Recently the federal Ministers of the Environment and of Natural Resources have publicly confirmed that major changes may be in the works for federal environmental assessment (EA). And by all indications Canadians should be worried. Based on statements made in an open letter released January 9th, federal Natural Resources Minister Oliver appears to view the democratic right of citizens to be heard and the constitutional right of First Nations to be honourably consulted about, for example, large inter-provincial oil pipeline and tanker terminal projects as merely ‘exploiting loopholes’ in and ‘hijacking’ the regulatory process (which is designed to allow citizen participation) to achieve ‘radical’ agendas.
The 7 Year Review of CEAA – allegedly complete in just 7 weeks
We actually agree with Minister Oliver that the regulatory process currently in place under the Canadian Environmental Assessment Act (CEAA) is “broken” and that “it is time to take a look at it”. In fact, Parliament was supposed to do exactly that in 2011 when the federal government was legally required to begin a formal, comprehensive seven year review of CEAA. The House of Commons Standing Committee on Environment and Sustainable Development (comprised of Members of Parliament from three of the parties represented in the House of Commons) began a so-called ‘review’ of CEAA in late October 2011, but ended its review abruptly and with virtually no notice in November after meeting for just nine short sessions (a drastically insufficient amount of time for MPs to undertake a thoughtful, comprehensive review of such a large and admittedly over-complex set of legislation and regulations). In those meetings the Committee heard presentations from many industry groups, just one provincial government and one federal agency, and – relative to industry representation – only a handful of groups or individuals who were permitted to make brief comments on the critical issues of public participation, sustainability or Aboriginal Title and Rights issues.
Even before the Committee decided to prematurely abort its hearings on and review of CEAA, West Coast wrote to the Committee Chair and the Minister of the Environment voicing our shock and disappointment with the cursory nature of the review and its lack of openness and transparency (see our November 18, 2011 letter, here). For instance, the Committee met several times in camera; members of the Committee who were from non-majority parties were not informed of the process the Committee was following (if any); the draft report that the Committee’s analysts have now presented to the Committee – and the Committee will at some future point present to Parliament – is being kept confidential; and briefs submitted to the Committee by interested parties who were lucky enough to have heard about the process before it was terminated are still being kept confidential (thanks to the recently de-funded Canadian Environmental Network, some of the submissions can be accessed here).
Many groups, including West Coast that had previously received invitations to present in person to the Committee (and which historically has been due process) have thus far been denied an opportunity to do so; fortunately we are among the few who were able to pull together a written submission under the short two-day notice we were given near the end of November.
West Coast’s submission to the Committee, which you can find in full here, focuses on the need for the federal government to rebuild and affirm a strong role in environmental protection and environmental assessment in particular that honours federal constitutional responsibilities while still establishing efficient and cooperative relationships with provincial EA regimes.
The rush to ‘fix’ environmental assessment
We agree that Canada’s EA laws need a lot of work, and could be reformed so that they can better serve the interests of the public, industry, First Nations and the environment. We do not, however, think that rushing to further roll back EA achievements made in the past two decades, in which West Coast has played a part, is the way to achieve long term solutions for anyone. In his recent open letter, Minister Oliver comments specifically on delays and fairness and independence in EA:
Delay comes from all sides and must be solved from all sides
On delays, Minister Oliver states that many projects have been delayed too long. While we do not think projects should be unduly rushed through EA and we insist that there be reasonable time and resources provided for the public and for First Nations to fully participate in the process – where participation is desired – we do not think anyone benefits from pointless delays. Unlike Minister Oliver, however, we see those delays more often than not being caused by proponents where they have not provided adequate information to the government body under whose jurisdiction the EA is being conducted. As a recent example, the Joslyn North tar sands project was delayed for a year and a half during its EA because the proponent failed to initially provide the Canadian Environmental Assessment Agency with all of the information it should have known it required from the onset to carry out the assessment.
Minister Oliver uses a peculiar selection of examples in his January 9th, 2012 open letter to attempt to demonstrate his point about delay; however, anyone would agree the Mackenzie Valley Gas Pipeline project cannot be fairly compared to a railway built two centuries ago. Moreover, in his letter, he conveniently omits the fact that the pond ice rink that he laments took two whole months to approve was in Banff National Park, Canada’s first National Park and one of our oldest protected areas.
Independence has to start with a neutral and independent assessor
On independence, the federal government rightly states that any environmental review should be fair, independent, and make objective determinations. Again, no argument from West Coast on these principles. But we do take issue with how they are actually being applied: with respect to the way the Enbridge pipeline EA review process is coming along, the National Energy Board and its Joint Review Panel (JRP; the body that will make the final decision on this project) may have difficulty maintaining a perception that it is neutral and free of bias whenare being pressured by the federal government and various federal Ministers who have explicitly stated they are “expecting a positive decision” though there “may be conditions attached and so on.” How is it fair for the federal government to pressure the “independent” assessor? And, simultaneously, for it to insinuate that the over 4,000 people and organizations who have signed up to exercise their democratic right to have their voice heard about the proposed project – as is enabled by the federal EA process - are causing an unnecessary delay? The process needs to maintain its independence; by predicting outcomes and intervening with not-so-veiled ‘directions’ on how the National Energy Board should do its job, the federal government is potentially doing a disservice to the rule of law.
Hasty amendments now could result in additional delays later
In the past several years the federal government appears to have been retreating from its responsibility over environmental protection and assessment. The result is that the federal EA process bears less and less relation to its stated goals and purposes, which include achieving sustainable development; providing an effective means of integrating environmental factors into planning and decision making processes in a manner that promotes sustainable development; and, facilitating public participation in the EA of projects. In particular, the federal EA scheme currently does not live up to the stated goal of exercising leadership within Canada and internationally in anticipating and preventing the degradation of environmental quality while ensuring compatible and sustainable economic development.
If amendments are made to EA laws that further erode the process, limit public participation, fail to meaningfully and appropriately involve First Nation governments and Aboriginal groups as decision-makers, and implement a re-weighting of economic, environmental and social considerations, it likely will end up costing industry and government (and thus the public) more in the long term. The likely result of a retreat from responsible environmental protection, assessment and management will include increased delays due to conflict and lawsuits (especially where constitutional rights and public concerns are not adequately addressed), species extinctions, loss of natural life support systems, and other ecosystem failures.
Done correctly, EA is more than a bureaucratic process. EA can be an effective long term planning tool to assist the government in making decisions that recognize environmental and societal values, identify alternatives for human uses of and development of resources, prioritize how resources are used within ecological limits and advance the kind of Canada in which we believe the majority of Canadians want to live. As a central part of environmental decision making, EA can and should be a process that helps to positively reshape the relationship between the Crown and Aboriginal peoples, and recognize the rights of Aboriginal groups to make decisions about what takes place in their traditional lands. Strategic investments in EA now will result in greater efficiencies in assessing development projects and greater long-term certainty for proponents, Aboriginal governments and peoples, and the public alike; erosion of environmental protection and CEAA in particular will only result in costly delays and greater uncertainty for all Canadians.
“Radical” ideas
Call us radical, but we believe that a more efficient, cooperative and predictable EA process is achievable - one that will also deliver better results, enhanced environmental protection and better public participation and First Nations inclusion. The current system is broken and it does need fixing. It cannot be ‘fixed’ by regressing decades and recklessly dismantling the EA regulatory system.
The solutions to the current shortcomings and inefficiencies in EA are to be found in thorough, well reasoned legal and scientific research and law reform proposals that have been consulted on widely among legal, environmental, industry and government professionals. This is what we are working on at West Coast Environmental Law and we welcome open, constructive conversations with government, industry, First Nations, ENGOs and the public to strengthen the value of our work.
By Rachel Forbes, Staff Lawyer, with research from Josh Paterson, Staff Lawyer