Review of federal environmental legislation

The federal government has created an Expert Panel to review its environmental assessment processes.  Go here for more information.

David McNicoll attended a workshop on November 8, 2016.

On December 22, the Greenspace Alliance made a submission to the Panel.  It argued that, if an environmental assessment amounts to assembling short-term data assembled to support a proponent’s proposal then this is “little more than a land delivery system, unmoored from the larger environmental realities in which the project exists.”  True strategic environmental assessment “needs to be rooted in ongoing time series data that track the complex flow of appropriate ecological goods and services on which the sustainability of human communities depends and which make possible the assessment of the potential disruption of these flows brought about by the proponent’s project.”  Any individual EA “should have as its first purpose the protection of the environment, as stipulated in the Canadian Environmental Assessment Act, not primarily seek to attenuate negative impacts.“

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April 18, 2017

The federal Expert Panel issued a report, “Building Common Ground: A new vision for Impact Assessment in Canada“.  The Panel invites your comments – deadline is May 5, 2017.  They want your comments under three headings: Developing the Vision, Implementing the Vision and Additional Comments.  All comments received to date are accessible here: LetsTalkEA.ca .

Here is what West Coast Environment Law thinks about the Expert Panel’s report:
http://wcel.org/resources/environmental-law-alert/expert-panel-report-environmental-assessment-review-overview?utm_source=LEB

WCEL offers qualified support.

All submissions received in the earlier round are here: http://eareview-examenee.ca/submissions-received/.

There is also a Multi-interest Advisory Committee “made up of Indigenous organizations, industry associations and environmental groups”; its advice is here: http://eareview-examenee.ca/what-weve-heard/multi-interest-advisory-committee/.

Finally, there is an annotated compendium of the comments received, at https://www.canada.ca/en/services/environment/conservation/assessments/environmental-reviews/environmental-assessment-processes/annotated-compendium.html.  Filter for “greenspace” and you see what they took away from our submission.

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May 3, 2017

The Greenspace Alliance today responded to the Expert Panel’s Building Common Ground report.  The comment is submitted to LetsTalkEA.ca but addressed to Minister McKenna, making the point that action starts here. In addition to supporting suggestions made by WCEL, the comment reiterates that absence of data remains a critical issue.

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June 28, 2017

The government today released a discussion paper, responding to the Expert Panel’s report with changes it is considering.  It outlines “a proposed new approach to environmental assessments and regulatory reviews with a potential path for good projects to proceed in partnership with Indigenous peoples and effective, science-based, enforceable conditions, with clear timelines.”

To submit or upload comments, go here: http://www.discussionpaper.ca/. Deadline is August 28.

WCEL’s initial take:

Despite “several positive proposals,” “… the government has fallen short of the next-generation assessment principles agreed to by environmental assessment experts, Indigenous peoples, environmental groups and the general public across the country.” … “Instead, the government has proposed maintaining the status quo of politicized decisions made behind closed doors, decisions that would allow short-term economic gains to trump human and environmental health.”

A few days later, WCEL issued an 8-page report card.  It gives the proposals for environmental assessment reform a C- (average of grading across “12 pillars of next-generation EA”).  Proposals for other legislative reforms are also graded.

The Green Party of Canada has serious reservations about:

“- The government’s rejection of the National Energy Board (NEB) expert panel’s recommendations, which called for a complete overhaul of the NEB. It will remain in Calgary under its current composition despite the sound advice of the costly panel to seriously reform it and move it to Ottawa.   

– The government’s rejection of the Environmental Assessment (EA) expert panel’s recommendation to convert the Environmental Assessment Agency into a quasi-judicial board, with the sole authority for conducting EA. The government now proposes that Harper’s ‎C-38 regime of energy projects going to the NEB, Canadian Nuclear Safety Commission and offshore boards will largely remain in place.

– The government’s decision to maintain Harper’s destruction of the Navigable Waters Protection Act (NWPA), instead relying on jurisdictions to apply on a case-by-case basis to restore previously-held protections to waterways. Rather than restoring the NWPA to its previous stature, 99% of Canadian lakes, rivers and streams will remain unprotected from industrial projects.”

World Wildlife Fund-Canada’s take: The good, the bad and the ugly of the review

The good
We are pleased with restored habitat protections under the Fisheries Act. Many of WWF-Canada’s suggestions are apparent in proposed changes to the act and we’re happy that the government heard and responded to our concerns.
The bad
The review of several pieces of environmental legislation at once offers the opportunity to align decision-making around core outcomes, including carbon reductions in Canada’s climate plan. The discussion paper fails to make these vital connections, leaving cross-referencing requirements out of the Canadian Environmental Assessment Act as well as the decisions of the National Energy Board.
The ugly
The Navigable Waters Protection Act — overwritten in 2012 by the Navigation Protection Act — was an incredible piece of environmental legislation with a focus on protection in tandem with navigation. The proposed changes do not suggest that the protections lost in 2012 will be restored. Left out is consideration of environmental impacts when a proposal might impede navigation.

Media coverage

Mike De Souza, National Observer, Trudeau Liberals propose sweeping reforms to Harper-era environmental laws, June 29, 2017

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August 28, 2017

The Greenspace Alliance today submitted a comment on the Discussion paper.  It praises the reinstatement of fish habitat protection, expresses disappointment that the Expert Panel’s recommendation for a tribunal was rejected, and protests the failure to restore the protection of navigable waters as per the former Navigable Waters Protection Act.

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Recommendations from Evidence for Democracy, “Strong Foundations” [August 28]: “Recap and recommendations from scientists regarding the federal environmental and regulatory reviews identifies 8 priorities and 7 gaps that the government must address to ensure that environmental assessment has a solid foundation of science.”

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January 17, 2018

West Coast Environmental Law’s Anna Johnston provided an update of the status of these reviews. One or more bills are expected to be tabled shortly after Parliament resumes sitting on January 29.

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February 6, 2018

As expected since last June, the government today introduced Bill C-68, proposed amendments to the Fisheries Act, which will full restore protection for all fish and fish habitat, including the prohibition against its “harmful alteration, disruption or destruction” (HADD). Please go here for the details.  Includes a Before/After infographic; a cute little video is here or hear it directly from Minister LeBlanc‘s mouth.

In addition to this major turning back to the pre-Harper regime, today’s announcement also includes a promise to hold consultations on codes of practice for small and routine projects; allow creation of long-term marine refuges and short term management orders; an online registry of project decisions; and more.

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February 8, 2018

Two days later, the government tabled Bill C-69, “An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigation Protection Act and to make consequential amendments to other Acts.” The government’s media release is here.

That “Navigation Protection Act” is renamed “Canadian Navigable Waters Act” and there is a new definition of Navigable water:

Navigable water means a body of water, including a canal or any other body of water created or altered as a result of the construction of any work, that is used or where there is a reasonable likelihood that it will be used by vessels, in full or in part, for any part of the year as a means of transport or travel for commercial or recreational purposes, or as a means of transport or travel for Indigenous peoples of Canada exercising rights recognized and affirmed by section 35 of the Constitution Act, 1982, and

(a) there is public access, by land or by water;
(b) there is no such public access but there are two or more riparian owners; or
(c) Her Majesty in right of Canada or a province is the only riparian owner. (eaux navigables)
 
The “Impact Assessment Act” would replace the 2012 CEAA.
 
Media coverage
 
The Tyee, Feb 9: Jeremy Nuttall talks to Elisabeth May
Financial Post, Feb 9, Jesse Snyder: “Feds unveil major reforms to energy project reviews”
Globe & Mail, Feb 9, Shawn McCarthy: “Liberals defend overhaul of megaproject reviews”
Globe & Mail, Feb 11, Shawn McCarthy: “Environmental groups want Ottawa to toughen new energy project assessment approach”
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March 1, 2018
 
Today West Coast Environmental Law distributed its analysis of Bills C-68 and C-69.
 
On the amendments to the Fisheries Act, WCEL developed an extensive Q&A document. It raises no fundamental shortcomings.
 
On the proposed Canadian Navigable Waters Act, WCEL submits that the amendments “fail to live up to the government’s promises. More needs to be done to restore lost legal protections related to navigable waters.”  Concerns include:
 
+ The restored legal protections are narrowly focused, exclude environmental values, and in many cases are substantially weaker than the pre-2012 version of the law. ” 
 
+The new definition of navigable waters “raises questions about whether the new Act will fully protect navigation for scientific, educational or other purposes (although we expect that the courts would interpret commercial and recreational uses broadly). 
 
+ This narrower definition means that a significant number of lakes and rivers that had legal protection before 2012 will not get it back in 2018.
 
+ The new Act keeps the controversial “schedule” of navigable waters that the government considers particularly important from a navigation point of view (the 159 protected lakes and rivers). However, it also defines three categories of development that may take place on a river or lake: minor works, major works, and works which are neither minor nor major. The approvals a developer requires to build works on a lake or river will depend on both the type of development, and whether or not the water body appears on the schedule.
 
+ For projects that are not major (and not minor), and are not on schedule-listed water bodies, a developer has a choice whether to apply to the Minister for an approval (in which case the above rules apply) or to invite comments from the public on the proposed development. 
 
WCEL concludes:
 
The federal government promised Canadians that the lost protections for navigable waters would be restored. In taking an approach which focuses narrowly on navigation (when Canadian environmental laws prior to 2012 required a broader environmental approach), and by allowing developers or the Minister (depending on the circumstances) to bypass the requirements for a transparent approval process, the Canadian Navigable Waters Act fails to deliver on this promise. 
 
WCEL’s full analysis is here.
 
 
On the proposed Impact Assessment Act WCEL finds:

…on closer examination, the Bill risks simply applying a fresh coat of paint to the same old EA model. It exempts the vast majority of projects and activities from review, provides no certainty that Indigenous jurisdiction and decision-making rights will be upheld, and gives the government broad discretion to trade environmental health for short-term economic and political gains.

In a nutshell, the new IAA falls far short of what is needed to restore public trust and protect the lands, waters and air that Canadians cherish.

What projects will be assessed is not yet clear: The government has issued a 22-page discussion paper listing criteria; comments are due April 15.
 
For WCEL’s full analysis of the IAA go here.  UPDATE (March 22:)  WCEL has published a plain-language, yet fully referenced, 20-page Q&A about the proposed Impact Assessment Act (36 questions).  Bill C-69 passed Second Reading on March 19, 2018 and the House Standing Committee on Environment and Sustainable Development held its first meeting about it today.
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March 2, 2018
In Second Reading debate, Elisabeth May calls Bill C-68 “an excellent piece of legislation” but (having only enough time to comment on the proposed IAA — the government imposed time allocation) says Bill C-69 deserves an F, because key recommendations of the Expert Panel have been ignored.
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April 8, 2018
The Greenspace Alliance today submitted comments to the Standing Committee on the Environment and Sustainable Development, reiterating our comments previously made.
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April 22, 2018
WECL’s testimony before a parliamentary committee, on Bill C-69 – Impact Assessment Act
WECL’s testimony before a parliamentary committee, on Bill C-69 – Canadian Navigable Waters Act
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June 20, 2018
The House of Commons passed Bills C-68 and C-69 today and sent them to the Senate.  Here is WCEL’s media release.  The flawed Bill C-69 was significantly amended in Committee, including “limiting the role of energy regulators in assessments, better ensuring that decisions will foster sustainability, and requiring the new Canadian Energy Regulator to consider climate change when reviewing pipelines, offshore petroleum projects and transmission lines.”
The regulations associated with the new Impact Assessment Act (part of Bill C-69) are still at the consultation stage.
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August 23, 2018
Here is an op-ed by Martha Hall Findlay (President and CEO of Canada West Foundation): “Bill C-69 needs a Reboot” (Globe and Mail, Aug 23, 2018).  She calls the Bill “deeply flawed” and is unhappy that its provisions do not take into account Canada West’s recommendations.  WCEL’s Anna Johnston replied, providing a mild defence.
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September 18, 2018
The President and CEO of the Mining Association of Canada penned an op-ed (“Bill C-69 marks a step forward for Canada’s mining sector”- Globe and Mail, Sep 18, 2018) expressing hope that the Senate will pass the Bill soon.
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April 2, 2019
The debate about Bill C-69 rages on.  The Senate Committee on Energy, the Environment and Natural Resources will travel the country April 23 to 26 for hearings.  On April 2, under the gavel of Senator Rosa Galvez, it heard from six witnesses who each offered important perspectives and significant amendments to the Bill.  Several Q&As also shed light on issues.  Here is the breakdown of the 2-hour meeting:
* at 17:02: Steward Elgie, Smart Prosperity Institute
* at 17:14: Richard Lindgren, Canadian Environmental Law Association
* Q&As at 17:20
(Break for a vote, 17:37 to 17:57)
* at 18:18: Anna Johnston, West Coast Environmental Law
* at 18:24: Joshua Ginsberg, EcoJustice
* Q&As at 18:31, to 19:06.
* at 19:11: Martin Papillon, Université de Montréal (spoke to Indigenous issues)
* at 19:25: Andrew Roman, retired lawyer (for more on what Andrew Roman proposes, go here.)
* Q&As at 19:33, ending at 19:59.
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June 21, 2019
Bill C-69 received Royal Assent on June 21, but most provisions will come into force on August 28 (ref. Lawson Lundell Project Law Blog of August 14.)