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Federal Green Party leader Elizabeth May and NDP deputy environment critic Linda Duncan shared a common response to the passage of Bill C-69 — which represented a change to modernize how projects such as pipelines, hydro dams and mines are reviewed — in the House of Commons on Wednesday.
In a word, they called it “appalling.”
“It was really undemocratic. It is a total missed opportunity,” said Duncan, who resigned from the Standing Committee on Environment and Sustainable Development over its handling of the bill.
“It was the most appalling process I’ve ever been through in my time in environmental law,” Duncan told The Narwhal in an interview. Duncan has worked in environmental law for 45 years.
The bill will replace the Canadian Environmental Assessment Agency with the Impact Assessment Agency of Canada.
Prime Minister Justin Trudeau’s Liberals came into power on a promise to “restore lost protections” and implement “modern safeguards” after the Stephen Harper government rolled back key environmental laws in 2012, including reducing public input.
Canada’s environmental assessment laws have been criticized for being weaker than those in the U.S. and failing to consider the cumulative effects of projects, Canada’s international climate change commitments and the constitutional rights of Indigenous people.
These gaps have contributed to dysfunction in decision-making on major natural resource projects, leading to protests such as those around the Trans Mountain pipeline and the Site C dam.
“Over time, we have slid backwards,” Duncan said. “This was an opportunity to put in place — finally — a strong federal impact assessment process and it’s a missed opportunity.”
Duncan noted the Liberals have not turned down a major project since taking power nearly three years ago. “And this law is not going to change that,” she said.
May said that before 2012, 4,000 to 5,000 projects a year were screened through the federal process each year. After Harper’s changes, that number was reduced to closer to 25.
“I don’t think that’s adequate,” May told The Narwhal. “Small projects not making the nightly news are sometimes the ones that need to be screened to make sure they’re not having a negative environmental impact.”
Bill C-69 doesn’t fix that problem, which May calls a “tragedy.”
“If you have a major reform effort and it’s bad, you’re not going to get back to it again for five to 10 years.”
Between 1975 and 2012, only two projects reviewed federally were rejected, May noted.
In a sign of how polarized natural resource debates have become in Canada, the Conservatives also panned the new Impact Assessment Act, calling it a “death knell” for natural resource projects.
Amendments improved bill C-69 — but is it enough?
Other environmental experts gave the bill cautious praise, after several amendments were made to improve the new law — but even they warned the devil will be in the details.
“The bill is far from perfect, but with these amendments we feel more confident that Canada’s new impact assessment regime will help ensure sustainability and avoid decisions that put politics ahead of science and environmental protection,” said Anna Johnston, a staff lawyer at West Coast Environmental Law.
“We were pleased to see important additions made to the Canadian Energy Regulator Act at the committee stage, including the requirement to consider climate obligations in the review of all energy projects,” said Nichole Dusyk, postdoctoral fellow at the Pembina Institute.
Johnston said crucial amendments were made to ensure decisions are no longer made in a black box. Now cabinet must make its determination based on five factors (not political considerations) and must provide a detailed rationale for the decision.
“There will be a lot more transparency in decision-making,” Johnston told The Narwhal.
The factors cabinet will consider in determining whether a project is in the public interest include the extent to which the project contributes to sustainability, the impact the project may have on the rights of Indigenous peoples and the extent to which the effects of the project hinder or contribute to Canada’s ability to meet its climate change commitments.
Gaps in Bill C-69 include what projects will be reviewed, discretionary powers
One of the biggest gaps in the new bill is a lack of clarity around which projects will actually be reviewed under the new Impact Assessment Act.
“The government has not released a draft list of projects that will be subject to Impact Assessment. Unless the list is significantly expanded, the Impact Assessment Act will ultimately do little to improve on the status quo and will not tackle cumulative environmental effects,” said Joshua Ginsberg, director of legislative affairs at Ecojustice.
Oilsands projects could still be exempted from the federal review process, for instance.
“The new laws will only be as effective as their implementation,” Ginsberg said.
Another major area of concern is the amount of discretion left to government.
“C-69 is just rife with discretion. Interestingly, Conservatives and industry are also expressing concern about that,” the NDP’s Duncan said.
Johnston said a good example of the amount of discretion allowed for in the bill deals relates to public participation.
“It says there will be meaningful public participation, but we don’t know how often the public will be engaged, how long the engagement periods will be, how much funding they’ll have, so there’s still a lot still to flesh out in the regulations,” she said.
Jamie Kneen, communications coordinator for MiningWatch, said the amendments “mildly improved” the bill but said “there’s a lot of wiggle room in there still for arbitrary decisions.”
Some of his biggest outstanding concerns include how often regional assessments (which look at the cumulative impacts of many projects in one area) and strategic assessments (which look at how policies like climate change ought to be applied) will actually be utilized — because they aren’t mandated.
“Those kinds of assessments either won’t happen or will be very limited in their scope,” Kneen said, pointing to the Salish Sea and the Gulf of St. Lawrence as places in need of regional assessments.
Rights of Indigenous peoples not fully incorporated
For Duncan, her biggest concern is that amendments to include the United Nations Declaration on the Rights of Indigenous People more prominently in the bill weren’t passed.
“They talk a big line about signing onto international treaties and then when it comes to actually instituting it in domestic law, there’s no commitment,” Duncan said.
“Most of our major resource projects are occurring on or impacting Indigenous peoples, their lands and their waters.”
Ball in Senate’s court
Duncan and May hold out hope that the bill may be improved in the Senate, with Duncan pointing to four Indigenous members of the Senate who she has shared her amendments regarding Indigenous rights with
“The ball is in their court now,” Duncan said.
Johnston, meanwhile, is concerned that the bill may not make it through the Senate before the next federal election 16 months from now.
“With the marijuana bill being knocked back and forth, there’s the potential that Bill C-69 could be held up so long that it actually doesn’t pass until after the next election, in which case we’re back at square one,” she said.
But square one might not be the worst spot, given the flaws in the bill, according to May.
“If it didn’t pass, I wouldn’t be heartbroken,” she said.
Duncan hopes the Senate will travel and talk to people across Canada before passing the bill.
“[The Liberals] had a golden opportunity to put in place a credible review process,” Duncan said. “So many people put their heart and soul into coming up with a strong law. Very little of it was listened to.”
