This June – 18 months after Prime Minister Trudeau issued mandates to six Cabinet Ministers to fix four of Canada’s environmental laws, and after two Parliamentary Committee and two expert panel reviews – the federal government released its Environmental and Regulatory Reviews Discussion Paper. The Paper outlines some of the key changes the government is considering to strengthen, modernize and restore public trust in environmental decisions.
While the Discussion Paper is light on detail, it provides a sense of the general direction that government is going in some areas, and illuminates some unanswered questions. This blog provides a brief overview and reflection on some of the key elements – and gaps – in the Paper; for more information, you can check out our detailed analysis.
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Overview
The Paper follows expert panel reviews of federal environmental assessment (EA) processes and the National Energy Board, and Parliamentary Committee reviews of the Fisheries Act and Navigation Protection Act, which were launched to deliver on government promises to strengthen, modernize and restore public trust in those environmental laws.
On its release, West Coast issued Making the Grade: A Report Card on Canada’s Proposal for Strengthening Environmental Laws and Processes, which graded the main discussion points against key recommendations on next-generation environmental laws. The Discussion Paper got a C- overall, with environmental assessment receiving a D, National Energy Board modernization getting a B-, Fisheries Act reforms getting a B, and the Navigation Protection Act section flunking the course.
On the plus side, there is much room for improvement, and government has made it clear that this is a discussion paper, not a decision document. Submissions and comments on the Discussion Paper are due August 28.
The Discussion Paper outlines five principles that will guide changes it makes to the four environmental laws:
- Fair, predictable and transparent environmental assessment and regulatory processes that build on what works;
- Participation of Indigenous peoples in all phases that advances the Government’s commitment to the United Nations Declaration on the Rights of Indigenous Peoples and reconciliation;
- Inclusive and meaningful public engagement;
- Timely, evidence-based decisions reflecting the best available science and Indigenous knowledge; and
- One project – one assessment, with the scale of assessment aligned with the scale and potential impacts of the project.
Environmental Assessment
This section comprises the majority of the paper, taking up 12 of the 15 pages devoted to substantive issues. The section addresses seven main issue areas:
- Addressing Cumulative Effects
- Early Engagement and Planning
- Transparency and Public Participation
- Science, Evidence and Indigenous Knowledge
- Impact Assessment
- Partnering with Indigenous Peoples
- Cooperation with Jurisdictions
The Good
A key positive proposal in the Discussion Paper is for a single environmental assessment agency to be responsible for all environmental assessments (however, see below for concerns about the related proposal for regulators like the National Energy Board to be involved as joint reviewers).
Many participants in the EA review called for a greater emphasis on regional and strategic assessment – which look at the “bigger picture” and consider cumulative effects of various activities and policies – and it is heartening to see this section appear so prominently in the paper. The paper proposes four welcome strategies for addressing policy issues and the cumulative effects of multiple types of development:
- Developing and strengthening national environmental frameworks like the Pan-Canadian Framework for Clean Growth and Climate Change (PCF);
- Conducting strategic assessments to determine how to apply those frameworks at the project level;
- Conducting regional assessments; and
- Developing an integrated open science and data platform.
Another positive suggestion is to eliminate the standing test applied by the NEB to determine whether or not members of the public should be able to participate in assessments. To make public participation more meaningful, the Paper proposes engaging the public in a two-way dialogue, improving participant funding programs, creating more user-friendly online public access to project information, and establishing more inclusive monitoring and compliance activities. Further, the paper suggests greater transparency on reasons for decisions and information on how decision-makers considered public input, as well as an open science and data platform.
To achieve more inclusive and robust assessments, there would be a requirement for an early planning and engagement phase to help design project proposals and assessment processes. This phase, which many groups have supported throughout the EA review, would also help determine how to incorporate stakeholder interests and consider Indigenous rights, and establish timelines for reaching a decision. There would also be a “Gender-Based Analysis Plus” in assessments, and a requirement to consider impacts on Indigenous peoples.
Finally, the paper proposes measures to recognize Indigenous rights, jurisdiction and decision-making, including by “seeking to achieve free, prior and informed consent through processes based on mutual trust and dialogue,” as well as incorporating Indigenous knowledge through tools co-developed with Indigenous peoples.
The Concerns
As the Discussion Paper doesn’t go into detail, most of the concerns are related to lack of explicit positive direction, rather than problematic proposals. A key example is that there is no mention of sustainability assessment. There have been numerous calls for a fundamental shift in the focus of EA from “how to make bad things less bad, and whether residual harms can be justified by short-term economic gains,” to “let’s choose the best option for providing the greatest amount of equitably distributed net environmental and human benefits.” Unfortunately, the Discussion Paper lacks any mention of means to address this concern.
Instead, the Discussion Paper simply proposes adding economic, social and health considerations to the environmental ones already examined – without any safeguards to ensure economic interests do not trump environmental needs.
Groups like West Coast advocated for a sustainability approach that uses decision-making criteria and trade-off rules to ensure that projects make a net contribution to sustainability without trading significant environmental harms for economic benefits. The EA Expert Panel recommended a similar approach.
Instead, the Discussion Paper makes no mention of a net contribution to sustainability, or safeguards against environmental trade-offs. Rather, it appears to preserve the current decision-making structure that allowed Cabinet to approve the Site C dam against the recommendations of its jointly-appointed review panel, and approve the Northern Gateway oil pipelines and tankers project despite obvious significant risk to marine environments, Indigenous peoples and non-Indigenous communities.
While there is mention of a strategic assessment regarding climate change, the proposal is for an assessment of the Pan-Canadian Framework, when it should be of the longer-term 2050 Paris Agreement obligation (the Pan-Canadian Framework only applies up to 2030). There is also no mention of a legislated climate test, which is critical to ensuring that projects and strategic undertakings (like government programs) consider all relevant climate information and keep Canada on track to achieving its climate commitments.
Also, while the attention to regional and strategic assessments is welcome, the Discussion Paper is silent on whether they will be required by the law, or whether there will be efforts to secure sufficient funds to carry them out. The Paper also makes no mention of restoring mechanisms to “trigger” environmental assessments based on potential impacts and other laws. Doing so would help ensure oversight of at least some of the thousands of projects that fell off the radar in 2012.
Other concerns arise from explicit direction in the Discussion Paper. For example, decision-making would continue to be based on an undefined “public interest” test, and decisions would still be made by Cabinet, behind closed doors. The early planning phase would be “led by proponents with clear direction from government,” when an early planning phase should have the authority involved to ensure processes are run properly.
Troublingly, the Discussion Paper proposes that offshore regulators (including the NEB) be involved in “joint assessments” with the new assessment agency. This approach sounds no different than the pre-2012 practice of appointing joint review bodies comprised of the regulators and assessment authority, like the controversial Enbridge Northern Gateway assessment.
Finally, the government proposes keeping legislated timelines, as well as allowing federal assessments to be substituted by the provinces – two of the more controversial changes made when the laws were weakened in 2012.
Section 2: Modern Energy Regulation
At only one page, the section on the National Energy Board provides only some high-level insights into what government is proposing regarding changes to the mandate, governance, decision-making and operations of the NEB, and improving Indigenous participation. With a grade of B-, while it does contain some gaps, overall it is a step in the right direction.
The Good
For the NEB’s mandate, the Discussion Paper recommends improved use of existing venues for policy discussions, such as Generation Energy, and developing a separate model for delivering energy information. It suggests that the NEB Act explicitly include environmental, safety, social and health considerations in determinations of “public interest,” and increasing public participation opportunities, enhancing participant support and introducing a landowners’ advocate.
There would be alternative dispute resolution and other adjudicative processes, information would be made publicly available online, and safety and security measures would be enhanced. Regarding governance, the Discussion Paper follows the NEB Expert Panel’s recommendation to separate the roles of the Chief Executive Officer and Chairperson, and creating a corporate-style executive board.
While the NEB would remain in Calgary, there would no longer be a residency requirement for the Board and Hearing Commissioners. The diversity of those members should be enhanced, including through increased Indigenous representation and expertise in Indigenous knowledge.
The Concerns
While many of these recommendations are welcome, more details are required. Absent from the Discussion Paper is any mention of a statutory right to appeal decisions, and as mentioned above, retaining the NEB’s authority over environmental assessments is contrary to calls from across the country to limit its role in assessments to that of expert advisor. Also, the Discussion Paper is silent on whether and how the NEB will consider climate in its regulatory and energy reporting functions.
Section 3: Restoring Lost Protections to the Navigation Protection Act
Despite the title, this section fails to suggest restoration of the legal protections lost for the vast majority of Canada’s rivers and lakes in 2012. Instead, the Paper follows the disappointing recommendations of the Parliamentary Standing Committee on Transport (which we’ve written about previously) and proposes improving the process for adding navigable waters to the list included in the Act, which currently protects less than 1% of Canada’s waterways.
Instead, the Paper proposes regulating obstructions and certain classes of works on waterways, and developing a complaint mechanism to address public concerns about the right of navigation. Proponents would be required to provide notice and opportunities for consultation on works on any navigable water, but what that consultation would look like is unclear.
On a positive note, the Discussion Paper proposes incorporating Indigenous knowledge in decision-making, facilitating early and regular engagement and participation of Indigenous peoples in NPA processes, and involving Indigenous peoples in monitoring, enforcement and decision-making of activities within their territories.
Section 4: Enhanced Protection for Canada’s Fish and Fish Habitat
The Good
This section of the Discussion Paper received the highest grade in our report card, with a B overall. Happily, it proposes restoring the former protection of harmful alteration, disruption or destruction (HADD) of fish habitat without approval, although does not clarify whether that prohibition would apply to activities as well as projects. It also suggests developing standards and codes of practice, enhancing enforcement powers, clarifying when Fisheries Act authorizations are required and building the capacity and expertise to protect fish and fish habitat. While it mentions clarifying the factors considered in decision-making, it does not mention what those factors would be.
In addition to increasing protections, it proposes a number of measures related to planning and integrated management. For example, there would be the incorporation of resource management and planning principles such as ecosystem-based management, support for early and broad engagement in planning and management activities, and the identification of important habitats.
There is much mention of collaboration, including for identifying restoration and rebuilding priorities, conserving and enhancing fish habitat, and developing scientific expertise. Welcome proposals include strengthening federal leadership, cooperation and communication with other orders of government, and the establishment of a collaborative advisory committee on fish and fish habitat protection. Finally, as with the other sections, the Paper suggests providing transparent access to information about projects and activities that impact fish and fish habitat, through improved reporting, strengthening monitoring, and making relevant information available in a timely manner.
The Concerns
Absent from the Discussion Paper is any mention of making sustainability the foundation of the Fisheries Act, or mention of including legal requirements to rebuild fish stocks.
Conclusion
While the sections of the Discussion Paper on the Fisheries Act and National Energy Board are encouraging (although light on detail), the main section on environmental assessment reform is disheartening. Also, without fully restoring protections under the Navigation Protection Act – and with no mention of environmental assessments of projects that require NPA or Fisheries Act authorizations – means that the Paper falls short of the government’s commitment to restore lost protections.
Overall, while there is a lot to work with in the Discussion Paper, much needs to be done to bring the environmental assessment proposals and other recommendations in line with the government’s commitments to restoring lost protections and public trust in processes.
Take action
The federal government is seeking feedback on its Discussion Paper until August 28th, 2017. Will you take a moment to send a message to your MP and Cabinet Ministers?
Click here to take action and demand a stronger, fairer environmental assessment law for Canada.
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Top photo: Meeting with the Minister of Environment & Climate Change, Hon. Catherine McKenna, to discuss ways to strengthen Canada's proposals for environmental assessment reform. (Anna Johnston)