province suggested that under best case scenario if gas was found, it would be decades for the industry to take hold. But that also makes it the right time to have the discussions with communities and all stakeholders to decide the future on these issues. It's the right time to address the requirements to meet the Duty to Consult with First Nations. It's the right time to determine what constitutes Community Consent. Communities deserve to know if we are even talking about something real. The Department of Energy promised to produce a detailed atlas and yet nothing has been heard. Many of the areas of interest for exploration conflict with significant and important agricultural areas (some of which could not be subject to fugitive air emissions). There is little agreement with stakeholders about how those conflicts would be resolved.

To date, something like 169 conventional and unconventional wells have been drilled in Nova Scotia, some of them fracked. All failed to find commercial quantities of oil and gas. The sole exception is East Coast Energy’s Coal Gas Methane project (which does not involve fracking) in the Stellarton area which is currently progressing. So maybe this is a debate about nothing, but it still means the province must follow through on it's commitments to both sides in this debate.

How can we ever expect industry, environmentalists, First Nations, and the many other stakeholders to work together if the commitments by government are not lived up to.

Bill 6 was a promise. It was a promise that regulations and proclamation would come quickly, and there would be a period of public comment. With over 60% of Nova Scotians against fracking and only about a quarter in favour at the time of the bill, it made sense to take the pressure out of the situation and step back, whether that ended up being permanently or just temporarily.

The resources (if they exist) belong to Nova Scotians so Nova Scotians need to make the decisions. Without even proclaiming the law, the trust that bill was based on, and one of the key elements of social license, has already been broken.

For those that want to frack the law isn’t the law at this point, and there seems to be no legal moratorium in place in Nova Scotia (it had been argued that the previous policy moratorium of the NDP was also not legally enforceable).