Catherine McKenna

Remember When Harper Ruined Canada’s Environmental Laws? Here’s How the Liberals Want to Revamp Them

Remember that whole fiasco in 2012 when Stephen Harper basically, you know, eviscerated most of Canada’s environmental laws in one ginormous budget bill?

People actually called it the ‘Environmental Destruction Act.’ People took to the streets. People, aka our members of parliament, pulled all-nighters proposing amendments to the bill, but Harper just laughed in their faces while playing the keyboard. Or something like that.

So yeah, things got pretty grim there for a minute (aka six years).

But not to worry, a young fella named Justin Trudeau came along and campaigned hard to restore environmental laws. He promised science. He promised consideration of climate impacts. He promised to restore the public trust in the environmental assessment process. Easy peasy, right?

After getting elected, the Liberals set off to do just that and for the last 14 months they’ve been hustling.

Now, we know the idea of an “environmental assessment review” isn’t super sexy, but the Liberals hit it with such enthusiasm we just couldn’t look away.

They sent expert panels from coast to coast to hear Canadians talk about science and Indigenous rights and climate change and how really if we just had a more grown-up way of assessing the environmental impacts of projects, maybe we wouldn’t have such fractious debates about mines and pipelines and dams (oh my!).

Today, finally, we found out  what the government is proposing as a solution to this whole thang. And well, it’s a work in progress (you know something’s complex when the government creates a 600-word infographic to try to simplify it) but we spoke to a whack of experts and here’s what we can say so far.

There are some good signs

Everyone loves a good sign, right? Scientists, academics and legal experts looking at today’s bill say the fact the government explicitly mentions sustainability, Indigenous rights, climate change, gender-equity and cumulative impacts of projects is, indeed, a good sign.

The bill introduces a new Impacts Assessment Act (that will replace the former Canadian Environmental Assessment Act), a new Canadian Energy Regulator Act (that will replace the National Energy Board Act) and proposes amendments to the Navigation Protection Act. A revamped Fisheries Act was announced earlier this week, to largely positive fanfare.

“There’s a lot of good stuff in there,” Anna Johnston, staff counsel with West Coast Environmental Law, told DeSmog Canada. “They’re making some important changes to some of the things that were most badly broken in the old laws.”

The new law would require major projects be judged according to new standards that consider “the environmental, health, social and economic effects of designated projects with a view to preventing certain adverse effects and fostering sustainability …taking into account the rights of the Indigenous peoples of Canada.”

Previously there was no overarching sustainability or Indigenous rights standard against which major decisions on natural resource projects were measured. Instead projects were assessed for their “significant, adverse environmental impacts.” In other words, they were looking for projects to be less bad — but not necessarily, y’know, good.

So this is a big change, but also raises a lot of questions about just what things like ‘sustainability’ and ‘cumulative impacts’ mean and how decision-makers like Environment and Climate Change Minister Catherine McKenna will weigh those concerns against economic impacts.

“It’s great to see in this new law that there’s actually specific requirements to consider climate and sustainability,” Johnston said. “But I still don’t see anywhere a safeguard against trading off environment for economy.”

Ah yes, balancing the ol’ environment and economy

A lot of ink has been spilled…or pixels have been pixelled…over just what constitutes balance between environmental harms and economic goods.

But this new law digs into that. The creation of the new Impacts Assessment Agency and the Canada Energy Regulator is meant to help address more well-rounded questions of the public’s interest than their predecessors the Canadian Environmental Assessment Agency and the National Energy Board respectively did.

“Since the dawn of environmental law legislation in Canada in the 1970s, we have used our environmental assessments of major resource development projects, on a project by project basis, as proxy forums for having these discussions about how to balance economic development, environmental protection and, increasingly along with that, recognition and protection of Indigenous rights and interests,” Jason MacLean, assistant professor at the University of Saskatchewan College of Law, told DeSmog Canada.

“We’ve never truly developed an integrated national policy framework to, as a country, lay out a strategy, lay out a vision. Instead, we’ve gone project by project and in that…we’ve been prioritizing economic development over environmental protection.”

While the National Energy Board was initially created to facilitate a cross country natural gas pipeline, the new Canadian Energy Regulator has a more encompassing responsibility to keep energy projects safe and reliable while respecting Indigenous rights and engaging with the public in a transparent manner

Could be a game-changer.

Weeding out bad ideas

Other good signs: the new law is meant to include a lot more public participation and Indigenous consultation in projects before they enter the assessment phase. The idea being here that bad projects will be weeded out before they hit the formal review phase if they’re not a good fit for communities and First Nations.

The Impacts Assessment Act also explicitly dictates that traditional Indigenous knowledge is brought into the process and emphasizes more public participation and engagement.

This is a big turn around from the 2012 changes, which sought to limit public participation — a move that resulted in a lot more community and Indigenous legal challenges after the fact.

Let’s get regional

The new legislation places an emphasis on regional impact assessments — studying how one new project will impact current and future projects in that same region and how unique ecosystems may play into whether or not a specific region is appropriate for, say, a pipeline or three LNG export facilities.

But “the act needs to go a few steps further than it currently does with regional assessments,” Justina Ray, senior scientist with the Wildlife Conservation Society, told DeSmog Canada.

Ray said the inclusion of regional impacts assessments in the legislation was a “glimmer of hope.”

“That is significant in that it was never there before and in order to really effectively assess and stave off cumulative effects you have to take a regional perspective,” Ray said, adding impacts on ecosystems, habitat for species and climate change all factor into those cumulative impacts.

Yet those region specific impacts assessments are discretionary.

“You wonder how things will progress and how realistically,” Ray said. “If the provinces are gung-ho on regional assessments, how will they be implemented at the end of the day?”

Much mystery remains …

The new bill is long — over 341 pages — and yet it still doesn’t cover everything.

“Understanding legislation is hard,” Aerin Jacob, scientist with the Yellowstone to Yukon Conservation Initiative, told DeSmog Canada. “And there’s only so much you can put in a bill and that’s normal.”

“But the devil is in the details. So how the legislation is rolled out and what policy and regulations comes along with it, that’s where a lot of the clarity will come from,” Jacob said.

“I don’t think we can say this legislation is a homerun by any means.”

For example, on the issue of cumulative impacts assessments, there is no clear outline of impacts thresholds that cannot be crossed, Jacob said.

“Without having an ecological threshold — or social or health impacts threshold — written into the legislation we don’t know when we’ve passed them.”

Specific benchmarks would be really useful in evaluating whether a project is truly in the public interest, Jacob said.

“If we know our targets for, say, greenhouse gas emissions and we have realistic estimate of what projects are going to emit…we add those up and it is exceeds targets provincially or federally, we know it’s not compatible.”
Similar thresholds could be used to avoid dangerous levels of disturbance for caribou or grizzly habitat, Jacob said.

Clear as mud

“There are some aspects of this that are better than I expected, some that are worrisome, and some aspects that are in desperate need of clarification,” Robert Gibson, sustainability assessment expert and professor at the University of Waterloo, told DeSmog Canada.

“I think some of the things about which there are mysteries are going to remain that way until there are decisions by the regulatory powers.”

One major uncertainty remains around what projects in particular will trigger a federal environmental assessment. The federal government plans on conducting further public consultation about what projects ought to face federal review.

“Until the regulations determine what the categories are in this case, it’s uncertain,” Gibson said. “There are competing interests and in a way it’s good that is still open to potential debate. But there’s no commitment to clarity there.”

“This is certainly better than the current law. That’s what we’d call a low hurdle in sports,” Gibson said. “So I don’t think people are going to be astonished by that.”

— With files from Jimmy Thomson

Carol Linnitt is a journalist, editor, illustrator and co-founder of The Narwhal. Carol has been reporting on energy and environmental…

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