The federal government’s role in regulating shale gas exploration in Quebec

Petition

[OAG Translation]

Names of petitioners 
Simon-Philippe Breton, PhD
Louis-Étienne Boudreault, B.Ing.

Address of sender
Simon-Philippe Breton
4620 Parthenais
Montréal (Québec)
H2H 2G7

Telephone numbers
Home: 514-544-2300
Cell: 514-298-0651

E-mail address:

sbreton2001@yahoo.ca

Under section 22 of the Auditor General Act, I am submitting this petition in an environmental matter to the Auditor General of Canada.

Signature of petition: [Original signed by Simon-Philippe Breton]
Date: 30 December 2010

Title
Federal government involvement in shale gas activities in Quebec

Background

Sir:
As citizens of Quebec concerned about protecting the environment, and researchers in the field of renewable energy, we are anxious about current exploration and the potential exploitation of shale gas in the St. Lawrence Valley. We are accordingly requesting officially, under the Auditor General Act, that our questions be forwarded to the federal departments and agencies concerned for a response. Recognizing that many aspects of this matter are under provincial jurisdiction, we nevertheless wish to raise several issues that could affect some areas of federal responsibility.

Shale gas exploration and its potential exploitation have been making headlines in Quebec since the summer of 2010. This type of gas, hitherto unknown to most Quebeckers, has become omnipresent in our lives. The Quebec government seems determined to proceed with the exploitation of shale gas, and has referred on a number of occasions to its favourable view of such exploitation. The government recently instructed the Bureau d’Audiences Publiques sur l’Environnement (BAPE) [translator’s note: provincial body responsible for public hearings on environmental issues] to determine how the shale gas industry should develop on a sustainable basis, but the BAPE was given very limited time and resources to do so. There is thus no question of the BAPE’s inquiring as to whether or not this exploitation is desirable for Quebec; it is rather to advise the government on how the industry is to be supervised. Although the BAPE is to submit its report in February 2011, exploration of the subsoil of the St. Lawrence Valley has already begun and will continue throughout the public hearings, despite the fact that some exploration companies are claiming that the government's supervisory measures are inadequate, and we now know that exploitation of shale gas entails a number of environmental risks.

Shale gas exploration and exploitation is carried out by hydraulic fracturing of the shale, a process in which millions of litres of water combined with numerous chemicals are injected into the earth under high pressure. This fractures the rock formations, thereby releasing the natural gas, which is then pumped to the surface. Some of the chemicals used, like benzene, are known carcinogenic toxins. Representatives of Quebec's Ministère du Développement durable, de l’Environnement et des Parcs (MDDEP) [translator’s note: provincial department responsible for sustainable development, environment and parks] have recently stated that the ecological impact of some of these chemicals is not yet known and will not be known for a matter of months or years.

A number of incidents have been reported following the use of this technique in the United States, where groundwater was affected, thereby contaminating a number of wells supplying drinking water and affecting the health of citizens, agricultural livestock, and wildlife in the vicinity. Gas leaks have also been observed, leading to the contamination of a number of rivers and streams. Nearly 40% of the water used will stay underground after the fracturing process, and only 60% will be pumped to the surface. This highly polluted water will be treated in municipal filtration plants that were not designed to handle chemical compounds of this kind. A number of questions have therefore been raised about the huge quantities of potable water used in fracturing, and how the contaminated water returning to the surface is to be treated.

In Quebec, there are plans for shale gas exploitation in the St. Lawrence Valley, which contains the largest population pool in the province. A majority of citizens—74% of respondents in a Senergis–Le Devoir survey in December 2010—are calling for a moratorium on exploration and exploitation of this resource. They fear for their health and safety, and the contamination of the environment. Citizens find themselves with no recourse, since the government seems to have decided to go ahead with this industry. Moreover, the provincial Mining Act, dating from 1880, takes precedence over all other provincial or municipal legislation, such as that concerning local planning or the protection of water resources.

The purpose of this petition is therefore to request that the various federal departments and agencies verify the application of specific federal statutes to the exploration and exploitation of shale gases. It is also requested that the departments concerned intervene appropriately to provide better supervision of the industry, and to prohibit certain practices.

Specific questions to be put to the departments and agencies listed:

The pumping of used water into settling ponds in connection with the exploitation of the tar sands in Alberta has led to pollution of the Athabaska river. In response to this, and to growing awareness of the serious impact of such contamination, the federal government recently intervened in Alberta, compelling the adoption of stricter regulations to protect watercourses that may be affected by this industrial activity. The exploitation of shale gas will also lead to the pollution of millions of litres of water, and municipal treatment plants are not capable of appropriate treatment of the chemicals and toxins it contains. There is thus a risk that the contaminated water will enter watercourses in Quebec. Moreover, the polluted water remaining on the surface could leach into the province’s groundwater and watercourses. Furthermore, since settling ponds are not infallible, water from the fracturing process in such ponds could also spill into watercourses. In the knowledge that the federal government has the authority to intervene to protect watercourses, as shown in the example mentioned above, following are a few questions on this subject:

Question for Environment Canada

1. Since Environment Canada’s mandate is to preserve the quality of the natural environment and protect Canada's freshwater resources, and in the knowledge that water from hydraulic fracturing in shale gas exploration and exploitation contains toxins and there is a genuine risk of their contaminating groundwater, what policies might be implemented to prevent future harm to the quality of the environment and our freshwater resources?

2. Whereas the hydraulic fracturing process requires huge quantities of water, and some 40% of it remains underground, what practical measures, according to what timetable, does Environment Canada plan to take in order to supervise the shale gas industry in Quebec with respect to the preservation of water resources?

Question for Fisheries and Oceans Canada

3. In the knowledge that the hydraulic fracturing process requires huge quantities of water, usually taken from watercourses in the vicinity of shale gas wells, in what ways and according to what timetable could Fisheries and Oceans Canada intervene to protect fauna and flora threatened by possible reductions in water levels due to shale gas exploitation, with a view to preventing problems rather than correcting damage after the fact?

4. In the knowledge that the shale gas industry exploits watercourses and rivers, that there is a risk of substantial impact on marine ecosystems, and that Fisheries and Oceans Canada’s mandate is to secure compliance with environmental standards and regulations, what practical measures, according to what timetable, does the Department plan to take in order to supervise the shale gas industry in Quebec?

Questions for Health Canada

5. The Canadian Environmental Protection Act (CEPA) makes Health Canada responsible for assessing health risks to Canadians and for taking action to reduce such risks. In view of the risks to human health posed by the pollution associated with shale gas exploitation in Quebec, what action does the Department plan to take in order to protect public health? What is the explanation for its inactivity in this matter, as the case may be?

6. In the knowledge that fracturation water used in shale gas exploitation contains carcinogens that are toxic to humans, and that such exploitation poses a genuine risk of groundwater contamination, what controls can Health Canada exert over the use, release, and disposal of fracturation water? Can such controls also include a formal ban on exploitation, and if not, why not?

7. In the knowledge that Health Canada applies the principles of risk assessment and management to any substance regulated under the CEPA before it can be used on the Canadian market, and that toxins from fracturation water meet the definition of “toxic substances” under the CEPA, what work plan and timetable have been set by Health Canada for implementation of its risk management plan in relation to shale gas exploitation in Quebec? If such action has not yet been planned, how do you explain this situation?

Question for Agriculture and Agri-Food Canada

8. In the knowledge that shale gas exploitation in Quebec may constitute an obstacle to the development of Canada's agri-food sector, in particular through soil contamination with toxins from fracturation water, what requirements, measures and timetables will the Department be applying to companies operating in Quebec, through the power vested in it?

Questions for the Department of Natural Resources

Sustainable development is defined as “development which meets the needs of the present without compromising the ability of future generations to meet their own needs.”

Shale gas exploitation, using current technology, seems to be at odds with the principle of sustainable development, in that it entails environmental risks that could leave behind a polluted environment for future generations. Moreover, since shale gas is not a renewable resource, exploiting it now means that future generations will be deprived of it.

Section 6 of the Department of Natural Resources Act states that “In exercising the powers and performing the duties and functions assigned to the Minister by section 5, the Minister shall (a)have regard to the sustainable development of Canada's natural resources and the integrated management thereof… [and] (d)participate in the development and application of codes and standards for technical surveys and natural resources products and for the management and use of natural resources."

9. What action might the Department of Natural Resources accordingly take in order to comply with paragraphs 6(a) and (d) of the Act with respect to shale gas exploration and exploitation in Quebec?

10. When and how might the Department intervene to prevent the exploitation of shale gas, knowing that clean and sustainable alternatives already exist?

Section 6 of the Resources and Technical Surveys Act states that “Subject to section 5 of the Department of Natural Resources Act … The Minister shall be responsible for coordinating, promoting and recommending national policies and programs with respect to energy, mines and minerals, water and other resources [and to that end may study recommendations] […] relating to the exploration for, or the production, recovery, manufacture, processing, transmission, transportation, distribution, sale, purchase, exchange or disposition of, any of those resources [or] the sources of those resources within or outside Canada."

11. In the knowledge of the importance of preserving water resources that are essential to life, and knowing that the deterioration of water that can result from shale gas exploitation, what national policies or programs will the Minister be coordinating, promoting, and recommending after studying the issue?

Section 7(1) of the Resources and Technical Surveys Act states that "The Minister may, in exercising the powers and carrying out the duties and functions mentioned in section 6, formulate plans for the conservation, development and use of the resources specified in that section and for related research and… may carry out those plans in cooperation with other departments, branches and agencies of the Government of Canada."

12. What measures might the Minister adopt in order to execute rational water management and exploitation programs to ensure water is used properly, efficiently, and without danger to health, which does not seem to be the case in relation to shale gas exploitation?

Note that under section 7(2), "In formulating and carrying out any plans under subsection (1), the Minister may (a) cooperate with the provinces and with municipalities; [and] (b) enter into agreements with any person or body, including the government of any province or any department, branch or agency of such a government, respecting the carrying out of those plans”.

Section 14(1) of the Canada Oil and Gas Operations Act states that "The Governor in Council may, for the purposes of safety and the protection of the environment as well as for the production and conservation of oil and gas resources, make regulations… (b) concerning the exploration and drilling for, and the production, processing and transportation of, oil or gas in any area to which this Act applies and works and activities related to such exploration, drilling, production, processing and transportation…[and] (g) prohibiting the introduction into the environment of substances, classes of substances and forms of energy in prescribed circumstances."

13. Knowing the risks inherent in hydraulic fracturing, might the federal government act to regulate shale gas exploration for the purposes of safety and the protection of the environment? If so, might it formally prohibit the introduction into the soil of millions of litres of water combined with the toxic chemicals required in the exploitation of shale gas? If not, why not?

14. If regulations adequate to the purpose do not exist, why does the government not make them?

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Minister's Response: Agriculture and Agri-Food Canada

16 March 2011

Mr. Simon-Philippe Breton
4620 Parthenais Street
Montréal, Quebec H2H 2G7

Sbreton2001@yahoo.ca

Dear Mr. Breton:

I am writing in response to Environmental Petition No. 307, which you submitted pursuant to section 22 of the Auditor General Act. On October 1, 2010, the office of the Commissioner of the Environment and Sustainable Development forwarded the petition to several federal departments for response. Each department will be responding separately.

In your petition, you posed a number of questions, one of which relates to my portfolio. You will therefore find enclosed Agriculture and Agri-Food Canada’s response to question eight of your petition.

Thank you for your interest in this important question and I hope that the information provided will be of assistance to you.

Sincerely,

[Original signed by Gerry Ritz, Minister of Agriculture and Agri- Food and Minister for the Canadian Wheat Board]

Gerry Ritz, PC, MP

Enclosure

c.c.: Mr. Scott Vaughan, Commissioner of the Environment and Sustainable Development

Question 8

The jurisdiction and control of gas exploration and production in Quebec fall under the responsibility of Quebec’s Ministère des Ressources naturelles et de la Faune and the Ministère du Développement durable, de l’Environnement et des Parcs (MDDEP). Agriculture and Agri-Food Canada has no legislation allowing it to intervene in this area.

Over the past few decades, Agriculture and Agri-Food Canada has carried out research on the matter of spreading sludge from municipal waste water treatment plants on agricultural lands. The objective of these studies was to look at the potential impacts on soil quality due to the presence of heavy metals or other potentially toxic organic products in these sludges. Application of such material could likely limit potential uses of soils (vegetable crops, field crops, pastures, etc.). Contamination of agricultural soils, as well as agro-chemical contamination of subsurface water, has also been the subject of nation-wide studies (Webber and Singh, 1995; Reynolds et al, 1995), and the recommendations made have been used by provinces that do not have their own standards for spreading sewage sludges on agricultural soils. The MDDEP alone, and jointly with the Ministère de l’agriculture, des pêcheries et de l’alimentation du Québec, has produced sludge reclamation guides for agriculture and forests for Quebec.

References

Reynolds, W.D., C.A. Campbell, C. Chang, C.M. Chao, J.H. Ewanek, R.G. Kachanoski, J.A. MacLeod, P.H. Milburn, R.R. Simard, G.R.B. Webster and B.J. Zebarth. 1995. Agrochemical Entry into Groundwater in The Health of our Soils: Towards Sustainable Agriculture in Canada. D.F. Acton and L.J. Gregorich, publication directors. Pages 97-110, Agriculture and Agri-Food Canada, Publication 1906/F.

Webber, M.D. and S.S. Singh. 1995. Contamination of Agricultural Soils in The Health of Our soils: Towards Sustainable Agriculture in Canada. D.F. Acton and L.J. Gregorich, publication directors. Pages 87-96, Agriculture and Agri-Food Canada, Publication 1906/F.

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Minister's Response: Environment Canada

11 May 2011

Mr. Simon-Philippe Breton
4620 Parthenais Street
Montréal QC H2H 2G7

Dear Mr. Breton:

I am writing in response to your Environmental Petition No. 307, pursuant to section 22 of the Auditor General Act, concerning the possible negative effects of shale gas exploration and exploitation in Quebec. Your petition was received in Environment Canada on January 12.

Enclosed you will find Environment Canada’s response to your petition. I understand that the Ministers of Fisheries and Oceans, Health, Agriculture and Agri-Food, and Natural Resources will be responding separately to questions that fall under their respective mandates.

I appreciate this opportunity to respond to your petition, and trust that you will find this information helpful.

Sincerely,

[Original signed by Peter Kent, Minister of the Environment]

The Honourable Peter Kent, P.C., M.P.

Enclosure

c.c.: The Honourable Gail Shea, P.C., M.P.
The Honourable Leona Aglukkaq, P.C., M.P.
The Honourable Gerry Ritz, P.C., M.P.
The Honourable Christian Paradis, P.C., M.P.
Mr. Scott Vaughan, Commissioner of the Environment and Sustainable Development

Environment Canada’s response to Environmental Petition No. 307, concerning the possible negative effects of shale gas
exploration and exploitation in Quebec, and the participation of the 
federal government in this file

Question 1: Given that Environment Canada has a mandate to preserve the quality of the natural environment and protect Canada’s drinking water resources, and that the hydrofracturing water resulting from shale gas exploration and extraction contains toxic substances and there is a real risk that that water could contaminate water tables, what policies could be put in place to prevent future damage to the environment and drinking water resources?

In Canada, all three levels of government (federal, provincial/territorial and municipal) have roles and responsibilities with respect to water management. The provinces and territories have the primary responsibility for most areas of water management and protection, including the licensing of most principal water uses. Federal jurisdiction over water generally includes management of water on Aboriginal and federal lands, fish habitat and waters frequented by fish, as well as international and inter‑provincial water issues. Provincial jurisdiction over water includes issues of water allocation, use, pollution, standards for water quality, and land management.

In general, petroleum and gas drilling and production fall under provincial jurisdiction except on federal land, and under territorial jurisdiction in the Yukon. For most provinces, the environment and natural resources ministries share responsibility for regulating oil and gas exploration and extraction and disposal of waste and wastewater. On federal lands, the National Energy Board is responsible for regulating the exploration, development and production of crude oil and natural gas. These regulatory responsibilities include oil and gas exploration, development and production, enhancing worker safety, and protecting the environment. The Board is also responsible as lead agency for the environmental assessment of projects within its jurisdiction.

Federally, jurisdiction over shale gas development falls under the mandate of several departments, agencies and boards. Environment Canada’s role and authorities in relation to pollution prevention and habitat protection is provided for in a number of statutes, in particular under the Canadian Environmental Protection Act, 1999 (CEPA 1999) and the Fisheries Act.

CEPA 1999 provides the key authorities for the assessment of chemical substances through the Existing and New Substances Programs, the management of toxic substances, and the Environmental Emergencies Program.

Environment Canada’s Existing Substances Program is responsible for the assessment of substances listed on the Domestic Substances List (DSL). The DSL is a list of approximately 23 000 “existing” substances that were used or manufactured in Canada between January 1, 1984 and December 31, 1986. Between 1999 and 2006, the Government of Canada categorized the chemicals on the DSL according to specific criteria, and identified approximately 4 000 that required further attention. These substances were categorized as high, medium or low priorities and are currently being addressed jointly by Environment Canada and Health Canada through the Chemicals Management Plan, launched by the Government of Canada in December 2006.

Under the Chemicals Management Plan, the Ministers of the Environment and of Health were mandated to take immediate action to assess those substances that were categorized as highest priorities for assessment, and to carry out further work on the substances identified as requiring further action. Currently, approximately 500 high‑priority substances are being assessed as part of two initiatives, the Challenge and the Petroleum Sector Stream Approach. Substances categorized as medium priorities will be assessed in the next round of priorities, for which work began in 2011. Risk management measures will be developed and implemented for substances that are assessed as meeting the toxicity criteria of CEPA 1999. For more information on the Chemicals Management Plan and the Existing Substances Program, visit www.chemicalsubstanceschimiques.gc.ca.

The New Substances Program is responsible for the assessment of substances that are not on the DSL and are considered “new” to Canada. Before these substances can be introduced into the Canadian marketplace, they must be assessed by Environment Canada and Health Canada to determine whether or not they are toxic, or capable of becoming toxic, to the environment or human health. If the substance is not suspected of being toxic, it is added to the DSL, which allows it to be used, manufactured or imported into Canada. If it is determined that a new substance may pose a risk to human health or the environment, CEPA 1999 authorizes Environment Canada to intervene prior to, or during, the earliest stages of its introduction into Canada. There are a variety of potential control measures for substances suspected of meeting the toxic criteria under section 64 of CEPA 1999.

When substances are not suspected of being toxic for a particular use, but may become “toxic” as a result of new uses or volume of use, the Significant New Activity (SNAc) provisions of CEPA 1999 may also be applied. SNAc provisions allow Environment Canada and Health Canada to assess the potential impacts of the substance as it relates to the new activities being proposed. The new substance is added to the DSL, and considered “existing,” but only for the uses assessed and specified in the SNAc. Any other use will require re‑notification to Environment Canada.

Further information on the New Substances Program is available at www.ec.gc.ca/subsnouvelles-newsubs/default.asp?lang=En&n=AB189605-1.

Some substances used in well drilling and hydraulic fracturing in the upstream oil and gas sector have been identified in the Existing and New Substances Programs. In addition, Environment Canada is reviewing the list of chemical substances which have been identified for use in fracturing fluids in Quebec (as provided to the Bureau d'audiences publiques sur l'environnement), New York State and Pennsylvania State. This review will determine whether these substances have or will be assessed under the Chemicals Management Plan.

Environment Canada is also responsible for the administration and enforcement of the pollution prevention provisions of the Fisheries Act, which prohibit the deposit of deleterious substances in water frequented by fish or in a place where that substance may enter such water, unless the deposit is authorized by regulation under a federal act. Any discharge which results in the release of a deleterious substance in water frequented by fish is an offence and must be reported and corrective measures taken. In the event of a discharge of deleterious substances in fish‑bearing water, the general prohibition in subsection 36(3) of the Fisheries Act would apply.

Environment Canada has proposed regulations under the Fisheries Act for municipal, community, federal and other wastewater systems, including national effluent quality standards for carbonaceous biochemical oxygen demand and total suspended solids. The objective of the proposed regulations is to reduce the risks to ecosystem health, fisheries resources and human health by decreasing the level of harmful substances deposited into Canadian surface water from wastewater effluent. In addition to the national effluent quality standards, the proposed regulations also specify the conditions to be met in order to deposit effluent containing certain deleterious substances, such as requirements concerning toxicity, effluent monitoring and record keeping and reporting. The regulations will be applicable to all municipal wastewater systems, even those receiving shale gas wastewater, with the exception of systems located in the Northwest Territories, Nunavut and regions north of the 54th parallel in Quebec and Newfoundland and Labrador.

Environment Canada’s authorities in relation to water resources are also found in the Canada Water Act, which provides the legal framework for undertaking federal–provincial programs and agreements for the conservation, development and utilization of Canada’s water resources.

Question 2: Considering also the fact that the hydrofracturing process requires enormous quantities of water and that approximately 40% of that water remains underground, what concrete actions, according to what timelines, does Environment Canada intend to take to regulate the shale gas industry in Quebec with a view to preserving water resources?

As mentioned previously, petroleum drilling and production generally fall under provincial jurisdiction except on federal land. Therefore, most shale gas wells in Canada are licensed and regulated by provincial authorities. The National Energy Board is responsible for regulating the exploration, development and production of crude oil and natural gas on federal lands.

Regulations applied to the oil and gas sector in Canada are designed to protect water resources during oil and gas development, including shale gas development. Specific regulations vary between jurisdictions, but generally speaking, techniques such as the use of steel casing and cement are used to isolate and protect groundwater zones from deeper natural gas, oil or saline water zones. Regulatory codes and standards such as these, combined with industry best practices, are designed to help ensure that drilling, completion and production techniques do not cause water contamination.

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Minister's Response: Fisheries and Oceans Canada

27 April 2011

Simon-Philippe Breton, Ph.D.
Louis-Étienne Boudreault, B.Eng.
4620 Parthenais
Montreal, Quebec
H2H 2G7

Dear Dr. Breton and Mr. Boudreault:

I am pleased to provide you with the Department of Fisheries and Oceans’ response to your environmental petition No. 307, received January 12, 2011, concerning federal government involvement in shale gas activities in Quebec.

Enclosed you will find the Department’s response to questions 3 and 4, which fall within our mandate. My colleagues will be responding separately to the questions in your petition that fall under their respective mandates.

I appreciate the opportunity to respond to your petition, and trust that you will find this information helpful.

Sincerely,

[Original signed by Gail Shea, Minister of Fisheries and Oceans]

Gail Shea, P.C., M.P.

Attachment

cc:  The Hon. Gerry Ritz, P.C., M.P.
The Hon. Christian Paradis, P.C., M.P.
The Hon. Leona Aglukkaq, P.C., M.P.
The Hon. Peter Kent, P.C., M.P.
Scott Vaughan, Commissioner of the Environment and Sustainable Development

Fisheries and Oceans Canada’s Response to Petition 307

Background

The Fisheries Act makes it possible to frame the effects of works and undertakings on fish and fish habitat in Canadian fresh and marine waters.

Subsection 35(1) of the Fisheries Act states that no person shall carry on any work or undertaking that results in the harmful alteration, disruption or destruction of fish habitat. Pursuant to subsection 35(2) of the Fisheries Act, however, Fisheries and Oceans Canada may issue authorizations for the alteration, disruption or destruction of fish habitat. As a general rule, an environmental assessment under the Canadian Environmental Assessment Act must first be carried out before such an authorization pursuant to subsection 35(2) of the Fisheries Act may be issued.

Moreover, the administration of subsection 36(3) of the Fisheries Act and its related provisions concerning the deposit of deleterious substances has been assigned to Canada’s Minister of the Environment.

Responses to the specific questions:

Question 3. In the knowledge that the hydraulic fracturing process requires huge quantities of water, usually taken from watercourses in the vicinity of shale gas wells, in what ways and according to what timetable could Fisheries and Oceans Canada intervene to protect fauna and flora threatened by possible reductions in water levels due to shale gas exploitation, with a view to preventing problems rather than correcting damage after the fact?

Section 35(1) of the Fisheries Act prohibits carrying on any work or undertaking that results in the harmful alteration, disruption or destruction of fish habitat. When a project could potentially cause the harmful alteration, disruption or destruction of fish habitat, it is the responsibility of the proponent to obtain an authorization beforehand in accordance with subsection 35(2) of the Fisheries Act. In such cases, it is up to the proponent to submit a project proposal to Fisheries and Oceans Canada for analysis.

Anyone who causes the unauthorized harmful alteration, disruption or destruction of fish habitat or engages in activities incompatible with the authorized conditions is in contravention of the Fisheries Act and may be found guilty of an offence.

Moreover, pursuant to the Species at Risk Act, the Minister of Fisheries and Oceans is responsible for the protection and recovery of the aquatic species at risk listed in Schedule 1 to the Act. The Species at Risk Act states that no person shall kill, harm, harass, capture or take an individual of a wildlife species that is listed as an endangered or a threatened species. It further states that no person shall destroy any part of the critical habitat of such species that has been identified and is subject to a ministerial order.

In this context, hydraulic fracturing, the drawing of water or any other activity carried out in fish habitat shall not mandatorily require a notice or authorization on the part of Fisheries and Oceans Canada unless the said activity results in the harmful alteration, disruption or destruction of fish habitat or generates impacts on an aquatic species that has been listed at risk.

To ensure compliance with the provisions of the Fisheries Act and the Species at Risk Act governing the protection of fish and fish habitat, as well as any other aquatic species listed at risk, Fisheries and Oceans Canada may, in the event of non-compliance resulting from shale gas exploitation activities, determine the occurrence of offences and take action in respect of the offenders, such as seeking the voluntary restoration of the affected environments and even launching judicial proceedings depending on the severity of offences.

Question 4. In the knowledge that the shale gas industry exploits watercourses and rivers, that there is a risk of substantial impact on marine ecosystems, and that Fisheries and Oceans Canada’s mandate is to secure compliance with environmental standards and regulations, what practical measures, according to what timetable, does the Department plan to take in order to supervise the shale gas industry in Quebec?

Fisheries and Oceans Canada collaborates regularly and on a voluntary basis with various industries to ensure compliance with federal legislative provisions governing the protection of fish and fish habitat. Over and above the authorizations and regulations issued by the Department, the preferred approach is to frame the activities of a particular industry, through the achievement of protection objectives, so as to reduce or eliminate any negative impacts on fish and fish habitat.

Nevertheless, in accordance with its mandate, Fisheries and Oceans Canada strives to secure compliance with the statutory provisions under its authority. To that end, Fisheries and Oceans Canada has a monitoring and compliance program to enforce these statutory provisions on Canadian territory for all types of work or undertakings. In cases of non-compliance with the Fisheries Act or the Species at Risk Act (with respect to aquatic species listed at risk) resulting from shale gas exploitation activities, Fisheries and Oceans Canada is empowered to determine the occurrence of offences and may take action in respect of the offenders, such as seeking the voluntary restoration of the affected environments and even launching judicial proceedings depending on the severity of offences.

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Minister's Response: Health Canada

11 May 2011

Messieurs Simon-Philippe Breton et Louis-Étienne Boudreault
4620, rue Partenais
Montréal (Québec) H2H 2G7

Messieurs,

This is in response to your environmental petition no. 307 of December 30, 2010, addressed to Mr. Scott Vaughan, the Commissioner of the Environment and Sustainable Development (CESD).

In your petition, you raise questions concerning shale gas development in Quebec.

I am pleased to provide you with the enclosed Health Canada response to your petition. I understand that the ministers of Fisheries and Oceans, Environment, Agriculture and Agri-Food, and Natural Resources will be responding separately to questions that come under the purview of their respective department or agency.

I appreciate your interest in this important matter, and I hope that you will find this information useful.

Sincerely,

[Original signed by Leona Aglukkaq, Minister of Health]

Leona Aglukkaq

c.c. Mr. Scott Vaughan, CESD
The Honourable Gerry Ritz, P.C., M.P.
The Honourable Peter Kent, P.C., M.P.
The Honourable Gail A. Shea, P.C., M.P.
The Honourable Christian Paradis, P.C., M.P.

Health Canada’s Response
to Environmental Petition No. 307

Question 5
Under the Canadian Environmental Protection Act, Health Canada is responsible for assessing the health risks to Canadians and for taking action to reduce these risks. Given the risks to human health posed by the pollution associated with shale gas development in Quebec, what steps does Health Canada plan to take to protect public health? What is the reason for its inaction, if applicable?

Response
Human health is a shared responsibility between the federal, provincial and territorial governments. Two Acts which Health Canada can use to help protect the health of Canadians and the environment are the Canadian Environmental Protection Act, 1999 (CEPA 1999) and the Canadian Environmental Assessment Act (CEAA).

Under CEPA 1999, Health Canada and Environment Canada share the mandate of assessing the potential risks associated with the use of new and existing chemical substances in Canada as well as undertaking risk reduction measures where necessary.

The Existing and New Substances Programs are two important initiatives under CEPA 1999 which allow the Ministers of Environment and Health to assess potential risks associated with environmental pollutants and substances. For substances of concern, a risk assessment must first be prepared to determine if it is harmful to human health or the environment, as defined under section 64 of CEPA 1999. If a substance is determined to be harmful, many risk management options are available under CEPA 1999 to ensure that appropriate action is taken so that risks to human health or the environment are eliminated or controlled.

Candidate substances for risk assessment are identified through seven main mechanisms under CEPA 1999:(1) industry information, (2) categorization of the Domestic Substances List, (3) provincial/territorial or international decision, (4) public nominations to the Priority Substances List, (5) new substances notifications, (6) emerging science and monitoring and (7) international assessment or data collection. These seven mechanisms allow Health Canada and Environment Canada to provide a scientifically rigorous, open and transparent process for identifying and prioritizing candidate substances for the assessment of their potential risks within Canada.

To date, none of these mechanisms have triggered an assessment of pollution associated with shale gas development. As Health Canada has not undertaken an assessment of pollution associated with shale gas development under CEPA 1999, we cannot comment further upon possible risk management measures at this time.

CEAA requires certain federal projects to undergo an environmental assessment before receiving approval. The intent of CEAA is to encourage responsible authorities to take actions that promote sustainable development and to ensure that projects are considered in a careful and precautionary manner before federal authorities take action in connection with them. The federal environmental assessment process is applied whenever a federal authority has a specified decision-making responsibility in relation to a project, also known as a “trigger” for an environmental assessment. Specifically, it is when a federal authority does one of the following:

• proposes a project;
• provides financial assistance to a proponent to enable a project to be carried out;
• sells, leases, or otherwise transfers control or administration of federal land to enable a project to be carried out; or
• provides a licence, permit or an approval that is listed in the Law List Regulations that enables a project to be carried out.

For more information on CEAA, please refer to the following website: http://www.ceaa-acee.gc.ca/010/basics_e.htm.

Health Canada’s role under CEAA is to provide its expertise on the potential health effects related to a project, if requested by one of the following:

• a Responsible Authority - i.e., federal department responsible for completing a federal environmental assessment;
• a review panel appointed by the Minister of the Environment; or
• an independent and impartial mediator appointed by the Minister of the Environment.

Health Canada has expertise on chemical substances, human health risk assessment, air quality, water quality, contamination of country foods (e.g., game, berries) and noise impacts.

CEAA environment impact assessments have not triggered a Health Canada review for the shale gas exploration projects referred to in the Petitioner’s inquiry. These projects fall under the jurisdiction of the Government of Quebec who should be contacted directly for more information.

Question 6
Knowing that slickwater from shale gas development contains carcinogens and matter that is toxic to human health and given that this development poses a real risk of contaminating the water tables, what can Health Canada do to regulate the use, release and disposal of slickwater? Can this regulation also include a formal ban on development and, if not, what are the reasons?

Response
As noted above, under CEPA 1999, Health Canada and Environment Canada share the mandate of assessing the potential threats posed by new and existing chemical substances, including carcinogenicity and other health effects, as well as undertaking risk reduction measures where necessary.

Provisions under CEPA 1999 allow the Ministers of the Environment and of Health to assess potential risks associated with environmental pollutants and substances and to manage those that are found to be harmful to human health or the environment as defined in section 64 of the Act and added to Schedule 1 of the Act. Section 93 and other provisions of the Act provide the Government with the authority to make regulations with respect to activities that may result in the release of substances listed on Schedule 1.

Health Canada has not conducted an assessment of hydraulic fracturing fluid under CEPA 1999. Therefore, we cannot elaborate upon possible risk management measures including regulations.

Some substances used in well drilling and hydraulic fracturing in the upstream sector have been identified under CEPA 1999 and some of the components of hydraulic fracturing fluid may have been assessed and managed under CEPA 1999. For further information, a listing of all substances found to meet section 64 and added to Schedule 1 of the Act can be found at the following link to Environment Canada’s website: http://www.ec.gc.ca/lcpe-cepa/default.asp?lang=En&n=24374285-1&offset= 14&toc=show. In addition, the Chemicals Management Plan website provides information on the assessment and management of substances that have been assessed under this Plan to date (http://www.chemicalsubstanceschimiques.gc.ca/index-eng.php).

Environment Canada is reviewing the list of chemical substances which have been identified for use in fracture fluids in Quebec (as provided to the Bureau d’audiences publiques sur l’environnement [BAPE]), New York State and Pennsylvania. This review will determine whether these substances have already been assessed under CEPA or are planned to be assessed by 2020 under the Chemicals Management Plan (CMP), which was launched in December 2006, to take action to manage the potential risks of chemicals that are harmful to human health or the environment. Preliminary results indicate that, of the approximately 250 substances identified, 13 have already been addressed under CEPA 1999 and approximately one quarter of the substances are among the substances categorized as medium priorities under the CMP.

Generally, petroleum drilling and production falls under provincial jurisdiction except on federal land. For most provinces, the environment and natural resources ministries share responsibility for regulating oil and gas exploration and extraction and disposal of waste and wastewater. On federal lands, the National Energy Board (NEB) is responsible for regulating the exploration, development and production of crude oil and natural gas. These regulatory responsibilities include oil and gas exploration, development and production, enhancing worker safety, and protecting the environment. The NEB is also responsible as lead agency for environmental assessment of projects within its jurisdiction.

Environment Canada is responsible for the administration and enforcement of the pollution prevention provisions of the Fisheries Act, which prohibits the deposit of deleterious substances in water frequented by fish or in a place where that substance may enter water unless the deposit is authorized by regulation under the Act. Any discharge which results in the release of a deleterious substance in water frequented by fish is an offence and must be reported and corrective measures taken. In the event of a discharge of deleterious substances in fish bearing water, the general prohibition in subsection 36(3) of the Fisheries Act would apply.

Question 7
Given that Health Canada applies assessment and risk management principles to any regulated substance, under the Canadian Environmental Protection Act, before the substance can be used in Canada and that slickwater toxins meet the definition of a toxin under the Act, what framework and time frame has Health Canada established to implement its risk management plan for Quebec's shale gas development? If such action has not yet been planned, please explain.

Response
As noted in the response to question 5, CEPA 1999 allows the Ministers of the Environment and of Health to assess and manage substances which may be harmful to human health or the environment.

Section 64 of CEPA 1999 states that: “a substance is toxic if it is entering or may enter the environment in a quantity or concentration or under conditions that

(a) have or may have an immediate or long-term harmful effect on the environment or its biological diversity;

(b) constitute or may constitute a danger to the environment on which life depends; or

(c) constitute or may constitute a danger in Canada to human life or health.

To date, as noted in the response to question 6, Health Canada has not conducted an assessment of hydraulic fracturing fluid under CEPA 1999, and has not concluded that it meets the criteria in section 64. Therefore, Health Canada cannot comment further upon possible risk management measures at this time.

Some substances used in well drilling and hydraulic fracturing in the upstream sector have been identified under CEPA 1999 and some of the components of hydraulic fracturing fluid may have been assessed and managed under CEPA 1999. For further information, a listing of all substances found to meet section 64 and added to Schedule 1 of the Act can be found at the following link to Environment Canada’s website: http://www.ec.gc.ca/lcpe-cepa/default.asp?lang=En&n=24374285-1&offset= 14&toc=show. In addition, the Chemicals Management Plan website provides information on the assessment and management of substances that have been assessed under this Plan to date (http://www.chemicalsubstanceschimiques.gc.ca/index-eng.php).

Environment Canada is reviewing the list of chemical substances which have been identified for use in fracture fluids in Quebec (as provided to the BAPE), New York State and Pennsylvania. This review will determine whether these substances have or will be assessed under the CMP, which was launched in December 2006, to take action to manage the potential risks of chemicals that are harmful to human health or the environment. Preliminary results indicate that, of the approximately 250 substances identified, 13 have already been addressed under CEPA 1999 and approximately one quarter of the substances are among the substances categorized as medium priorities under the CMP.

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Minister's Response: Natural Resources Canada

28 April 2011

Simon-Philippe Breton
Louis-Étienne Boudreault
4620 Parthenais
Montreal, Quebec
H2H 2G7

Dear Mr. Breton and Co-signatory,

I am pleased to respond to Environmental Petition no. 307 to the Commissioner of the Environment and Sustainable Development, pursuant to section 22of the Auditor General Act, regarding the federal government’s involvement in shale gas in Quebec. Your petition was received by Natural Resources Canada on January 20, 2011.

I am responding to questions 9 through 14, as they relate to the mandate of Natural Resources Canada. I understand that my colleagues, the Honourables Peter Kent, Minister of the Environment, Gail Shea, Minister of Fisheries and Oceans, Gerry Ritz, Minister of Agriculture and Agri-Food and Leona Aglukkaq, Minister of Health will be responding separately to issues that fall under their portfolios.

I appreciate having this opportunity to respond to your petition and trust that you will find this information helpful.

Thank you for raising these important concerns.

Yours sincerely,

[Original signed by Christian Paradis, Minister of Natural Resources]

The Honourable Christian Paradis, P.C., M.P.

Enclosure: (1)

c.c.: Mr. Scott Vaughan
Commissioner of the Environment and Sustainable Development

The Honourable Peter Kent, P.C., M.P.
Minister of the Environment

The Honourable Gail Shea, P.C., M.P.
Minister of Fisheries and Oceans

The Honourable Gerry Ritz, P.C., M.P.
Minister of Agriculture and Agri-Food

The Honourable Leona Aglukkaq, P.C., M.P.
Minister of Health

Petition 307 – Shale Gas Answers

Q. 9      What measures could Natural Resources Canada take to comply with sections 6(a) and 6(d) of the Department of Natural Resources Act in terms of shale gas exploration and development in Quebec?

Sections 6(a) and (d) of the Department of Natural Resources Act state:

Section 6 builds upon the functions assigned to the Minister in Section 5 of the Department of Natural Resources Act which states that:

Section 92 of the Constitution Act, 1982 dictates that the provinces have ownership over the natural resources that lie within their boundaries and are responsible for the regulation of resource development.

Thus, it is the provinces, not the federal government, that regulate and decide the pace and extent of resource development within their borders.

While the province of Quebec has jurisdiction and authority in this instance, the Government of Canada is committed to the safe, responsible and sustainable development of Canada's natural resources. Through the department’s Geological Survey of Canada (GSC), NRCan plays a key role in resource characterization and providing geoscience information. The GSC also provided expert testimony at Quebec’s Bureau d’Audiences Publiques sur l’environnement (BAPE) hearings with respect to the sustainable development of shale gas in Quebec. The geoscience information provided by NRCan is often used in making exploration, resource management, and environmental protection decisions by provincial governments.

Q. 10    Furthermore, when and how could the department intervene to prevent shale gas development, given that clean and sustainable alternatives already exist?

As noted in the response to question 9, it is the provinces, not Natural Resources Canada (NRCan), that have jurisdictional authority over hydrocarbon resources contained within provincial borders, including shale gas. As a result, NRCan would not be able to intervene in this area of provincial jurisdiction.

Natural gas is an important transition fuel to a low-carbon economy because it is cleaner burning than any other fossil fuel and is in abundant supply. Current estimates suggest there are more than 100 years of natural gas supply in North America, largely in the form of shale gas. While alternative fuels are expected to make up a larger share of the world’s energy mix in the future, according to the International Energy Agency, oil and gas will remain a major component of this energy mix well beyond 2030. The Government of Canada recognizes the importance of investing in clean energy technology and infrastructure. Since 2006, the Government of Canada has invested more than $10 billion to reduce greenhouse gas emissions and build a more sustainable environment through investments in green infrastructure, energy efficiency, clean energy technologies and the production of cleaner energy and cleaner fuels.

Q. 11    Given the importance of conserving water resources, essential to life, and considering the disposition of water that can result from shale gas development, what national policies and programs is the minister going to recommend, promote and coordinate upon reviewing the issue?

As noted in the responses to questions 9 and 10, the pace and scale of shale gas development within provincial borders is a provincial responsibility. Moreover, while the responsibility for managing and protecting our water resources is shared between federal and provincial governments, under the Constitution Act, 1982, the provinces and territories have primary jurisdiction over most areas of water management and protection. Further, the Minister of the Environment, under, the Department of the Environment Act, has primary federal responsibility for the preservation and enhancement of the quality of the natural environment, including water, air and soil quality.

Under Resources and Technical Surveys Act, the authority of Minister of Natural Resources in relation to water is subject to Section 5 of the Department of Natural Resources Act, and is restricted to energy resources derived from water (e.g., hydro-electric energy).

Natural Resources Canada (NRCan), along with other federal science-based departments are working to advance knowledge to better understand, preserve and protect water resources in Canada. NRCan also has a number of programs and activities that contribute to increasing knowledge and understanding of freshwater issues related to the natural resource sector. One notable example is that the department uses its expertise in earth sciences to assist in providing the hydrogeological information necessary to help ensure that water sources are identified to better support management.

Q. 12    What measures could the Minister adopt to deliver sustainable water management and development programs so that water is used appropriately and safely to promote public health while being effectively managed which does not appear to be the case for shale gas development?

As noted in response 11, the provinces and territories have primary jurisdiction over most areas of water management and protection.

Under the Resources and Technical Surveys Act, NRCan uses its authority to conduct geological and geotechnical surveys to help Canadians better understand the resource potential of Canada’s landmass. In relation to water, NRCan works with provincial partners on the assessment of key regional groundwater aquifers, developing and publically disseminating information and tools that assist and support water managers in other jurisdictions as they design and implement water management frameworks, including in areas of potential interest for shale gas development.

Q. 13    Given the risks inherent in hydrofracturing, could the federal government intervene to regulate shale gas exploration for the purposes of safety and environmental protection? If so, could it formally ban the introduction into the soil of millions of litres of water combined with the toxins needed in shale gas development? If not, what are the reasons?

Canada’s role in oil and gas exploration and production stems from the Canada Oil and Gas Operations Act (COGOA). The COGOA only applies to oil and gas exploration in the Northwest Territories, Nunavut, Sable Island and to submarine waters. As a result, the COGOA could not be used to intervene or regulate shale gas exploration within a province. The COGOA would currently apply to the Gulf of the St. Lawrence, but not to the St. Lawrence River.

Generally, petroleum exploration and development activities are regulated under provincial jurisdiction and under territorial jurisdiction in the Yukon. For most provinces, the environment and natural resources ministries share responsibility for regulating oil and gas exploration and development, including disposal of waste and wastewater. On federal lands, the National Energy Board (NEB) is responsible for regulating the exploration and development of crude oil and natural gas. The NEB is also the lead agency for environmental assessment of projects within its jurisdiction.

As noted in the response to question 11, responsibility for issues related to water are shared amongst federal departments. As this petition contains questions related to water quality, safety and environmental protection that are directed to Environment Canada, Fisheries and Oceans and Health Canada, please reference the answers to questions 1 through 7 for further details.

Q. 14    If adequate regulations do not exist, why is the government not developing them?

Provincial regulators are responding to changes in resource extraction techniques. For example, British Columbia’s Oil and Gas Activities Act came into effect in mid-2010 to respond to increased pressures on its regulatory system as well as to better regulate the new technologies employed in modern oil and gas production. The regulatory powers in the new Act enable specific regulations to be developed for special projects such as shale gas. These powers will enable the B.C. government to manage shale gas projects differently from conventional operations to ensure that safety and environmental goals are met.

Similarily, in Alberta, the ERCB has initiated a corporate-wide Unconventional Gas Regulatory Framework Project to develop and implement a new regulatory framework for the development of Alberta’s coal bed methane, shale gas, and tight gas by 2011. The project is assessing regulatory risk associated with developing unconventional gas, and it is assessing scientific and technological challenges and opportunities.

Following the Quebec government’s acceptance of the Bureau d’audiences Publiques sur l’environnement (BAPE) hearings, Quebec is also undertaking the development of a new regulatory framework for oil and gas production in the province.