On November 30, 2012 the federal government denied approval for the EnCana Shallow Gas Infill Development Project in the Suffield National Wildlife Area (the “Project”), due to the likelihood of significant adverse environmental effects.
The federal environmental assessment (“EA”) for this Project was first commenced on October 26, 2005. The Joint Review Panel’s (“JRP”) report, issued on January 27, 2009, recommended that the Project not proceed until the critical habitat had been finalized for the Ord’s kangaroo rat and the Sprague’s pipit, as well as for three at risk plant species. The JRP found that this recommendation was justified because allowing further development to occur before the critical habitat was designated may have destroy some of this critical habitat, the consequences of which would have “far outweighed” the consequences to EnCana of a temporary delay to the Project, given Environment Canada’s evidence at the hearing that the critical habitat would likely be finalized within 24 months. (The identification of critical habitat in fact took much longer – final recovery strategies identifying critical habitat for each of these five species were not released until November 30, 2012 the same day as the federal government’s denial of the Project).
After the 2009 JRP report was issued, no further steps occurred in the Project’s EA process until timelines were established under the new Canadian Environmental Assessment Act, 2012 (“CEAA 2012”) setting a December 3, 2012 deadline for the federal government’s decision statement for this Project.
The federal government’s Decision Statement, the first one issued under CEAA 2012, provides little in the way of reasons for its denial of the proposed Project. It indicates simply that, in accordance with section 52 of CEAA 2012, the Minister of the Environment has concluded, after taking into account the JRP’s report and the implementation of any mitigation measures that he considered appropriate, that the Project is “likely to cause significant adverse environmental effects” on areas of the environment within federal jurisdiction (as set out in section 5(1) CEAA 2012). The Decision Statement adds that the Cabinet has decided that these significant adverse environmental effects that the Project is likely to cause are not justified in the circumstances. The areas of the environment within federal jurisdiction set out in CEAA 2012 include fish and fish habitat under the Fisheries Act, aquatic species under the Species At Risk Act, migratory birds, federal lands, trans-boundary environmental effects, and changes to the environment that may affect aboriginal peoples.
Because of this Decision Statement, under CEAA 2012 EnCana (now Cenovus) is prohibited from doing anything in connection with the Project that may cause environmental effects on any areas of the environment under federal jurisdiction.