Proposed amendments to Nova Scotia’s proposed fracking ban

Bill 6 is the Government’s Bill on Hydraulic Fracturing. It will amend the Petroleum Resources Act to prohibit hydraulic fracturing in shale formations. The bill has been presented in the Legislature, and will go to Law Amendments very soon.

NOFRAC recommends the following changes be made to Bill 6:

  • Hydraulic fracturing should be defined in the Bill
  • Definition of hydraulic fracturing needs to be explicitly clear
  • Community consent must be defined and recognized in the Bill
  • Minister’s right to review the prohibition must be clearly defined
  • Testing and Research must be clearly defined and limited 

Read on for the full legal recommendations. To learn more about how you can participate in making Bill 6 the strong and clear ban on fracking we deserve, click here.

NOFRAC recommends the following changes be made to Bill 6.

1.     Hydraulic fracturing should be defined in the Bill

The proposed legislation would have the Minister adopt the definition in regulations only. If the definition is not included in the bill, but only in regulations, the definition could be changed by the Minister without public consultation or legislative debate.

The definition of hydraulic fracturing covered by the Bill determines the extent of the ban. The definition should be in the Bill itself.

2.     Definition of hydraulic fracturing

We propose either of these two definitions for hydraulic fracturing, to be included in the Bill: 

“… 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;” (from NS Importation of Hydraulic Fracturing Wastewater Prohibition Act, Section 2(a))

  • or

“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.” (from Council of Canadian Academies, 2014 report on shale gas, p. 224)

Note: The government Bill refers to high volume hydraulic fracturing (HVHF.)  Defining HVHF could require many details relating to amounts of water used, or how much pressure is used, or whether directional drilling is used.

We think that the more general definitions suggested here, which are similar to definitions contained in legislation in other jurisdictions, would be more appropriate, would do the job sufficiently, and would be easier to enforce.  As the bill also specifies the rock formations where the prohibition applies (shale), it will be clear that this does not prohibit hydraulic fracturing as used for water wells, or for conventional oil and gas. See appendix to NOFRAC letter to Minister Younger, September 24, 2014.)

3.     Community consent

The Bill needs to acknowledge the need for acquiring community consent before hydraulic fracturing can occur – a key finding of the Wheeler Review.

We propose the addition of wording in the Bill to specifically acknowledge that (i) municipalities have the right to ban or restrict hydraulic fracturing; and/or (ii) that if a future legislature lifts the ban on fracking, a local municipal referendum authorizing fracking would be required before fracking could proceed within the applicable municipality.

4.     Minister’s right to review the prohibition – additional issues to be taken into account.

The proposed Bill states (11B) the Energy Minister may review the prohibition and evaluate the “net benefit to Nova Scotians” taking into account social issues, economic issues, health, environmental issues, scientific and technical issues, and regulatory effectiveness and efficiency issues, plus “any other matter or thing that the Minister considers necessary or advisable”.

We recommend that the following items be added to the list of issues a Minister must consider in reviewing the prohibition, in relation to protecting citizens and the province from potential damages caused by hydraulic fracturing:

  • Availability of a cost effective, affordable, speedy remedy for citizens and the province when damage occurs, that places the burden of proof on polluters not citizens;
  • Industry provides secure liquid financial resources that will remain available to pay all reasonably foreseeable costs and losses citizens and the province may incur;
  • Ongoing availability of all facilities, equipment, techniques, experts and personnel, that are adequate to ensure the prompt removal of all pollutants that may be released into the environment, and otherwise restore all affected life and property.

The Wheeler Review recognized a number of these issues as requiring attention.

5.     Ministerial review must include public consultation

In the case that the Minister reviews the prohibition, such review must include broad public consultation.

We recommend the addition, under Section 11B,”The minister may review the prohibition”, of a new point (3), stating:

“If the Minister reviews the prohibition, such review shall include a transparent process including opportunity for broad public consultation and input from independent experts.”

6.     Define and limit exemption for research and testing

The bill should define the meaning of “for the purpose of testing and research.”

The definition should specify that no research and testing using hydraulic fracturing will be permitted if there are or can reasonably expected to be similar data and research from other jurisdictions, with research and testing in the province being limited to that necessitated by Nova Scotia’s specific geology.

7.     Bill does not address hydraulic fracturing for all unconventional oil and gas – HF in tight sands and for coal bed methane are excluded

The proposed legislation applies to fracking operations in shale formations” only.

The Wheeler Public Review on Hydraulic Fracturing addressed “…the process of hydraulic fracturing and its directly associated activities and technologies for the purpose of unconventional gas and oil development. ”

Unconventional gas and oil development occurs not just in shale formations but also in tight sands and coal beds. Large areas of the province could be affected by hydraulic fracturing in tight sands or coal beds.

The Wheeler Review did not differentiate between these formations when looking at potential problems and risks of hydraulic fracturing. The risks arising from fracking in these other formations are similar, if not identical, to fracking shale. Public and scientific concerns are not restricted to hydraulic fracturing in shale formations.

NOFRAC’s question to the government is this: If this bill applies only to hydraulic fracturing in shale formations, how is the government going to address the wide range of risks identified by the Wheeler Review relating to hydraulic fracturing for other types of unconventional gas and oil.

The government needs to explain how they will, by means other than this legislation, address the risks posed by fracking outside of shale rock formations and address the need for further study of the risks and protection from the risks, before hydraulic fracturing is permitted in unconventional non-shale formations.

 

October 3, 2014

 
See also Letter to Minister Younger, Sept. 24, 2014, for additional information on these points.

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