Future Energy

Australia is Recognizing Aboriginals in its Constitution ... I Think

Source: Thriving in the Desert blog

With repatriation of our Constitution in 1982, Canada took the step of ensuring recognition of Aboriginal rights.  With Section 35 of the Constitution Act, the country provided constitutional protection to the existing aboriginal and treaty rights. 

35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

(2) In this Act, "Aboriginal Peoples of Canada" includes the Indian, Inuit and Métis peoples of Canada.

(3) For greater certainty, in subsection (1) "treaty rights" includes rights that now exist by way of land claims agreements or may be so acquired.

(4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.

From an energy development point of view, Aboriginal recognition was and is significant because of the string of court cases that followed, establishing an Aboriginal role in the development of natural resources.  In particular, a series of landmark court cases have established the responsibility of the Crown to "consult" with Aboriginal peoples and, where appropriate, accommodate Aboriginal rights or interests when considering development proposals. (A position paper by Weyerhaeuser does a particularly good job of articulating the issues and ways of addressing.)

In practical terms, the Crown's responsibility is frequently effectively handed-off to industry and others proposing to develop resources and rarely does it seem to be done well.  Evolving understandings of what constitutes consultation and how to consult have been huge factors in the complication of regulatory processes for approving projects.

Now Australia seems to be stumbling towards similar accommodation of aboriginal peoples rights and interests (See Coalition to put Aboriginal Recognition to Referendum, August 10^th). 

I say stumbling because, in 2007 John Howard's government committed to holding a referendum on whether the preamble to the Australian Constitution should be changed to explicitly recognize aboriginals.   The promise was then reiterated by Kevin Rudd in 2008. 

Now as a national election approaches, the current Labour government under Julia Gillard has suggested that it would form an expert panel to build support for the constitutional recognition of indigenous people.  And, needless to say, the conservative Coalition thinks it has a better idea.

As indigenous people across remote Australia began casting their votes in mobile polling booths for the federal election on August 21, the Coalition's indigenous affairs spokesman, Nigel Scullion, said there was no need for another committee and he would guarantee a timeline for constitutional recognition to be delivered to Australia's first people.

"We are not only committed to it, we certainly aren't going to flick this very important matter to an expert panel," he said.

"There's been a lot of conversation with the wider community about it. I haven't met anybody who doesn't think it should be reflected in our Constitution and it is down to words and there's not a great deal of angst in the community about the words."

Its hard to see the difference between the two positions beyond a knee-jerk bias against "committees".  Both say they are going to referendum, with Labour suggesting a need to build support among voters, presumably to ensure the issue doesn't blow up in their faces (i.e. get rejected by Australians). 

I wish them luck as they proceed down this path.  Australia has done a lot of interesting work developing innovative regulation and reducing regulatory barriers to development.  I would hope to see some lessons for Canada to come out of this.

Too Many Oil Spills

Source: solveclimate.com

In April (through July), it was BP's Macondo well in the Gulf of Mexico.  Last week, Enbridge's pipeline failed releasing one million gallons of crude into the Kalamazoo River in Michigan.  And in his blog at Solveclimate.com, David Sassoon provides a photolog of the Chinese oil spill at the Yellow Sea port-city of Dalian (see Bare Hands Clean-Up of a Horrible Oil Spill, July 29^th).

These are certainly spills that have captured the horror of press and public across much of the world.  However, a recent report by the Wildlife Federation of America makes the case that as devastating as this small number of spills might be, they are only the tip of the ice-berg.  Bradford Plumer writing in the Vine Blog (The New Republic) (see Oil Spills Everywhere, July 29^th) identified the report - Assault on America: A Decade of Petroleum Company Disaster, Pollution and Profit in which the National Wildlife Federation takes a strong stand.  In fact stronger than I would have expected from this type of NGO.

Major oil spills are really only a small part of the real story. From 2000 to 2010, the oil and gas industry accounted for hundreds of deaths, explosions, fires, seeps, and spills as well as habitat and wildlife destruction in the United States. These disasters demonstrate a pattern of feeding the addiction to oil leaving in their wake sacrifice zones that affect communities, local economies, and our landscapes.

The report provides a Map detailing thousands of petroleum company accidents, spills and other incidents (explosions, fires, etc.) in the U.S. between 2000 and 2010.  The report also highlights five or six of the more significant incidents each year. 

Finally, NWF provides a list of recommendations for ending the industry's history of spills, including:

• eliminate the cap on liability for damages caused by oil and gas disasters
• remove exemptions from the Clean Water and Safe Drinking Water Acts for oil and gas development
• implement new monitoring measures
• reform royalty structures for oil and gas leases on federal land
• pass comprehensive climate legislation in the U.S.

(In all NWF provides 13 recommendations.)

Working in the oil and gas industry obviously leaves me somewhat conflicted when I look at a report like this.  On the one hand there is no question that the incidents are unacceptable - in this regard, NWF does a good job of bringing them all together in a way that helps the industry to begin looking at the systemic causes.

On the other hand, an industry as all encompassing as the oil and gas sector and working as it does in some of the most inhospitable environments on earth will have incidents.  We and our economy are dependent on petroleum products; these incidents are the price of such dependency.  (To be fair to the NWF, many of their recommendations relate to decreasing the addiction.)

No doubt the long term answer is to reduce use of petroleum.

However, in the the short term there are several answers:

• Effective regulation that recognizes and acts on the key risks facing the industry.
• Better identification of the risks by the companies developing petroleum.
• Much better design and implementation of risk management systems to ensure that qualified people work safely to develop a volatile resource.
• Real senior management oversight of how their companies are managing the social, safety and environmental risks associated with their activities.

My understanding of NWF is that it is a relative moderate among the NGO's calling for the oil and gas sector to change.  And if they are concerned enough to use the language that appears in this report, its well worth paying attention to what they are saying and what they are trying to say.  So to close, over to NWF:

The total cost of the status quo —– in lives lost and health risks as well as social and environmental degradation —– is far too high. The sooner we move in the direction of meeting our energy needs through cleaner, safer sources.

The negative consequences for our health, our land, our climate and our children’s future are too great to continue to depend on oil to power our economy. Now is the time to put enact laws that favor and encourage safe and clean energy development and remove federal subsidies and tax advantages for oil and gas development. Now is the time to increase mitigation fees. Now is the time to create an oil and gas disaster fund paid for by industry. Now is the time to draw lines around environmentally sensitive areas that are made permanently off limits to oil and gas development.

And now is the time to cap global warming pollution from all oil and gas production —– including every aspect of the uncontrolled extraction and refining processes where methane, carbon dioxide, and other global warming gases are released into the air every day.

The BP Deepwater Horizon spill is truly a tragedy of our time. It should be used to take a closer and more comprehensive look at the full and continuing costs that the oil and gas industry continues to impose on society with its pollution, environmental degradation, habitat destruction, wildlife loss, worker and community endangerment, health effects consequences, and loss of life.

Off the Cliff: US Climate (Energy) Policy

The last few weeks have seen a slow train wreck as recent efforts to craft a climate/energy bill died in the U.S. Senate.  While the House was able to bring the bloated Waxman-Markey Bill forward a year ago, Senate Majority Leader Harry Reid last week announced that he would not even try to bring forward a compromise bill to the Senate.  And since mid-term elections in November appear likely to favour the Republicans, that seems to translate into a death sentence for any kind coherent climate or energy legislation in the U.S. for a while to come.

The list of commentators weighing in on who is to blame is long, including:

• Andrew Revkin - The Broken Senate and the Energy and Climate Challenge (Dot Earth)
• David Roberts - The Death of the Climate Bill (Grist Magazine)
• Robert Redford - Its the Opportunity, Stupid (The Huffington Post)
• Bradford Plumer - No Climate Bill? Then No Nukes, Either. (The Vine/The New Republic)
• Eileen Claussen - Climate Bill: Where to From Here? (Climate Compass/Pew Center)

(And probably many, many more than I have the time to read.)

However, among the most detailed and coherent assessments is one provided by Eric Pooley, a deputy-editor at Bloomberg Business Week, writing at Yale's environment 360 blog (see The Wreckage of Climate Bill, Some Clues for Moving Forward, July 28^th).  Mr. Pooley identified 6 culprits worthy of blame, including:

1. Professional climate deniers
2. Senate Republicans
3. Senate Democrats
4. The (Electric) Power Barons
5. The Green Group (environmental NGO's)
6. President Obama.

The list of who to blame doesn't leave to many out (although, interestingly, he identifies Representative Henry Waxman and House Speaker Nancy Pelosi as 'the only grown-ups in the room' during this debacle).

But perhaps the better part of Pooley's assessment is the consideration of options for Plan B - i.e. how does the U.S. move forward to address an issue (climate change) that is becoming ever more urgent.  Briefly, he looks to existing policy and institutions to lead the way - as they have indeed been doing for some years now. 

According to an analysis by the World Resources Institute, by leveraging existing authority over the next ten years the U.S. could reduce greenhouse gas emissions by 5 percent to 12 percent below 2005 levels. This is far short of the 17 percent reduction Obama promised in Copenhagen and nothing close to what needs to be done. But if we continue cutting emissions before asking voters to embrace a cap, we prove that cuts are both technologically feasible and economically sustainable. And we’ll be in a better position when the next legislative opportunity comes.

Until then, the climate war will be waged by cities, states, regional cap-and-trade programs, and, above all, the EPA, which early next year is set to begin regulating stationary sources of CO2 — power plants and large factories.

So in many respects, U.S. Climate policy and action may not look a lot different than it did under the leadership of George Bush.  Not exactly a ringing endorsement of President Obama's leadership on this file but a significantly better performance than we are seeing here in Canada where emissions steadily rise in the face of both federal and provincial unwillingness to act.

Pooley does point out the importance of the EPA going forward and the likelihood that Republican attacks will now shift to that agency. 

Tough new EPA rules for conventional pollutants will help, and so will new EPA carbon regulations. Perhaps these strict new regulations will refresh the power bosses’ appetite for a cap. But they have plenty of lawyers, and the long, ugly battles over implementation of EPA regulations could extend the current period of uncertainty by many years. Republicans (and some Democrats) will try to strip EPA of its authority over carbon, or at least delay implementation of its new rules.