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Canada’s UNDRIP Law Receives Royal Assent

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Bill C-15, the United Nations Declaration on the Rights of Indigenous Peoples Act (the Act), received Royal Assent on June 21, 2021. The Act affirms the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) as a universal international human rights instrument applicable in Canadian law and seeks to provide a framework for its implementation in Canada. This bulletin provides an overview of the implications and key aspects of the Act. Implications of the Act. The Act is widely seen as the first step in the domestic implementation of UNDRIP in Canada and follows similar legislation adopted by British Columbia in 2019. The Act does not itself implement UNDRIP into Canadian law but provides a pathway for its adoption and application, commensurate with Canadian law and the framework for recognizing the rights of Indigenous peoples provided under Canada’s Constitution. It is not yet clear to what extent Canadian law will be made consistent with certain provisions of UNDRIP, specifically the right of Indigenous peoples to free, prior, and informed consent (FPIC) for actions that may affect their rights, resources, and traditional territories. It is, however, probable that the use of UNDRIP as a tool for the interpretation of rights and statutes is likely to increase, in light of the Act, as laws are amended and adopted, in order to ensure or improve consistency with UNDRIP. Rights of Indigenous peoples. Section 2(2) provides that the Act upholds, and does not abrogate or derogate from, the rights of Indigenous peoples recognized and affirmed by section 35 of the Constitution Act, 1982.   Consistency with UNDRIP. Section 5 provides that the Government of Canada must take all measures to ensure that the laws of Canada are consistent with UNDRIP. Action Plan. Section 6 provides that the Minister designated by the Governor in Council pursuant to section 3 (the Minister), must prepare…

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Canada Submits NDC to UNFCCC, Formally Commits to Reduce Emissions by 40-45% by 2030

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Canada yesterday filed its update to its nationally determined contribution (NDC) under the Paris Agreement with the United Nations Framework Convention on Climate Change (UNFCCC) secretariat. The updated NDC commits Canada to reduce GHG emissions by its previously announced target of 40-45% below 2005 levels by 2030, reaching net-zero emissions by 2050. Canada’s emissions reduction ambitions under the NDC are supported by the Pan-Canadian Framework on Clean Growth and Climate Change and Canada’s strengthened climate plan: A Healthy Environment and a Healthy Economy (read our earlier bulletin on the plan here) as well as the various climate plans of provincial and territorial governments and the climate leadership, priorities, and goals of the Indigenous peoples of Canada.   Modelling for the NDC indicates that GHG emissions are anticipated to decline to 401 to 438 Mt CO2e by 2030. Further reductions are to be achieved with the adoption of innovative technologies such as zero-emission vehicles (ZEVs), industrial electrification, carbon capture, utilization and storage (CCUS), and hydrogen. The NDC makes clear that Canada is committed to a just transition to a net-zero economy (read our earlier bulletin on the Net-Zero Emissions Accountability Act here) through economic diversification and support for workers with skills training, education, accreditation, and ensuring equitable access to opportunities for underrepresented individuals and groups. For further information or to discuss the contents of this bulletin, please contact Lisa DeMarco at lisa@resilientllp.com.

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Canadian Net-Zero Emissions Accountability Act Passes Third Reading

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Bill C-12, the Canadian Net-Zero Emissions Accountability Act, (the NZ Bill) passed third reading in the House of Commons late yesterday evening. The NZ Bill was introduced last November, and if enacted will require national targets for the reduction of greenhouse gas (GHG) emissions on the pathway to net-zero emissions by 2050. This bulletin provides a brief overview of the NZ Bill and next steps:   Emissions reduction targets and plans. The NZ Bill provides for emissions reduction targets to be set by the Minister of Environment and Climate Change (the Minister) every five years, starting in 2030. The Minister must also establish an emissions reduction plan for each milestone year, indicating how Canada will meet the corresponding target. Each plan must also, inter alia, provide a description of relevant sectoral strategies, how international commitments are taken into account, and emissions reduction strategies for federal government operations; and provide projections of annual GHG emission reductions for each economic sector that Canada includes under the United Nations Framework Convention on Climate Change.  Net-Zero Advisory Board. The NZ Bill would establish the Advisory Board to provide independent advice to the Minister on achieving net-zero emissions by 2050 and each five-year milestone. The Advisory Board will provide advice on GHG emissions targets; GHG emissions reduction plan, including measure and sectoral strategies that the government could implement to achieve GHG emissions targets; and any other matter referred to it by the Minister. The Advisory Board is to be composed of members with expertise in, or knowledge of climate change science; Indigenous knowledge; relevant physical and social sciences; climate change and climate policy at the national, subnational, and international levels; energy supply and demands; and relevant technologies. Commissioner of the Environment and Sustainable Development. At least every five years, the Commissioner of the Environment and Sustainable Development will be required to examine and report on the government’s implementation of measures to…

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Major Oil Sands Companies Announce Net Zero Initiative

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Five of Canada’s largest oil sands producers operating 90% of oil sands production, including Suncor Energy, Canadian Natural Resources, Cenovus Energy, Imperial, and MEG Energy, today announced the Oil Sands Pathways to Net Zero initiative (the Initiative). The Initiative aims to work collectively with the federal and Albertan governments to reach net zero greenhouse gas (GHG) emissions from Canadian oil sands operations by 2050 and help Canada to meet its Paris Agreement and 2050 net zero commitments.  This bulletin provides key highlights from the announcement. Carbon Capture, Utilization and Storage. The Initiative proposes collaborating with industry and government to create a Carbon Capture, Utilization and Storage (CCUS) CO2 trunkline system connecting oil sands facilities in the Fort McMurray and Cold Lake regions to a sequestration hub in Cold Lake with the potential for future links to the Edmonton region, modeled on similar systems in Norway and CCUS projects in the Netherlands, U.K., and U.S. Investment. The Initiative will require significant investment by industry and government in research and development for new and emerging technologies, such as direct air capture, aimed at reducing and removing GHG emissions as well as deploying GHG reduction technology, including hydrogen, process improvements, energy efficiency, fuel switching, and electrification. Indigenous Partnerships. The Initiative will seek to partner and work with the federal and Alberta governments, to ensure that local Indigenous communities benefit from both emissions reductions and Canadian resource development. For further information or to discuss the contents of this bulletin, please contact Lisa DeMarco at lisa@resilientllp.com.

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CCLI Releases New Opinion on Legal Implications of Climate Change For Pension Plans

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The Canadian Climate Law Initiative today released a new opinion by pensions lawyer Randy Bauslaugh, titled Climate Change: Legal Implications for Canadian Pension Plan Fiduciaries and Policy-Makers (the Opinion). The Opinion makes clear that (i) pension fund fiduciaries have a duty to consider climate-related financial risks and opportunities and (ii) failing to do so may lead to personal liability for economic, reputational, or organizational loss. This bulletin briefly summarizes the key findings of the Opinion: Legal responsibilities of plan fiduciaries. Climate change poses immediate and long-term economic and portfolio risks and opportunities that result in the need to take a multi-generational oversight approach. In addition, flowing from the fiduciary’s standard of care and duty of loyalty, climate change is a primary consideration of fiduciaries in advancing the primary purpose of plan fiduciaries: providing periodic payments to individuals after retirement and until death in respect of their service as employees. The financial relevance of climate change to fiduciary investment responsibilities. The financial relevance of climate change is supported by its acceptance by the financial services sector, including bankers, accountants, insurers, investment managers, securities regulators, academics, and public sector organizations, as well as the unequivocal acceptance of the causes and impacts of climate change by all parties in the recent Supreme Court of Canada decision upholding the federal Greenhouse Gas Pollution Pricing Act (read our earlier bulletin here). Must plan fiduciaries consider implications of climate change? The Opinion notes that with the growing consensus around the materiality of climate-related risks and opportunities, failure to take climate change into account may result in a fiduciary facing:  -removal;  -court-ordered disclosure of information related to climate change-related risks;  -fines and penalties under pension standards legislation; and -personal financial responsibility for investment underperformance or loss resulting from failure to properly manage climate change risks and opportunities, including equitable compensation or exemplary damages Please contact Lisa DeMarco at lisa@resilientllp.com should…

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