Friday, September 3, 2010

Shale gas in Québec: The legal provisions hindering the industry


Le Devoir continues its fantastic job on the issue of shale gas development in Québec with an article (in French) by Antoine Robitaille on ties between the industry and the government.

According to the article, representatives for the industry with personal or previous professional relations to members of the cabinet have been mandated with lobbying in favour of shale gas development. Most relevant from a legal perspective, the Québec Oil and Gas Association (QOGA) has been mandated to push for the amendment of a couple of provisions in order to have Québec recognised as a jurisdiction that can welcome shale gas development. As appears from the Québec registry of lobbyists, the industry strives for the modification 2 specific provisions, namely section 22 of the Environment Quality Act (EQA) and section 246 of the Act respecting Land use planning and development (ARLUPD).

Section 22 of the EQA is an obvious hindrance to open access gas extraction as it prohibits unless authorised the operation of an industry, the carrying on of an activity or the use of an industrial process if it seems likely that this will result in an emission, deposit or discharge of contaminants into the environment or a change in the quality of the environment. It appears highly likely that a watering down of the prohibition contained in section 22 EQA would result from an amendment to the Regulation respecting the application of the Environment Quality Act (RAEQA) rather than from a legislative amendment to the EQA. Sections 1 to 6 RAEQA determine the extent of the prohibition contained in section 22 EQA. For example, section 1(2) RAEQA already exempts the staking of a claim and geophysical, geological or geochemical surveys authorized under the Mining Act from the application of section 22 EQA. Interestingly, the industry's desire to modify the scope of section 22 EQA might lead one to suspect that hydraulic fracturing does indeed pollute. This is in contradiction to the industry's official discourse.

Section 246 ARLUPD establishes the paramountcy of the mining regime over the land use and development framework managed at the municipal level. It states that no provision of the ARLUPD or other planning instrument and municipal regulation developed under the ARLUDP has the effect of preventing the staking or designation on a map of a claim, or exploration or search for or the development or exploration of mineral substances or underground reservoirs, carried on in accordance with the Mining Act. This provision has been a bone of contention between municipalities, the mining industry and the government for more than a decade, notably in northern mining regions where municipal sources for drinking water are often dependent on groundwater. Presumably, the QOGA desires to expand the reach of section 246 ARLUPD to include exploitation.

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