On September 24, NOFRAC sent a letter to the Minister of Energy, Andrew Younger, with suggestions for points that the upcoming legislation should contain. The full text of the letter follows.
September 24, 2014
Honorable Andrew Younger
Department of Energy
RE: Proposed Hydraulic Fracturing Act
Dear Minister Younger:
We were pleased to learn that the government will enact legislation to prohibit hydraulic fracturing for shale gas and oil in Nova Scotia (“Act”).
We have identified several key points that we believe will ultimately determine the effectiveness and impact of the Act. As the government develops the proposed Act, we submit our thoughts on these issues for your consideration.
We hope that you will seriously consider the points we identify in drafting the proposed Act. We would appreciate receiving a copy of the proposed Act at the earliest possible moment, so that we may timely provide more specific suggestions that are textual in character.
We would like to clarify that it is our intention not to distribute this memo to anyone outside the NOFRAC steering committee until we have received a substantive response to this memo or you have had a reasonable opportunity to do so.
We would appreciate an opportunity to meet with you to discuss these recommendations and to have a better understanding of your intent for the Act.
Nova Scotia Fracking Resource and Action Coalition (NOFRAC)
Cc: Honorable Randy Delorey, By email, Fax
1. Definition of hydraulic fracturing
We suggest that the Province adopt either of these definitions of hydraulic fracturing in the new Act:
Importation of Hydraulic Fracturing Wastewater Prohibition Act, Section 2(a) defines hydraulic fracturing as follows:
“… the transmission of a carrier fluid to apply pressure and transport proppants to an underground geologic formation to create or enhance subsurface fractures and facilitate the release of any petroleum or natural gas, but does not include fracturing for the production of wells for potable water;”
The Council of Canadian Academies in its 2014 report, defines hydraulic fracturing as:
“Injecting fracturing fluids into the target formation at a force exceeding the parting pressure of the rock thus inducing a network of fractures through which oil or natural gas can flow to the wellbore.” P. 224
Applying these definitions to specific target formations, as below, would make the Act relatively easy to interpret and enforce.
Other jurisdictions have adopted similar definitions. See Appendix A
2. Target formations covered by the Act
We suggest that the Act should apply:
to hydraulic fracturing for gas, oil or other hydrocarbons in tight formations, including shale and sandstone.
to hydraulic fracturing for unconventional gas, oil or other hydrocarbons, excluding coal bed methane.
The Wheeler Review Final Report states:
“In this report, we define “the process of hydraulic fracturing” (from our mandate) as: “the process of hydraulic fracturing and its directly associated activities and technologies for the purpose of unconventional gas and oil development. Throughout the document we use the term “unconventional gas and oil development,” and by this we infer “by hydraulic fracturing.” … In particular cases, we use the term “hydraulic fracturing” to mean the specific technical activity.”
Further, in Section 1.3, What are “shale gas” and “shale oil,” the review final report specifies,
“Unconventional gas and oil are broad descriptors used for the more popular terms “shale gas” or “shale oil” (CCA, 2014).”
Thus, the issues addressed by the Wheeler Review are broadly applicable to hydraulic fracturing for unconventional gas and oil, and should not be narrowed to “shale gas” only.
Further, the existing moratorium applies to hydraulic fracturing in any unconventional formation, be it shale, tight sandstone, or coal. Public opposition to fracking has not distinguished between these target formations, nor did the Wheeler Review.
We suggest that, at a minimum, the Act should prohibit hydraulic fracturing for gas, oil or other hydrocarbons in shale and tight sand formations. The published scientific literature contains various definitions, but most often considers hydraulic fracturing in shale and tight sands as substantially the same, and groups the two formations together.   The potential risks and impacts are extremely similar in most of the areas addressed by the Wheeler review, including wastewater, fracking fluids, air emissions, risks to aquifers and surface waters, risks to health, surface build-out, industrialization of rural areas, community disruption, impacts on existing industries, and climate impacts. The amount of water used is often less in hydraulic fracturing in tight sands, but other issues and risks both above and below ground are essentially similar.
In Pictou and Cumberland, there appears to be potential for extraction of unconventional gas and oil from both shale and tight sandstone. Opposition to fracking has been strong in both of these areas of the province. Citizens in these areas participated in the review process and public meetings believing, as review documents stated, that the review was addressing hydraulic fracturing for all unconventional gas and oil. Both Cumberland County and the Town of Amherst have passed resolutions opposing hydraulic fracturing.
First Nations organizations have also indicated their opposition to hydraulic fracturing for unconventional gas and oil. As noted in Chapter 10 of the Wheeler Review, “Mi’kmaq representatives were clear that the Mi’kmaq are opposed to all activities associated with hydraulic fracturing taking place on their traditional lands, and their priority is to protect the lands and the waters.” 
Further, the Native Council of Nova Scotia informed the Review, “The community of Mi’kmaq/Aboriginal peoples continuing on traditional ancestral homelands organized as the Native Council of Nova Scotia oppose the practice of hydraulic fracturing for oil and gas in Nova Scotia.” 
There is nothing in these positions that implies that some types of hydraulic fracturing for unconventional gas are acceptable. These statements should have a significant bearing on the government’s approach to potentially excluding from the Act, some types of hydraulic fracturing for unconventional gas from this Act.
3. Legislated prohibition
We applaud the decision to adopt a legislated prohibition of hydraulic fracturing, so that this prohibition cannot be lifted without public notification and discussion and vote in the Legislature following established legislative procedures.
4. Municipal rights
We suggest that the Act should specifically acknowledge that municipalities have the right to enact bans or other restrictions on hydraulic fracturing for unconventional oil and gas.
This would be consistent with the concept of community consent recommended by the Wheeler review, and address some potential problems discussed in Chapter 9 of the panel’s report. If the Act or administrative moratorium is ever modified or lifted to authorize hydraulic fracturing, the authority of municipalities to prohibit and restrict hydraulic fracturing within their municipal boundaries would be preserved.
5. Continue the administrative moratorium on hydraulic fracturing for any unconventional oil and gas excluded from the Act.
We assume that government will not lift, and we strongly recommend that the government maintain, the present administrative moratorium on any uses of hydraulic fracturing for unconventional oil and gas that are excluded from the Act. The administrative moratorium should remain in place until the government addresses all of the issues raised by the Wheeler review as they apply to all categories of unconventional gas or oil excluded from the Act.
In particular, given the wide range of potential risks, the Wheeler report demonstrates there are significant shortfalls in current understanding of the risks of all forms of the unconventional oil and gas industry in a wide range of areas, including but not limited to a specific need for study of the unique geology and watersheds of the Province. Only after all relevant information is available and digested can the Province reasonably consider a framework of legislation and regulations.
In addition, mechanisms, funding and staff with necessary technical expertise and capacity for timely mitigation of impacts, would need to be put into place in a substantially different way than presently exists. As the Wheeler report points out, the existing regulations and Provincial permitting, monitoring and enforcement are not adequate to address the risks involved with the extraction of unconventional gas and oil, in fact or from the public’s perspective. Such a re-structuring would need to be transparent, involve significant public input and be science-based. Community consent, including First Nations consent, would have to be required.
Hydraulic fracturing is used in extraction of CBM in many, possibly most, projects, even if it is not used in the initial stages of development. Hydraulic fracturing for CBM [and in tight sands, as noted above] involves many of the same risks noted with fracking for any unconventional oil and gas, including wastewater leaks, spills, treatment and disposal issues, surface impacts, methane build up in wells and methane escape. If hydraulic fracturing is carried out close to the surface, risk of aquifer contamination increases. (CCA, Wheeler)
6. No consent, or implied consent, for hydraulic fracturing for CBM in Pictou County East Coast Energy project.
We want to clarify that, to the best of our knowledge, there is no existing public or First Nations consent for hydraulic fracturing for coal bed methane in the Pictou County project involving East Coast Energy. Public statements by you, as Minister, and by representatives of East Coast Energy assured the public that no hydraulic fracturing would be taking place.
First Nations consent to the East Coast Energy project was given on the basis that the project did not involve hydraulic fracturing, according to a Community Notice issued by the Mi’kmaq Rights Initiative. 
The formal and informal consents for initial drilling for coal bed methane in the New Glasgow area should not be mistaken for consent for hydraulic fracturing for coal bed methane.
7. Purpose of the Act
We recommend that the Act state that its purpose is to protect the environment and health of Nova Scotians, and to ensure that the natural resources of the province are to be stewarded in the best interests of Nova Scotians.
[No further text]
 Report of the Nova Scotia Independent Panel on Hydraulic Fracturing, 2014, p. 7.
 The scientific database developed by Physicians, Scientists and Engineers for Healthy Energy group’s shale and tight sands together, as indicated by the title, Shale and Tight Gas Literature Citation Database.
 In Environmental Public Health Dimensions of Shale and Tight Gas Development, Shonkoff et al note, “For this review, we focused primarily on literature directly pertinent to the human health dimensions of shale and tight gas development. “Tight gas” refers to natural gas produced from reservoir rocks of low permeability, such as shale or sandstone. Shale gas and other forms of tight gas are referred to as “unconventional” because of their atypical reservoirs, which require new production techniques.” Shonkoff notes that “most of the environmental public health–relevant scientific literature on modern oil and gas production has focused on the development of natural gas from shale formations”, but further note that their review covers, “where appropriate, scientific literature on other forms of unconventional or tight gas development that include the most prominent and relevant features of shale gas development, such as high-volume, horizontal hydraulic fracturing.”
 Report of the Nova Scotia Independent Panel on Hydraulic Fracturing, 2014, Chapter 10, p 283
 A Community Notice from the Mi’kmak Rights Initiative, October 30, 2013, states: “Chief Gerard Julian, Assembly Co-Chair and Lead Chief of the Energy Portfolio, along with KMKNO met with the Province today to ensure that:
a) this project does not include hydraulic fracturing;”
and further notes “We have been informed that this project does not involve fracking and that the Authority to Drill does not provide East Coast Energy with approval to produce gas, if gas is found.” Document appended.