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Recent Developments on Contaminated Sites – Their Impact on Your Business Mary Jo Campbell, BLG 3
Kyoto Update and Greater Vancouver Regional District Air Quality Initiatives Jock Finlayson, Business Council of BC 4
An Overview of Recent Federal and Provincial Environmental Legislative and Regulatory Developments Deborah H. Overholt, BLG 5
Reaching Across Barricades: the Role of Public Affairs in the Defence of Environmental Claims Doug Horswill, Teck Cominco Metals Ltd. 6
Litigation Update: Where Are We Now? Graham Walker and Rick Williams, BLG 7
Environmental Law Group Member Biographies 8 Mary Jo Campbell M. Scott Kerwin William K. McNaughton Jason Z. Murray Deborah H. Overholt Douglas R. Sanders, P.Eng. Tracey L. Sandgathe G. Ross Switzer Graham Walker Carleigh A. Whitman Rick Williams
Guest Speaker’s Bios 9 Jock Finlayson, Business Council of BC Doug Horswill, Teck Cominco Metals Ltd
Borden Ladner Gervais LLP offers clients the services of a fully integrated national network of seasoned legal talent. The firm's track record is based on the expertise and commitment of more than 650 lawyers, intellectual property agents, and other professionals.
Working as a team, we represent a variety of regional, national, and multi-national corporations in a number of business sectors. We also represent public institutions such as colleges, universities, educational authorities, governments, governmental agencies, hospitals, and other health care facilities. In addition, business, trade, and charitable groups are among our clients.
At Borden Ladner Gervais, our clients have choice. They can engage a particular lawyer offering particular expertise or, for more complex transactions requiring a number of individuals or crossing several practice areas, they can engage a team of lawyers. While it may sound costly, this approach actually is sensitive to time and cost because it quickly and readily matches specific skills and experience with specific client needs.
To meet these needs, our team pushes boundaries and seeks innovative approaches. With leading work in emerging fields and a keen focus on evolving business priorities, we help clients master a rapidly changing world.
Accordingly, Borden Ladner Gervais is committed to the use of advanced technology. All members of the firm are linked by a network, which supports an array of information and project management software. The firm encourages and maintains direct electronic connections with its clients, ensuring our interactions are efficient and cost-effective.
We are in the business of finding the right answers. Daily, our Canadian and international clients make decisions based upon what we deliver: superior advice, strategic perspectives, and innovative business approaches - in the right place and at the right time. They value our dynamic, responsive partnerships based on personal relationships.
Clients also value our firm's national and international scope. More than 20 languages are spoken at our firm, and our experience is global in nature. We have acted in the resolution of international litigation and trade disputes; in international banking transactions (including sovereign risk lending); international insolvencies, liquidations and restructurings; international joint ventures, reorganizations and acquisitions; and international communications networks and contracts of many kinds.
At Borden Ladner Gervais, we are committed to teamwork, innovation, proactive strategies, and personal client service - all supported by advanced technology and delivered within a global context.
Borden Ladner Gervais LLP Firm Profile
Areas of Practice
Borden Ladner Gervais LLP serves its clients in all areas of a modern law practice. In addition, we offer the following specialized services:
Aboriginal Law Administrative, Regulatory
and Public Law Advertising and Sponsorship Appeal and Review Asia Pacific Group Aviation Banking Litigation Biotech and Pharmaceutical Broker Liability and
Compliance Business Advisory Group Business Immigration Class Actions Commercial Arbitration and
Alternative Dispute Resolution Commercial Lending Commercial Litigation Commercial Real Estate Commodity Tax Communications Law Competition and Marketing
Law Constitutional Law Construction and Engineering Construction, Surety, Fidelity
and Fraud Corporate Finance Corporate Governance Corporate Tax Defamation, Trade Libel and
Media Law Directors' and Officers’
Liability Education Law Electricity Markets Entertainment Law
Environmental Law Estate and Family Law
Litigation Expropriation Law Federal Court Financial Services Financial Services Regulatory
Group Forestry Law Franchise and Distribution
Law Fraud Law General Property and
Casualty Claims Government Relations Health Care Institutions and
Services (non-litigious) Health Law Hotel and Hospitality Information Technology Insolvency and Restructuring Insurance and Tort Liability Intellectual Property Agency Intellectual Property and
Technology Intellectual Property Litigation International Group International Infrastructure
Projects International Tax Law International Trade Law Investment Management Japan Group Labour and Employment Life and Disability Insurance Marine
Borden Ladner Gervais LLP Firm Profile
Areas of Practice (cont’d) Medical Liability and Health
Law Litigation Mergers and Acquisitions Municipal, Government and
Police Liability Municipal Law Not-for-Profit Oil and Gas Pensions Personal Injury and Accident Personal Tax and Estate
Planning Privacy and Access to
Information Private Company Product Liability
Professional (non-medical) Liability
Regulatory Law Securities and Capital
Markets Securities and Shareholders
Litigation Structured Finance and
Leasing Tax Tax Litigation Venture Capital Wealth Management
Firm History
Five firms, recognized in their communities for outstanding success and service, founded Borden Ladner Gervais. They were Howard, Mackie (Calgary), McMaster Gervais (Montréal), Scott & Aylen (Ottawa), Borden & Elliot (Toronto), and Ladner Downs (Vancouver).
Today, we are Borden Ladner Gervais LLP, one of Canada's largest and most respected national law firms. We are committed to the same tradition of excellence established by our founders.
Borden Ladner Gervais LLP – Calgary
The Calgary office began as Howard, Mackie, founded in 1888. As one of the largest legal firms in Western Canada, it has been closely associated with the growth of Calgary as an international business centre. Today, the firm plays a role in transactions generated by the city's dynamic business community on the local, national, continental, and global levels.
Borden Ladner Gervais LLP – Montréal
Our Montréal office incorporates the oldest continuous legal practice in Canada, founded in 1823. Today's fully bilingual office resulted from the 1998 merger of McMaster Meighen and Mackenzie Gervais. Together, their
Borden Ladner Gervais LLP Firm Profile
Firm History (cont’d)
history is interwoven with the maritime, industrial, financial, and economic development of Montréal, Québec and Canada. In the 19th century, the firm's lawyers helped bring about the formation of Canada's railways.
Borden Ladner Gervais LLP - Ottawa
The Ottawa firm of Scott & Aylen was founded in 1952, and merged with Borden & Elliot in 1999 to form Borden Ladner Gervais - Ottawa. Our Ottawa office is fully bilingual and one of the largest in the nation's capital. Borden Ladner Gervais - Ottawa pioneered a multi-disciplinary approach that puts lawyers together with patent and trade-mark agents under one roof. Borden Ladner Gervais - Ottawa ensures a full suite of legal and intellectual property services to clients in Canada and beyond.
Borden Ladner Gervais LLP - Toronto
The Toronto firm was founded as Borden & Elliot in 1936. It is one of Canada's most prominent full-service law offices, with one of the largest litigation practices in the country.
Borden Ladner Gervais LLP - Vancouver
The Vancouver firm of Ladner Downs was founded in 1911. Today, as Borden Ladner Gervais - Vancouver, we are present in significant transactions in every area of British Columbia and in every major sector of its economy. Borden Ladner Gervais - Vancouver is one of the pre-eminent law offices of Western Canada.
Our offices have a collective depth of experience that cannot be bought or assembled from scratch. This depth of wisdom is what clients look to when evaluating their potential for success. Ours is a track record that extends right across Canada, into the United States, and overseas.
For further information on our firm and our services, please visit our website at www.blgcanada.com.
Lawyers • Patent & Trade-mark Agents
Recent Developments in Contaminated Sites Law – The Impact
In force July 8, 2004 along with certain sections of Environmental Management Amendment Act, 2004(Bill 13)
Principal ChangesAmendment of definition of “contaminated site” based on contaminants exceeding prescribed numeric or risk-based standardsElimination of conditional certificates of compliance such that only certificates of compliance (with or without conditions). Review certificates with careNo regulatory reopener on change in standards
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Environmental Management Act (cont’d)
Principal Changes (cont’d)Continued expansion of role of “approved professionals” on Roster in recommending MWLAP issuance of approvals in principle (“AIPs”) and certificates of compliance. Purchasers and lenders should consider independent review of certificates/approvals with supporting reports. Only as good as the consultantMinister of MWLAP may issue regulations. Plus the director of MWLAP may issue interim standards valid for one year. Provides increased flexibility to MWLAP, but no grandfathering for remedial work currently under way
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Environmental Management Act (cont’d)
Principal Changes (cont’d)Termination of AIPs and certificates where terms not complied with or fees outstanding
Site ProfilesMWLAP expects to release revised proposal for public comment over Summer, with changes targeted for Fall 2005
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Contaminated Sites Regulation
Amended July 8, 2004Mainly housekeeping changes to reflect terms and new section numbers of EMASediment standards – Schedule 9Nonscheduled toxic substances – Schedule 10Number of minor standard changes since July 8/04. Monitor. Expect to occur frequently, with no grandfathering
May 14/04 – Housekeeping changes to reflect federal Transportation of Dangerous Goods RegulationsJuly 8/04 – Re-named Hazardous Waste RegulationTogether with EMA, eliminates permits for storage, treatment and recycling of hazardous waste provided the Regulation is complied with2 year window to obtain order grandfathering existing permits
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Protocol 6
Must use approved professionals on RosterNo MWLAP or external review since November 2004Expanded to include remediation of part of site, remediation up to 5 years in length and application of certain background standardsApproved professional not permitted to approve risk assessments
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Approved Professionals (or LEPs)
New licenced environmental professional (“LEP”) system targeted to commence April 1, 2006Roster Steering Committee (“RSC”) recommendations for LEP system:1. Two types of LEPs (numeric and risk assessment specialists)2. Two types of review (self-review on lesser risk sites and
review of others’ work on higher risk sites)3. Performance assessment (audits) by RSC and MWLAP 4. Outstanding liability issues
Current significant bottleneck is risk assessment certificates. MWLAP indicates 4 to 6 months but many certificates taking more than 1 year
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Science Advisory Board
Revised proposal for screening level risk assessment 1 (“SRA 1”) expected for public comment Summer 2005Initial proposal for SRA 2 expected August 31, 2005Generic standards review – federal CCME deterrent
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Outstanding Policy Initiatives
High risk sitesLand Remediation FundReview of liability schemeAlternate dispute resolution mechanismsProvincial election is behind us. Extent of future changes will be affected by approach of new Minister
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Polluter Pays – Supreme Court of Canada
Upholding and broadly interpreting environmental legislation
BC HydroA responsible person for 9250 Oak Street, VancouverSubject to liability of one of its amalgamating companies, BC Electric Company despite special amalgamation legislationBC Electric supplier of coal tar from 1920 to 1957. Amalgamation 1965
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Polluter Pays – Supreme Court of Canada (cont’d)
Imperial Oil v. Quebec (Minister of Environment)Remediation order naming Imperial Oil valid despite sale, govt certified remediation and development of site by developerImperial Oil operations 1920 to 1973. Sale 1987. Order 1994
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Remediation Cost Recovery Actions
Workshop Holdings and CN v. ABC RecyclingSubsequent speaker will address what constitutes reasonable remediation costs and CN caseWorkshop Case:
1. Brass Foundry 1924 to 1941. Father of plaintiff landowner purchased site 1960. Remediation 1998
2. Remediation cost recovery not barred by 30 year ultimate limitation period. New civil cause of action arose in 1993 withnew environmental legislation
3. Broad interpretation of innocent purchaser exemption despite length of ownership and intervening uses
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Innocent Owners – Limited Options
2 BC EAB cases – Super Save case (BC Hydro, Rock Bay, Victoria) and Squamish Terminals case (by oldSquamish chlor-alkali plant). Multi-million $ cleanupsNeighbours do not have standing to challenge AIP. No evidence prejudicially affected by what in AIPs or remediation planMWLAP has discretion but not obligated to include conditions regarding off-site impacts. Legislative objective expeditious remediation of contaminated sitesAlternative avenues of recourse:
1. Remediate and sue for cleanup costs2. MWLAP right to require further remediation3. Negotiation of coordinated remediation
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Practical Options for Innocent Neighbours
Raise issues early with polluter, rostered professional, MWLAP, municipality and DFOActively respond to communicationsInsist on right to notice of migrating contamination under CSR. An offence not to provide noticeTrigger an audit of professionalCommon law damages (consequential damages for economic loss and diminution in value of property)Encourage MWLAP orderPractical incentive on polluter to deal with off-sites to avoid remediating twice and re-contamination of its site following cleanup
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Other Cases
Imperial Oil Limited v. City of Vancouver – City of Vancouver has no authority to require off-site soil remediation agreements as a condition of development permitsAppeal set for June 2005City still requiring on rezonings and subdivisions
Recent Developments in Contaminated Sites Law – The Impact on Your Business Recent Developments in Contaminated Sites Law – The Impact on Your Business
Mary Jo Campbell Mary Jo Campbell
June 1, 2005June 1, 2005
I INTRODUCTION I INTRODUCTION
In 2004, the provincial government implemented many of its initiatives announced in
2003. This paper will review legislation and policy initiatives dealing with contaminated
sites brought into force over the last year since our last client seminar in May 2004.
Cases of interest over the last year will also be described. The impact of these
developments on business will be highlighted.
In 2004, the provincial government implemented many of its initiatives announced in
2003. This paper will review legislation and policy initiatives dealing with contaminated
sites brought into force over the last year since our last client seminar in May 2004.
Cases of interest over the last year will also be described. The impact of these
developments on business will be highlighted.
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II OVERVIEW OF CURRENT LEGISLATIVE INITIATIVES II OVERVIEW OF CURRENT LEGISLATIVE INITIATIVES
Canada’s Kyoto Gap and Federal ProgramsCanada’s Kyoto Gap and Federal Programs
Plan Purports to Meet Kyoto TargetPlan Purports to Meet Kyoto TargetPlan Element Reduction from BAU mT
Climate Fund 75 – 115Partnership Fund 55 – 85
LFE targets36
(45 - 9 for Tech Credits)Auto agreement 5.3Renewables (May need more $) 151-tonne challenge 5Greener government 1Other programs 45Sinks under business as usual 0 - 20Total 237.3 – 327.3
Federal Climate Change Plan: GeneralFederal Climate Change Plan: General• Compared to the preceding (2002) plan, there is less
focus on short-term targets and quick GHG reductions
• Climate Fund will allow federal government to buy domestic and foreign reductions. Partnership Fund created to promote reductions jointly with the provinces
• Large Final Emitter targets, plus auto sector agreement
• Various other programs, e.g.: One-tonne challenge, increased support for renewable energy, ‘greening government’, carbon sinks, R&D expenditures
• Unrealistic estimates of what can be achieved» the new plan is likely to leave a residual gap of around
150 mT per year by end of the 2008-10 period
Federal Climate Change SpendingFederal Climate Change Spending• A minimum of $10 billion, possibly much more, over next several
years on climate change related initiatives. Selected elements:» Climate Fund – a ‘minimum of $1 billion’ to support
projects/actions that reduce domestic GHGs» Partnership Fund -- $2-3 billion for joint projects with provinces to
reduce emissions. Focus on technological advances and infrastructure investments. Requires MOUs with provinces
» Greenhouse Gas Technology Investment Fund – large final emitters can invest in this to help offset part of their emission reduction obligations (up to total of 9 Mt.). Should not involve a drain on the public purse
» Budget 2005 allocates more than $700 million over several years for housing retrofits plus support for wind power, small hydro, biomass, landfill gas, and other renewable energy
» An unknown amount to make up Canada’s GHG reduction “deficit” under Kyoto by purchasing credits on foreign carbon exchanges – at least $1 billion, probably much more
Climate Change Plan: LFEsClimate Change Plan: LFEs• No credit for early action. But lower targets vs 2002 plan• Previous $15 per tonne price cap commitment will be
honoured (pp. 40-42) – but for how many years?• LFE targets – overall reduction of 45 mT from revised
business as usual projection, of which LFEs can get credit for up to 9 mT for contributions to Technology Investment Fund. Regulation under CEPA. Other points:» 15% on other covered emissions, but no more than
12% overall» no reduction on fixed process emissions» flexibility re: compliance options» best available technology economically achievable
(BATEA) targets for new facilities – but who will determine what qualifies as BATEA?
LFE ImplementationLFE Implementation• ‘Working assumption’ is regulation under CEPA Part 5
» will consult on how CEPA can be used
» objective to draft regulations by end of 2005
• Equivalency agreements with provinces that want them, Ottawa hopes to co-opt provinces and offload regulatory responsibility (but will retain control over LFE targets)
• Alberta working in parallel on its own regulations
• BC still pondering. Other provinces?
• Uncertainty re final LFE implementation details due to unsettled political situation in Ottawa
Project Green Project Green -- IncentivesIncentivesTax incentives …• CCA rate climbs to 50% from 30% for investments in
“highly efficient” co-generation equipment and renewable generation equipment in class 43.1 of Income Tax Act(e.g., wind turbines, 50 MW or less hydro facilities, solar heating equipment)
• Class 43.1 to be extended to cover heat distribution assets of energy systems (e.g., pipelines), where the heat energy is produced with eligible co-gen equipment
• Qualifying start-up costs of projects using selected energy efficient technologies to be eligible for immediate write-off as Canadian Renewable and Conservation Expenses (can also be flowed through to investors as part of flow-through share subscription)
Project Green Project Green -- IncentivesIncentivesRenewable incentives …• Increased funding for 2001 Wind Power Production
Incentive and for Renewable Power Production Incentive (latter applies to small hydro, biomass, tidal power, etc.).
• Budget 2005 commits $920 million over 15 years (!) for wind power incentives. Incentive payment of 1 cent per kw hour of production for first 10 years of operation for eligible projects commenced before 2010
• For other renewable power production, Budget 2005 commits $886 million over 15 years (!). Payment of 1 cent per kw hour of production for first 10 years of operation for projects commissioned between March 31, 2006 and April 1, 2011
Climate Change Plan: What Lies AheadClimate Change Plan: What Lies Ahead• Conclude implementation details re: GHG emission
reductions by LFEs
• Clarify nature of provinces’ role and participation. Ottawa is seeking MOUs with provinces and has $ to offer
• Prepare for upcoming international meetings -- July 2005 G8 and December 2005 COP 11
• Monitor progress on moving toward Project Green targets for LFEs and other Plan elements
• Determine Canadian targets and policy options post 2012
BC Climate Change Plan BC Climate Change Plan –– Key ThemesKey Themes• Released in December 2004. Accepts general view that
human-induced climate change is occurring• Does not propose a specific provincial GHG emissions
reduction target, nor significant new regulations, taxes or fees
• But the Plan does pledge to retain BC’s status as Canada’s third lowest per capita GHG emitter
• Risk management focus – work to reduce emissions but also need to adapt to climate change impacts
• Emphasizes cooperation/collaboration with Ottawa to minimize regulatory complexity, support economic revitalization, protect BC’s interests, and ensure fair treatment of the province
• Asserts BC ownership of carbon sinks
BC Climate Change Plan BC Climate Change Plan ---- ActionsActions• 40 specific actions – some already under way, others planned
• Actions grouped under several headings:» Sustainable energy production/efficient use (e.g.,
implement 2002 BC Energy Plan; develop strategies for hydrogen and fuel cells and alternative energy)
» Efficient infrastructure – transportation, buildings + communities (e.g., incorporate climate change into transportation planning and investments; update minimum energy efficiency standards for equipment)
» Sustainable forest and carbon sink management (e.g., pine beetle mitigation; reduce agriculture emissions by 8%)
» Water management (e.g., implement Drought Action Plan)» Government leadership and outreach (e.g., retrofit
provincial buildings; use cleaner fuels in gov’t vehicles)
GVRD Air Quality Management Plan Update
GVRD Air Regulation GVRD Air Regulation ---- BackgroundBackground• Authority to manage air quality and pollution delegated to
GVRD by the BC government» GVRD the only region in the province with such
authority (some other regions want the same)
• GVRD adopted the first Air Quality Management Plan (AQMP) in 1994
• Main focus of first AQMP was common local air contaminants and other air pollutants (not greenhouse gas emissions)» nitrogen oxides, volatile organic compounds, sulphur
oxides, inhalable fine particulate matter (PM10), fine particulate matter (PM2.5), carbon monoxide
Revised Air Quality Management PlanRevised Air Quality Management Plan• In July 2001, GVRD Board instructed staff to review the
AQMP “within the context of social, economic and environmental sustainability as a fundamental objective”
• Determined that the 1994 Plan required updating to:» incorporate sustainability principles» take into account new science on air quality and health» modernize ambient air quality objectives» consider updated emissions forecasts» revise priority actions» “reflect increased concern about climate change”
• Two workshops held in Spring 2004
• Feb 2005, GVRD released “Greater Vancouver’s Air Strategy: Proposals for the Air Quality Management Plan”
Air Quality in the Region is Good Air Quality in the Region is Good and Getting Betterand Getting Better
• Studies of metropolitan areas reveal that Greater Vancouver has among the best overall air quality of any urban region in Canada/US
• One recent study found that Greater Vancouver enjoys the cleanest particulate ambient air quality among 90 North American cities (Vedal et al., Environmental Health Perspectives, January 2003)
• Most indicators of local/regional air quality have improved appreciably over time
Air Quality in the Region is Good Air Quality in the Region is Good and Getting Betterand Getting Better
• Dr. John Blatherwick, Chief Medical Officer, Vancouver-Coastal Health Region:
“At every opportunity I get, I explain that we have outstanding air quality in the Lower Mainland and are in no danger of becoming ‘another Los Angeles’.”
• Unfortunately, this positive picture and message tends to be downplayed by the GVRD
Source: Estimates derived from GVRD 2003 Sustainability Report.
Emissions of common air contaminants and smog-forming pollutants have fallen in the region since the mid 1980sApproximate 38% decrease in overall air emissions from 1985 to 2000Note: only a single “air quality advisory” was issued by the GVRD in 2003
Regional Air Emissions Trends, 1985Regional Air Emissions Trends, 1985--20032003
GVRD Air Quality ForecastGVRD Air Quality Forecast• GVRD predicts local air quality will deteriorate because of
growth in population and vehicles, rising marine emissions, and other factors. Draft AQMP forecasts increased emissions of SOX, PM10, PM2.5, diesel PM, ammonia, and greenhouse gases (p. 11)
• But there are reasons to anticipate further improvements in air quality…
» improvements in fuel quality, e.g. low sulphur diesel» advances in auto technology and fuel efficiency» initiatives to control marine emissions» lifecycle replacement of vehicles, stationary equipment
(boilers/heaters), and other elements of the region’s industrial/commercial capital stock
• Goal 1: Minimize the Risk to Public Health from Air Pollution» Reduce regional ambient levels of PM10, PM2.5 and
ground level ozone» Reduce emissions of PM10, PM2.5 and ozone
precursors» “Improve local air quality”
• Goal 2: Improve Visibility» Reduce regional ambient PM2.5 levels» Reduce emissions of PM2.5 and its precursors
• Goal 3: Minimize GVRD’s Contribution to Climate Change» Reduce regional greenhouse gas emissions
GVRD Proposed Clean Air Strategy: GVRD Proposed Clean Air Strategy: Goals and Directions for ActionGoals and Directions for Action
Ambient Air StandardsAmbient Air Standards• Federal and Provincial Environment Ministers have
recommended Canada Wide Standards (CWS) for ambient air quality. GVRD meets CWS standards today
• Draft AQMP proposes ambient air standards that are more stringent than CWS
• Adoption of these very strict standards will lead to undue public alarm regarding air quality and potentially unnecessary stack emission standards
• Standards applied in Whatcom county are significantly less restrictive than GVRD recommended standards
• Adopting more stringent local ambient standards will likely improve air quality by exporting GVRD facilities/jobs to other parts of the airshed
Problems with AQMP ProcessProblems with AQMP Process• Inconsistent with GVRD’s purported commitment to ‘sustainable
development’ because of failure to incorporate economic, competitiveness, and social considerations» AQMP is actually a classic example of “silo” policy-making» this reflects, in part, lack of GVRD mandate to address economic
and business issues• Reliance on worst-case forecasts of future emissions• Propensity to selectively cherry-pick ambient standards/objectives,
without accounting for context or asking whether other jurisdictions have attained their own standards» why should ‘good air’ be defined as one thing in GVRD and
something different in adjacent regions or the rest of BC?• Concern that GVRD approach to ‘continuous improvement’ will not take
account of the capital planning cycle for industrial and commercial facilities
• Because it is a long-term global issue and is being dealt with by senior levels of government, GVRD should not focus on climate change orseek to regulate industrial/transportation emissions of GHGs
Appendix
Source: Natural Resources Canada. Note: Total B.C. emissions 67.5 million tonnes CO2 equivalent
Distribution of BC Greenhouse Gas Distribution of BC Greenhouse Gas Emissions, 2002Emissions, 2002
Agriculture, Waste &
Other13%
Transport36%
Other Industry
19%
Fossil Fuel Production & Pipelines
17%
Electricity2%
Residential & Commercial
13%
Source: Natural Resources Canada.
Greenhouse Gas Emissions Per Capita, Greenhouse Gas Emissions Per Capita, 20022002
0
20
40
60
80
BC AB SK MN ON PQ ATL PEI
tonnes CO2e per person
Source: Statistics Canada, May 2004.
Vancouver CMA ranks last among major Canadian urban areas in the growth of average employment incomes. One factor behind this poor performance is the loss of significant numbers of relatively high-paying jobs in manufacturing and other industry sectors.
Preliminary data for 2003 (released last week) shows that the Vancouver region’s poor relative and absolute performance continues.
Greater Vancouver Greater Vancouver –– A Very Weak A Very Weak Performer on Growth of IncomesPerformer on Growth of Incomes
-4%-2%0%2%4%6%8%
10%12%
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Change in Median Real Employment Income, 1997-2002Major Census Metropolitan Areas
Source: GVRD Draft Clean Air Strategy, February 4, 2005.
GVRD Management Levels and Proposed GVRD Ambient GVRD Management Levels and Proposed GVRD Ambient Air Quality Objectives (AQOs)Air Quality Objectives (AQOs)
The Integrated Pest Management Act, S.B.C. 2003, c. 58 (the “IPM Act”) which received Royal
Assent on October 23, 2003 was brought into effect on December 31, 2004 pursuant to B.C.
Reg. 599/2004. The Integrated Pest Management Regulation, B.C. Reg. 604/2004 (the “IPM Regulation”) also came into effect on December 31, 2004. Under the IPM Act, a person must
not use, handle, release, transport, store, dispose of or sell a pesticide in a manner that causes
or is likely to cause an unreasonable adverse effect or in any manner other than in accordance
with the IPM Act and associated regulations.
The IPM Act and IPM Regulation establish classes of pesticides and set out the requirements
for licences, certification, permits and pesticide use notices for each class of pesticide. The
classifications are based on the Federal Pest Control Products Act.
Recent Provincial and Federal Environmental By Deborah H. Overholt
A permit is required for all uses of certain types of pesticide products, for certain uses of
pesticide products such as aerial applications over urban or residential areas and to allow for
deviations from standards and requirements set out in the IPM Regulation.
A pest management plan must be prepared and a pesticide use notice confirmation must be
received before a person can proceed with certain specified pesticide uses including:
• management of vegetation on specified rights of way (e.g. railways, highways and public utilities) on public or private land and on specified industrial sites (e.g. landfills, dams, dykes, and airports) on public land, where more than 20 hectares per year is treated by a land manager;
• management of forest pests on more than 20 hectares per year of public land used for forestry;
• management of noxious weeds or invasive plants on more than 50 hectares per year of public land; and
• management of mosquitoes with a bacterial pesticide on more than one hectare per year of a water body and any other mosquito control of any size on public land.
A pesticide management plan must include integrated pest management considerations. The
IPM Act defines integrated pest management as a process for managing pest populations that
includes the following elements:
(a) planning and managing ecosystems to prevent organisms from becoming pests;
(b) identifying pest problems and potential pest problems;
(c) monitoring populations of pests and beneficial organisms, damage caused by pests and environmental conditions;
(d) using injury thresholds in making treatment decisions;
(e) suppressing pest populations to acceptable levels using strategies based on considerations of:
• biological, physical, cultural, mechanical, behavioural, and chemical controls in appropriate combinations, and
• environmental and human health protection; and
Recent Provincial and Federal Environmental By Deborah H. Overholt
no restriction on local governments establishing more onerous requirements than those set out
in a Cabinet directive.
On July 17, 2004, the Riparian Areas Regulation (B.C. Reg. 376/2004) (“RAR”) was introduced
pursuant to section 12 of the Fish Protection Act. The RAR repealed the former Streamside
Protection Regulation. The RAR came into effect on March 31, 2005, although many
municipalities have been granted an extension to June 30, 2005 (pursuant to a Ministerial Order
issued on March 31, 2005) to review and if necessary amend their bylaws to meet the
requirements of the RAR. Local governments that established streamside protection and
enhancement areas under the former Streamside Protection Regulation are deemed to have
met the requirements under the RAR.
Prohibition: Those local governments subject to the RAR are prohibited from approving or
allowing development to proceed in a riparian assessment area unless the development
proceeds in accordance with the requirements set out in the RAR.
Application: The RAR applies to the same geographic areas as the former Streamside
Protection Regulation: the Lower Mainland, the East Coast of Vancouver Island and the
Southern Interior.1
The RAR applies to residential, commercial and industrial activities or ancillary activities as
regulated by Part 26 of the Local Government Act and listed in the definition of "development"
found in section 1(1) of the RAR as follows:
• removal, alteration, disruption or destruction of vegetation;
• disturbance of soils;
• construction or erection of buildings and structures;
• creation of non-structural impervious or semi-impervious surfaces;
______________________ 1 More particularly the following regional districts and all municipalities within them: Capital, Central Okanogan,
Columbia-Shuswap, Comox-Strathcona, Cowichan Valley, Fraser Valley, Greater Vancouver (except the City of Vancouver), Nanaimo, North Okanogan, Okanogan-Similkameen, Powell River, Squamish-Lillooet, Sunshine Coast, Thompson-Nicola and the trust area under the Islands Trust Act, R.S.B.C. 1996, c.239.
Recent Provincial and Federal Environmental By Deborah H. Overholt
• construction of roads, trails, docks, wharves and bridges;
• provision and maintenance of sewer and water services;
• development of drainage systems;
• development of utility corridors; and
• subdivision, as defined by section 872 of the Local Government Act.
The RAR does not apply to agricultural, mining, hydroelectric or forestry-related uses or
institutional development.
The RAR applies to development in the "riparian assessment area" adjacent to "streams". The
definition of "stream" in section 1(1) of the Regulation is slightly more restrictive than the
definition of "stream" in the Water Act and includes: a watercourse (whether it usually contains
water or not); a pond, lake, river, creek or brook; and a ditch, spring or wetland that is connected
by surface flow to a watercourse, pond, lake, river, creek or brook that provides fish habitat.
The RAR does not apply to marine or estuarine shorelines.
The "riparian assessment area" for a "stream" is:
• the 30 m strip on both sides of the stream, measured from the high water mark;
• for a ravine less than 60 m wide, a strip on both sides of the stream, measured from the high water mark to a point that is 30 m beyond the top of the ravine bank; and
• for a ravine 60 m wide or greater, a strip on both sides of the stream, measured from the high water mark to a point that is 10 m beyond the top of the ravine bank.
The RAR does not apply to in-stream works. These works are governed by section 9 of the
provincial Water Act and section 35(2) of the federal Fisheries Act.
Authority to Proceed: Section 4(2) of the Regulation provides that the local government may
allow development to proceed in the riparian assessment area if either of the following
conditions are met:
Recent Provincial and Federal Environmental By Deborah H. Overholt
(1) Qualified Environmental Professional (“QEP”) Assessment: (a) a QEP carries out an assessment and: (i) certifies that they are qualified to conduct the assessment; (ii) certifies that the assessment methods set out in the schedule to the RAR have been followed; and (iii) provides their opinion that there will be no harmful alteration, destruction or disruption ("HADD") of the natural features, functions and conditions that support fish life processes in the riparian assessment area, or that there will be no HADD as long as the streamside protection and enhancement area (“SPEA”) identified in the report is protected from development and the measures identified in the report are taken to protect the SPEA; and (b) the local government is notified by MWLAP that MWLAP and DFO have been notified of the development proposal, and have been provided with a copy of the assessment report prepared by the QEP that meets conditions (i)-(iii); or
(2) DFO Authorization: if HADD cannot be avoided, an authorization is obtained for the development from the federal Department of Fisheries and Oceans (“DFO”) under section 35(2) of the federal Fisheries Act. The “Riparian Areas Regulation Implementation Guidebook” issued by MWLAP indicates that a section 35(2) authorization will only be issued if the applicant can demonstrate that compliance with the SPEA recommended by the QEP will cause undue hardship and the local government issues a letter of support for the application
QEPs: Pursuant to the definition contained in section 1 of the RAR, a QEP is an applied
scientist or technologist, acting alone or together with another QEP. He or she must be
registered and in good standing in British Columbia with an "appropriate professional
organization constituted under an Act", acting under that association's code of ethics and
subject to disciplinary action by that association. According to MWLAP, the applicable
professionals are professional biologists, geoscientists, foresters and agrologists. To be able to
certify that they are qualified to conduct the assessment methodology, the individual's area of
expertise must be recognized in the assessment methods as one that is acceptable for the
purpose of providing all or part of an assessment report in respect of the particular development
proposal that is being assessed. The individual is considered a QEP only for that portion of the
assessment that is within their area of expertise, as identified in the assessment methodology.
Assessment Options: The Schedule to the RAR provides two assessment options. A simple
assessment determines a SPEA width as set out in the Schedule to the RAR based on whether
or not the stream is fish-bearing, the nature of the stream flows and the status of streamside
vegetation. If the proposed development encroaches within the SPEAs determined based on a
simple assessment, a more detailed assessment will be required to determine a SPEA width
Recent Provincial and Federal Environmental By Deborah H. Overholt
Amendments to CEPA are not expected to be passed until 2008.
5. Transportation of Dangerous Goods Act Review
The Transportation of Dangerous Goods Act, 1992 is currently undergoing review. The review
commenced shortly after the September 11 attacks with a principal focus on security issues.
However, the review was subsequently expanded. Public consultation meetings were held in
2004. The government’s timetable suggests that amending legislation could be tabled in the fall
of 2005 with the proposed amendments coming into force in 2006. Potential amendments
include a requirement for approved security plans for all dangerous goods that require
emergency response assistance plans, immediate reporting of security breach, security
awareness training for employees and security clearance certificates of anyone handling
dangerous goods.
6. Fines and Penalties
On May 13, 2005, the Budget Implementation Act, 2004, No. 2, S.C. 2004, c. 19 received Royal
Assent. Section 16(1) of the Act amends the Income Tax Act to prohibit the deduction of fines
and penalties, other than prescribed fines and penalties, imposed after March 22, 2004.
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LITIGATION UPDATE:WHERE ARE WE NOW?
Graham Walker and Rick WilliamsBorden Ladner Gervais, LLP
June 1, 2005
VAN01: 2114645: v1
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Topics
Recent Cost Recovery ActionsChanges to Procedure in the Rules of CourtCompensation for Environmental Damage / HarmUpdate on Enforcement Cases
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Contaminated Sites Update: Cost Recovery Actions
Procedure under WMA / EMA settledAssessment of “reasonably incurred costs of remediation” previously unresolvedTwo recent decisions of BCSC provide direction
CN v. ABC Recycling (April 29, 2005)Workshop Holdings v. CAE (April 28, 2005)
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Workshop Holdings v. CAE
Resolved important procedural issuesFacts
Workshop sought to develop commercial property in Vancouverdiscovered copper and zinc contamination in the soilproperty historically operated by CAE as a brass foundryapplication for AIP from Ministrycompletion of remediation and commencement of litigation
Summary trial (at long last)
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Workshop Holdings v. CAE (cont’d)
Three key points:reasonable to remediate to developexercising business judgment will not be penalized30 year ultimate limitation period (if it applies) does not run until 1993 (?) at the earliest
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CN v. ABC Recycling
Most significant caseFacts
CN owned an 80 acre parcel in BurnabyABC was a neighbour at Area VABC operated a scrap metal recycling business on its propertyABC’s operations had trespassed onto CN’s property causing contamination of CN’s landsin 1999 and 2000, ABC voluntarily removed the trespassin 2000 CN decided to sell its landsCN undertook an environmental investigation which disclosed additional contamination
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CN v. ABC Recycling (cont’d)
CN worked with ABC to develop a remediation approach for the propertyCN required a COC from the Ministryremediation commenced but problems ensuedCN took over the remediation projectCN demanded that ABC compensate it for its cost of remediationlitigation was commenced to recover CN’s costs of remediation
Issueswere CN’s costs of remediation reasonably incurred?was CN entitled to recover its legal fees on an indemnity basis?
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CN v. ABC Recycling (cont’d)
Key points in decision:two-step approach to determine whether costs of remediation are reasonably incurred
did plaintiff act reasonably?are the costs objectively reasonable?
all circumstances are relevantburden of proof on the plaintiffexpert evidence is not requiredplaintiffs are entitled to adopt a “careful, cautious approach” in remediating contamination reasonable legal costs are recoverable on an indemnity basis
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CN v. ABC Recycling (cont’d)
Result and Conclusiona framework now exists to determine whether costs of remediation are the principal of polluter pays is enshrined in our legislationreasonably incurredthe barrier for smaller claims may be removedcost recovery actions are an effective and practical means of recovering costs of remediationplaintiffs must carefully consider proceeding through trial [apportionment of liability; settlement offers]defendants must consider meaningful offers to settle at an early stage
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Civil Litigation Changes
Civil Rule changes effective September 1, 2005
Small claims monetary jurisdiction will be raised from $10,000 to $25,000
A new simplified procedure will be introduced for most Supreme Court actions of $100,000 and less
Purpose is to “streamline procedures and reduce the cost and time required to take these cases to trial”
While the increase in small claims jurisdiction will take effect province wide, the new simplified procedure will be introduced as a two year pilot project in four supreme court registries (Vancouver, Victoria, Prince George and Nelson).
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Civil Litigation Changes (cont’d)
Highlights:limited discovery processearly exchange of witness lists and summaries of evidencerestrictions on interlocutory applicationsno jury trialsmandatory trial management conference
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Civil Litigation Changes (cont’d)
Issues of interest to contaminated sites litigation:
Use of jointly instructed experts:parties can agree or court can ordereach party provides instructions to the expertcosts are shared between the parties
Will the new procedure apply to contaminated sites cases given the CN v. ABC decision
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Compensation for Environmental Damage / Harm
Supreme Court of Canada Decision in British Columbia v. Canadian Forest Products Ltd.
Crown sought monetary compensation for environmental damage to public land
Facts:Forest fire 1992 damaged almost 1,500 hectares of forestFire was caused mainly by Canfor’s failure to ensure that a controlled burn had been properly extinguishedIncluded in the burn area were non-harvestable trees that the Crown had set aside for environmental reasons in sensitive areas
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Compensation for Environmental Damage / Harm (cont’d)
Findings:The Supreme Court of Canada refused to award the Crown monetary damages for environmental loss:
the Crown’s pleadings were insufficientthe Crown failed to lead any evidence to allow the trial judge to quantify an ecological or environmental loss
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Compensation for Environmental Damage / Harm (cont’d)
Significance:Leaves the door open for future claims provided the pleadings and evidence are sufficientScope of decision is quite broad. Arguably it captures all operations or activities that adversely affect Crown land
Examples:Oil spills and other damage to the marine environmentTrain wreckages and derailments resulting in damage to the environment (i.e. chlorine gas)
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Recent Environmental Prosecutions
The past year saw a continued decrease in the number of reported decisions on environmental prosecutions.
R. v. Canadian National RailwayDue diligence is alive and well
R. v. SappWhen investigators stop by it’s best to keep quiet
ABC admitted that the CN property was a “contaminated site”, that ABC was a “responsible
person”, that ABC caused the contamination, and that CN incurred “costs of remediation”. The
issues presented at trial were whether CN’s “costs of remediation” were “reasonably incurred”
and whether CN was entitled to recovery of its legal costs on an indemnity basis or a tariff basis
as set out in the Rules of Court.
Court’s Legal Costs Findings
With respect to the legal costs issue, CN sought to recover its actual legal costs associated with
seeking contribution from ABC. A significant portion of a plaintiff’s costs in any legal proceeding
is its legal costs. In a typical legal proceeding, the successful litigant is entitled to recover its
legal costs in accordance with a tariff contained in the Rules of Court (usually only 20% to 30%
of the legal costs actually incurred). A key finding in the CN decision is that a plaintiff who
incurs costs of remediation can recover all of its reasonable legal costs actually incurred in
seeking contribution from those responsible.
The significance of this decision cannot be overstated. Often, the spectre of legal costs act as a
barrier to a plaintiff wishing to pursue a claim for damages in court, particularly when the amount
of money involved is relatively small. The CN decision removes this barrier; those innocent
parties who incur costs remediating a contaminated site and are successful against actual
responsible parties will enjoy more than just a pyrrhic victory.
Court’s Approach to Determining Reasonably Incurred Costs
The legal costs, like all the costs of remediation, must be reasonably incurred. The CN decision
establishes the following factors a Court will consider in determining what are reasonably
incurred costs of remediation:
1. A Court will employ a two-step approach to determine whether costs are reasonably incurred. First, the Court will examine whether the plaintiff acted reasonably in remediating the contamination. Second, the Court will examine whether the costs are themselves objectively reasonable. The Court will look at various particular items of cost or expense incurred by the plaintiff to determine whether they are reasonable.
2. All of the circumstances of the case are relevant. The plaintiff can put forward evidence of costs not claimed in order to show that the costs claimed are
Litigation Update: Where Are We Now? By Graham Walker and Rick Williams
reasonable. Thus, the Court will look to what the plaintiff expended globally on remediating a contaminated site in order to determine whether the costs claimed are reasonable.
3. The burden is on the plaintiff to show that the plaintiff incurred reasonable costs. It is not enough to show that the plaintiff incurred costs and expect the defendant to show that the costs were unreasonable.
4. It is not necessary for the plaintiff to call expert evidence to prove that the costs incurred are reasonable. This can save parties the extra cost of hiring an expert in cases of minor contamination that proceed to trial.
5. Plaintiffs are entitled to adopt a careful, cautious approach in remediating contamination particularly when such an approach is the foundation of a successful application for compliance to the appropriate government ministry.
Result and Conclusion
In the result, CN recovered approximately 95% of its costs claimed from ABC as costs
reasonably incurred as well as its reasonable legal fees actually incurred through trial. The CN
decision establishes that a plaintiff can recover legal costs actually incurred in seeking
contribution from those responsible and provides a framework for determining whether the
plaintiff’s costs were reasonably incurred. The decision enshrines the principle of polluter pays.
The decision also ensures that a cost recovery action is an effective and practical means of
recovering costs of remediating a contaminated site.
The Workshop Holdings decision, released on April 28, 2005, provides some guidance to
remediators with respect to cost recovery actions and remediating contaminated sites.
Workshop owned property in Vancouver that it intended to develop commercially. In the
process of developing its property Workshop discovered copper and zinc contamination in the
soil. CAE had in the past operated a brass foundry on the property. Workshop retained an
environmental consultant and applied for an approval in principle from the Ministry. Following
completion of remediation, it commenced an action against CAE to recover its reasonable costs
of remediation.
The trial lasted one and a half days. At trial, the Court found CAE responsible and awarded
Workshop $105,500 of the $116,000 it had sought to recover, deducting only amounts for an
unrelated removal of a storage tank and sump pump and for soil that the Court determined
Workshop had to remove in any event. In the process of doing so, the Court rejected a number
of CAE’s arguments:
1. CAE argued that the costs incurred were unreasonable because only Workshop’s development of the property made the remediation necessary. The Court did not accept this argument and held that the WMA is designed to ensure that polluters pay the costs of remediation when the property is subsequently developed for other uses.
2. CAE argued that Workshop did not need the AIP but could have proceeded by way of independent remediation at a reduced cost. The Court found that Workshop had sound business reasons for proceeding in the manner that it did. Provided the course undertaken was reasonable, Workshop was not obliged to proceed with a particular course of remediation simply because it was the most cost-effective.
3. CAE argued that Workshop’s claim was barred by the 30-year ultimate limitation period. While not deciding whether the ultimate limitation period applied to cost recovery actions, the Court held it could not apply in this case because the legislative scheme was first created in 1993. As such, the cause of action arose less than 30 years before Workshop made the claim.
To summarize, three key points come out of the Workshop decision. First, it is reasonable for a
landowner to remediate property in order to develop it. Second, the Court will not penalize an
owner for exercising business judgment in remediating property provided the owner’s actions
and decisions are reasonable. Finally, the Court confirmed that if the 30-year ultimate limitation
Litigation Update: Where Are We Now? By Graham Walker and Rick Williams
JOCK A. FINLAYSON Jock Finlayson is Executive Vice President of Policy at the Business Council of British Columbia. The Business Council is a leading industry association representing approximately 200 large and mid-sized companies, drawn from all major sectors of the B.C. economy. Its corporate members and affiliated associations together account for one-quarter of all jobs in British Columbia. Mr. Finlayson directs the Business Council’s policy development and research on economic, fiscal, tax, regulatory, energy, and environmental issues of interest to the province’s business community. He also plays a key role in the Council’s activities in the areas of membership services, project development and management, media relations, and relationships with external organizations. Mr. Finlayson is a member of several advisory bodies established by the B.C. government, including the Economic Forecast Council to the Minister of Finance and the Degree Quality Assessment Board established by the Minister of Advanced Education. He serves on both the Expert Advisory Panel to the B.C. Progress Board and on the UBC President’s Community Advisory Council. A B.C. native, he returned to Vancouver in early 1994 after more than a dozen years in Ontario and the United States. During this period, he worked as a Senior Policy Analyst and then Vice President with the Business Council on National Issues (now the Canadian Council of Chief Executives) in Ottawa; served as a Senior Analyst with the Environics Research Group, a market research and public opinion polling firm based in Toronto; and gained experience with two Canadian consulting firms. . Mr. Finlayson is the author/co-author of two books and more than 30 published articles and book chapters. A frequent commentator on economic and other public affairs issues, he contributes a monthly column to Business-In-Vancouver, writes periodically for the Vancouver Sun and the Financial Post, and is a regular guest on several radio programs, including CBC Radio’s “B.C. Almanac”. Mr. Finlayson holds a Master’s degree from Yale University and undergraduate and M.A. degrees from UBC, as well as a Post-graduate Diploma in Economics from the University of London (U.K.) He is the Past President of both the Association of Professional Economists of B.C. and the Ottawa Economics Association.
Doug Horswill - BIO Doug Horswill is Senior Vice-President, Environment and Corporate Affairs at Teck Cominco Limited. Prior positions include Deputy Minister of Finance and Corporate Relations and Deputy Minister of Energy, Mines and Petroleum Resources in the Government of British Columbia. Before entering government he was employed at Utah International (BHP) and at INCO. Doug earned a Bachelor of Applied Science degree in Mineral Engineering, and a Master of Arts degree in Economics at the University of BC. He is Chairman of the Management Committee of the Red Dog Mine. He is a past chair of the Mining Association of BC; a Director and member of the Executive Committee of both the Mining Association of Canada and the Business Council for British Columbia; and Chair of the International Zinc Association Environmental Committee.
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