The regulation of tidal energy development off Nova Scotia: navigating foggy waters.

• Author: Doelle, Meinhard

INTRODUCTION

The vast potential for tidal power development in the Bay of Fundy region of the Atlantic coast has been recognized for decades. At the same time, finding an effective way to harness this power in a cost effective, sustainable and environmentally responsible manner has been an ongoing challenge. In the 1980s, barrage based tidal power technology was piloted in Annapolis Royal, Nova Scotia. It was found to be unsuitable from both environmental and cost perspectives. (1)

More recently, pilot projects underway around the world are using new, open turbine technology that is expected to significantly reduce cost and environmental impact. This technology operates on principles similar to a wind turbine, except it is anchored on the seabed in tidal waters. These turbines are able to take advantage of flows of water in both directions, and offer power in predictable intervals during most of the tidal cycle. While this technology is still in the early stages of commercialization, there are pilot projects underway around the world. As a result, the question of how to make decisions on whether, where and under what conditions to permit tidal power development in regions such as the Bay of Fundy have arisen again. (2)

The Bay of Fundy finds itself in a region of Canada that has seen the introduction of a number of major new industries over the past few decades. Included in this list are pulp and paper, aquaculture, and, most recently, offshore oil and gas facilities. Decisions on how to regulate these industries were generally reactive and sometimes short-sighted. Since the arrival of these industries, there has been considerable change in the understanding of how governments can make responsible decisions in the best long term interest of their citizens. The pending arrival of tidal power development in Nova Scotia provides an opportunity to implement the lessons learned, to apply appropriate governance models to see through the log, and to maximize long term benefits to the region.

The following article seeks to make the case for principled governance of resource based industries such as tidal power. The primary aim is to offer an overview of the international, constitutional and legislative context and to briefly illustrate the benefits of a principled, proactive approach. A detailed design of the proposed governance regime, strategic assessment and integrated planning processes are left for follow-up research. The purpose here is to lay the foundation for such further work.

The article therefore considers issues related to the governance of this new development opportunity by first identifying, in Parts One and Two, the international and constitutional context within which any governance regime for the Bay of Fundy would exist. Parts Three and Four then briefly describe key existing legislative and regulatory systems in place in Nova Scotia that would apply to tidal power development projects. Experiences in other jurisdictions are assessed in Part Five, both with respect to tidal power and for other comparable offshore developments, such as wind. Within this overall context, Part 6 of the article then offers some preliminary thoughts on the essential elements of a suitable governance regime.

1. The International Law and Policy Context

While tidal energy is not the subject of any specific international agreement, various international agreements and documents have implications for how tidal power projects should be assessed and decided upon. (3) Treaties of particular importance are the 1982 Law of the Sea Convention (4), the 1992 Convention on Biological Diversity (5) and the Kyoto Protocol on Climate Change. (6) Key global documents include the Rio Declaration on Environment and Development (7), Agenda 21 (8) and the World Summit on Sustainable Development (WSSD) Plan of Implementation. (9)

1982 Law of the Sea Convention

The 1982 Law of the Sea Convention (LOSC) has both jurisdictional and environmental implications for tidal energy developments. As for jurisdiction, the Convention explicitly grants coastal States like Canada the right to develop and regulate tidal power within the 200 nautical mile exclusive economic zone (EEZ). Article 56 provides coastal States with sovereign rights in the EEZ "for the purpose of exploring and exploiting, conserving and managing natural resources ... and with regard to other activities for the economic exploitation and exploration of the zone, such as production of energy from the water, currents and winds ..." (emphasis added).

Where a State's continental shelf extends beyond 200 nautical miles (rim), as is the case with Canada's continental margin off Newfoundland and Labrador, the Law of the Sea Convention also provides jurisdictional rights in relation to energy production. Article 80 grants the coastal State the exclusive right to construct and regulate installations and structures on the continental shelf, including for energy production purposes.

With no international agreement in place to govern future energy projects beyond national jurisdiction (10), all States could claim access to ocean energy on the high seas, with minimal constraints. For example there would be a duty to give due regard for the interests of other States on the exercise of their freedoms such as fishing and navigation. (11)

All States are entitled to lay submarine cables on the bed of the high seas. (12) Every State has an obligation to adopt laws making it a punishable offence for the willful or negligent breaking or injuring of high voltage power cables by ships flying its flag or by a person subject to its jurisdiction. (13)

LOSC also has environmental implications. The Convention bestows a general obligation on States to protect and preserve the marine environment. (14) The Convention also requires States to subject proposed activities under their jurisdiction or control to environmental assessment if the planned activities may cause significant and harmful changes to the marine environment. (15) The threshold of "significant and harmful" is not defined under the Convention and its application to tidal power projects would likely depend on the type of technology and size of operation being proposed.

1992 Convention on Biological Diversity

The Convention on Biological Diversity (CBD), besides having had broad law and policy influences in Canada relevant to tidal power development (16), may be especially important in relation to environmental assessment of tidal projects and strategic environmental assessment of tidal energy programmes or policies. The Convention requires Parties to subject proposed projects likely to have significant adverse effects on biological diversity to environmental impact assessment (EIA) with a view to avoiding or minimizing such effects. (17) The Convention also encourages Parties to consider the biodiversity impacts of proposed programmes and policies through arrangements (18) such as strategic environmental assessment.

Voluntary guidelines on biodiversity-inclusive impact assessment which have been developed (19) should be considered in the tidal energy context. The guidelines on biodiversity-inclusive environmental impact assessment emphasize the need to develop biodiversity criteria for impact evaluation and to have measurable standards or objectives against which the significance of individual impacts can be evaluated. (20) The draft guidance on biodiversity-inclusive strategic environmental assessment highlights the importance of applying strategic environmental assessment, for example to national energy policy, in order to streamline the incorporation of environmental concerns into the decision-making process and to make project-level EIA more effective. (21)

Kyoto Protocol

Tidal power development could become an important contributor towards meeting Canada's obligations under the Kyoto Protocol. During the first commitment period 2008-2012, Canada is required to cut greenhouse gas emissions by 6% from 1990 levels. Article 2 of the Protocol specifically urges countries to undertake research on and to promote renewable forms of energy in order to limit or reduce greenhouse gas emissions.

Key Global Documents

Various principles and prescriptions for promoting sustainable development which have emerged through international declarations and action plans (22) should be considered in development of a law and policy framework for tidal energy.

Rio Declaration

Setting out 27 principles in support of sustainable development (23), the Rio Declaration on Environment and Development includes three particularly important for policy formation and decision-making in relation to offshore tidal energy:

* Public participation (Principle 10). The Declaration emphasizes three main dimensions where public participation needs to be ensured, namely, public access to environmental information held by public authorities, citizen participation in decision-making processes and effective access to judicial and administrative proceedings.

* Precautionary approach (Principle 15). Perhaps the most controversial of all principles (24), the Declaration calls on States to take a precautionary approach where proposed activities threaten serious or irreversible damage and there is a lack of scientific certainty regarding impacts. A strong version of precaution advocates placing the burden of proof on proponents of development to demonstrate some threshold for approval such as no significant harm. (25)

* Indigenous people and local community management/development (Principle 22). The Declaration emphasizes the vital role that indigenous and local communities should play in environmental management and development. The principle includes notions of social equity whereby policy-makers need to consider not only the social and cultural impacts of proposed developments but also how to ensure local participation and benefits.

Agenda 21

Chapter 17 of the oceans and coastal...