Environmental assessments are supposed to guard against pollution, but changes to key pieces of legislation have crippled the process. To fix it, the Liberal government has to pull up the floorboards and retool several laws — a months-long endeavour that only began recently, with public consultations on how to restore trust in environmental assessments.
“Our natural heritage is hugely important to Canadians,” says Karen Campbell, an environmental lawyer at the non-profit Ecojustice. “With Canada’s 150th anniversary coming up, we need to think how we are going to maintain that heritage for the next 150 years and beyond.”
Until 2012, any project involving federal lands, permits, money, or jurisdiction required an assessment by the Canadian Environmental Assessment Agency (CEAA). This is no longer the case. Now, only major projects such as mines and quarries face this scrutiny. Canada’s Commissioner for the Environment and Sustainable Development concluded in 2014 that the rationale for determining what kind of developments required assessments under the new Act was “unclear.”
Since the summer, a four-person panel of experts, assembled by the federal government, has been gathering information from across the country, holding consultations in each province to find flaws in the system. When their tour wraps up this month they’ll hand over recommendations to the Minister of Environment and Climate Change.
The Conservatives tore holes in many of Canada’s environmental laws in 2012 when it passed the omnibus bills C-38 and C-45. Bill C-38 alone (dubbed “Environmental Devastation Act” by the Green Party) made changes to 70 of those laws, including the National Energy Board Act, the Navigation Act, and the Fisheries Act. The changes ranged from the withdrawal of protection for 99 per cent of Canadian waterways to the repeal of the Canadian Environmental Assessment Act, which was replaced with a new piece of legislation under the same name. “It created a real mess that the Liberals now have to clean up,” Campbell says.
Just 19 assessments have been conducted under the 2012 Act, according to Anita Szerze, communications adviser for the CEAA. She adds that from April 2008 until the new Act came into force, decisions were issued for 17 comprehensive studies and seven review panels, two different types of assessment. But thousands of screenings — a third type — were initiated in that time as well, with 2,807 in the 2011–12 fiscal year alone. The Conservatives eliminated screenings, which were used to assess a wide variety of projects, when they adopted the new Act. “We’ve hit a new low,” Campbell says. “We are conducting fewer environmental assessments than we ever have.”
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Today, federal environmental assessments look only at a proposed project’s effects on fish and other aquatic species, migratory birds, federal lands, and Indigenous communities. Under the old Act, its potential impact on all aspects of the environment — land, air, and water — as well as on living organisms were typically assessed. “What we are seeing is a narrowing of scope,” Campbell says.
Moreover, time limits were introduced with the 2012 Act, which stipulated a completion window of one to two years for each assessment, no matter how large or complex the project in question.
In some cases where federal environmental assessments are deemed necessary, the CEAA does not conduct a review — instead, a third party is tasked with looking at the project. Such has been the case with major oil pipeline projects including Energy East and Kinder Morgan’s Trans Mountain proposal. Since 2012, the National Energy Board — Canada’s federal energy regulator — has been responsible for conducting environmental assessments of pipeline projects, and that’s been the source of some controversy.
“Environment and Climate Change Canada or the Canadian Environmental Assessment Agency should be doing environmental assessments, not the National Energy Board,” says Teika Newton, executive director of the advocacy group Transition Initiative Kenora.
Environmentalists and other critics have censured the NEB for examining a limited number of potential impacts in its assessments, and particularly for refusing to consider the cumulative effects of greenhouse-gas emissions associated with pipelines. “The NEB doesn’t take climate change into consideration when it makes major decisions,” Newton says. “We cannot justify new infrastructure like pipelines that is clearly not in line with the Paris Agreement.” (The NEB contends that it is not responsible for examining the overall impacts of pipeline projects on climate change.)
Trudeau’s promise of a new “nation-to-nation” relationship with Indigenous communities adds an additional layer of complexity to the government's review of the environmental assessment process. The touring panel of experts will hold a separate day of consultations for Indigenous presenters in each city it visits, but there are differing points of view on how those consultations should be conducted.
“First Nations will support this [review] only if consultation processes are in line with Free Prior and Informed Consent as outlined in the UN Declaration on the Rights of Indigenous Peoples,” said Ontario Regional Chief Isadore Day in a statement.
“The federal government’s recognition of First Nation environmental jurisdiction must be honoured before we can commit to any high level discussion at a Nation to Nation level because frankly, we are apprehensive of more broken promises,” Day said.
The UN General Assembly adopted its Declaration on the Rights of Indigenous Peoples in 2007. The underlying principle is that the consent of Indigenous communities for developments that could affect them must be procured before those developments can go forward. The federal government has pledged to implement the declaration, but it’s unclear whether it will become part of Canadian law.
Stewart Myiow, a Mohawk wolf clan member from Kahnawake First Nation near Montreal, says the review’s Indigenous consultations are counter to the whole idea of a nation-to-nation relationship. “Nation-to-nation means you talk to me, not my people,” Myiow, who sits on his clan’s traditional council, says. “We are not Canadians.”
Derek Leahy is a freelance environmental writer.
This story has been updated from an earlier version to reflect that thousands of screenings were initiated in 2011-2012.
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