Alberta Premier Jason Kenney calls Bill-69 the “No More Pipelines Act” and says he’ll take the proposed environmental impact legislation to court if it becomes law.

“This bill does not need a nip and tuck,” Kenney told Canadian senators in May. “It needs major reconstructive surgery or it needs to be put out to pasture.”

True to Kenney’s wishes, the bill — which introduces new rules for reviewing major projects like mines and pipelines following the gutting of environmental assessment legislation by the former Stephen Harper government — received far more than a nip and tuck in the Senate.

Major reconstructive surgery came in the form of 187 amendments approved by the Senate on Thursday evening, following intense lobbying led by the oil and gas industry and an in-person appeal by Kenney. The new premier travelled to Ottawa only days after he was sworn in, telling members of the Senate’s energy committee that Bill C-69 was the “culmination of a full-frontal attack” on Alberta’s economic prosperity.

But the Senate’s surgery is so extreme, with many of its wide-ranging amendments mirroring requests from the oil and gas industry, some verbatim, that environmental law experts say Canada would be better off leaving the Harper-era environmental assessment legislation in place.

“Unless the vast majority of those amendments are rejected, then it’s worse than what we have right now,” University of Calgary law associate professor Martin Olszynski said.

“What’s happened now is just ridiculous,” Olszynski, who specializes in environmental law, told The Narwhal.

“The [Senate] changes are not thought out. . .They’re essentially putting so many holes in the ship that it won’t even hold water.”

Senate amendments are ‘badly drafted’

Bob Gibson, a University of Waterloo professor in the department of environmental and resource studies, examined the fine print of every one of the Senate’s 187 amendments to Bill C-69 and wrote a detailed 20-page analysis.

He recommended that virtually all the amendments be rejected.

“A lot of the amendments are badly drafted,” Gibson said in an interview. “The amendments to me look like a large portion of it is driven by political optics more than substantive consideration.”

“I think a lot of it is fairly profoundly cynical. And I think a lot of it is ill-informed.”

Bill C-69 addresses an election campaign promise made by the Liberals to make environmental assessment credible again. The Harper government virtually dismantled Canada’s environmental assessment process, drastically reducing the number of federal assessments among other major cuts.

Following a report from an expert panel that travelled across the country, hearing from stakeholders in 21 cities, federal Environment Minister Catherine McKenna introduced Bill C-69 in February 2018, saying the new legislation would ensure “more timely and predictable project reviews” that would attract investment and development.

The 340-page bill replaces the Canadian Environmental Assessment Agency with the Impact Assessment Agency of Canada. The bill also makes changes to the Navigable Waters Act and overhauls the beleaguered National Energy Board, replacing it with a Canadian Energy Regulator.

The new impact assessment agency would review all major projects in the country, assessing not just the environmental impacts but also the social, economic and health impacts, as well as the effects on Indigenous peoples.

The bill establishes timelines for assessments and requires that impacts on Indigenous rights and culture be considered early on in the planning process.

Experts say Bill C-69 is not ‘anti-pipeline’

Both Olszynski and Gibson said Bill C-69 is neither anti-pipeline nor pro-pipeline.

“Since the current federal government bought a pipeline out of devotion to getting resources to market — and/or retaining associated votes — it’s a safe bet that they don’t intend for C-69 to be anti-pipeline,” Gibson said.

Indications are that more pipeline and oil and gas projects would be exempted from environmental review under Bill C-69 than under the existing law, Gibson said.

Olszynski pointed out that the proposed Impact Assessment Act, like all of its predecessors, is “entirely procedural in nature. It sets out a decision-making process only.”

The amendments come as members of the Red Chamber test their power to influence laws following reforms introduced by the Trudeau government that are intended to make the unelected Senate less partisan. A majority of senators now sit as independents.

The amended Bill C-69 will go to Parliament for consideration next week, but if MPs make any changes to the Senate amendments the bill will bounce back to the Senate for approval.

Typically the Senate would approve a bill at that point, but legislative deadlock is possible and Bill C-69 will die on the order paper if it has not been passed into law before the current legislative session ends (scheduled for June 21).

Many amendments are at the request of the oil and gas industry

Olszynski described the majority of the Senate committee amendments as akin to putting Bill C-69 through “some kind of incoherence-generating machine.”

“They’ve just essentially attacked various aspects, various provisions,” he said. “Much of it is at the request of the oil and gas industry, [and] some of it is from the independent senator’s group who I think failed to appreciate just how complex and interconnected all these different parts are.”

As one example, Olszynski pointed to a Senate amendment that would require the new assessment agency to respect something called a  “principle of proportionality” — involving the time and money proponents spend on studies during an assessment.

Olszynski said he is not aware of the existence of a “principle of proportionality” in environmental assessment regimes anywhere in the world.

He said it’s hard to imagine a “more uncertain” provision given that critics of Bill C-69 say they want more certainty in environmental legislation.

The idea of proportionality is bound to generate conflict, litigation and delay, Olszynski said.

“Proponents will balk at every additional study or information request, claiming disproportionality,” he wrote in an analysis of Bill C-69. “If adopted, this provision would become a major pinch point in every contentious assessment.”

Senate amendments downplay climate change considerations

The Senate amendments would also require that a project’s impacts on the environment and climate change be considered on a global level.

Before any amendments, Bill C-69 would require decision-makers to consider the extent to which a project would hinder or contribute to meeting Canada’s climate change commitments.

But projects do not have to help Canada meet those commitments. Nor would major projects be rejected if they make it more difficult for Canada to meet commitments, according to the original bill.

“When you look at even the most massive greenhouse gas emissions emitting plants they are all insignificant on a global level,” Olszynski said.

He pointed to Shell Canada’s Jackpine oilsands mine north of Fort McMurray as an example of the argument that carbon emissions from a major Canadian project should be discounted in light of global emissions. Shell argued that greenhouse gas emissions associated with the expansion — roughly the equivalent of putting 281,000 new cars on the road a year — were negligible because they only represented .5 per cent of Alberta’s total emissions.

Gibson said the “great elephant in the room” with the Senate amendments is climate change, pointing out that the science says we have to be down to net zero greenhouse gas emissions globally by 2050 to avoid catastrophic climate change.

“Understandably, the oil sector, including the pipeline interests, would much rather not have climate mentioned in the assessment law, or to have it delayed and muted by a long-extended and heavily lobbied policy exercise,” Gibson said. “They may get their wish. That is the thrust of some of the Senate amendments.”

“But that won’t delay actual climate change or associated damage and outrage. Nor will it make new bitumen extraction operations and new dilbit [diluted bitumen] pipelines a better bet for investors who can see ahead to stranded assets, or to Albertans who wonder how the Alberta economy will support their children.”

Syncrude operation in Alberta’s oilsands north of Fort McMurray. Photo: Louis Bockner / Sierra Club BC

Oil and gas industry lobbied senators intensively

Shortly after the Senate voted to accept the amendments — as proposed by the Senate committee on energy, the environment and natural resources — Kenney tweeted his approval, saying he was “very pleased.”

In a subsequent statement, Kenney noted that the amendments adopted by the Senate were proposed by the Alberta government, the Canadian Association of Petroleum Producers and the Canadian Energy Pipelines Association.

Lobbying of senators by the oil and gas industry intensified as Senate committees considered Bill C-69 and Bill C-48, which formalizes a decades-old moratorium on large oil tanker traffic off B.C.’s north coast. The Senate approved Bill C-48 on Thursday, after the bill was rejected by the Senate transport committee following ‘exhaustive’ industry lobbying.

From February 9, 2018 — the day after McKenna introduced Bill C-69 — to June 6, 2019, CAPP lobbied senators 29 times on issues pertaining to the environment, according to the federal lobbyist registry. Some of CAPP’s lobbying efforts involved multiple senators at once.

Sixteen individual oil and pipeline companies and groups also lobbied a slew of individual senators from November 2018 to the end of April 2019, reporting a total of 122 lobbying communications with senators, including with more than one senator at a time, according to the registry.

Those companies and groups included Enbridge, Imperial Oil, TransCanada and the Canadian Energy Pipeline Association.

The original Bill C-69 would improve government accountability for final decisions

The Alberta government and the oil and gas industry have also criticized Bill C-69 for allowing political discretion when it comes to making final decisions about large projects.

But Gibson pointed out that Cabinet decision-making is already “veiled from public view.” The impact assessment act is stronger than previous legislation because it sets out specific criteria for making final decisions about major projects, including consideration of the impact on Indigenous peoples, he noted.

The new legislation would compel Cabinet to provide reasons for its decisions and justify them while currently those reasons are “just a black box,” Gibson said.

“Because there’s this broad suite of things you have to look at, and because there have to be reasons set out, there is more control of the political discretion than there is in the current act and there was in the previous 1995 one.”

Harper’s environmental assessment rules ‘did not work to deliver approvals’

Yet another criticism is that Bill C-69 will slow approvals for pipeline and oil and gas projects.

But legislation introduced by the Harper government has not resulted in timely approvals for projects such as the Northern Gateway or Trans Mountain pipelines, Olszynski and Gibson both noted.

Harper’s environmental assessment legislation was broken in the sense that it gave approvals, “but they weren’t credible approvals,” Gibson noted.

“CEAA did not work to deliver approvals and shovels in the ground for major projects. The assessment process from 2012 approved Northern Gateway and approved Trans Mountain. But those approvals were not sustainable. They failed before the courts.”

“One of the objectives of the new legislation was to have more credible process that would lead to decisions that were less likely to fail in the longer haul before the courts.”

Bill C-69 sets timelines for project decisions  — a maximum of 300 days for smaller projects with fewer assessment requirements and 600 days for larger projects, down from the current 730 days.

Bill C-69 would keep Harper-era rule to scrutinize only Canada’s largest projects

Olszynski calls the unamended bill a “marginal” improvement over existing legislation. One of his main concerns is that Bill C-69 does not restore the pre-Harper era rules about which projects merit federal environmental assessment because it applies only to major projects.

Before 2012, about 3,000 environmental assessments a year were conducted at the federal level, ranging from screenings to far more intensive panel reviews.

“We’ve just had this massive deregulation on the landscape,” Olszynski said.

“You’ve essentially put a black box over 98 per cent of the activity that you used to know about. That’s what we lost. You’ve lost that understanding. . . Post 2012, the federal government only knows about the biggest projects.”

Olszynksi said while individual large projects are important “it’s the cumulative effect of all those smaller projects that are as important, if not more important, if you’re really interested in managing landscapes and managing ecosystems.”

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When it comes to the oilsands, there’s a particular gloss that accompanies industry’s presentation of in-situ extraction.

Unlike the pronounced nature of open-pit mines, with the accompanying heavy haulers and seemingly endless horizons of tailings ponds, in-situ — meaning in ground or in place — operations have a much less visible footprint.

Cenovus has gone so far as to dub these operations — which require the injection of steam underground to heat viscous oil, allowing it to be pumped to surface — “a different oil sands.”

While they certainly do represent the future of the oilsands — in-situ projects have already outpaced mining production and are set to increase by one million barrels per day by 2030 — they also come with their own set of problems.

In-situ oilsands operations are incredibly greenhouse gas-intensive — requiring copious quantities of natural gas, often obtained from fracking, to produce the steam that’s injected underground.

Operations require extensive roads and seismic lines that expose threatened caribou to an increased risk from wolves and create habitat disturbances that are connected to low reproduction and calf survival rates. These compounding impacts to caribou are part of the underlying justification of the province’s controversial wolf cull.

And the proposed use of solvents as a substitute for steam has given new rise to long-held concerns about groundwater contamination from steam-injection processes.

The cumulative impacts of in-situ operations are extensive, which is why many onlookers are scratching their heads as Ottawa allows for their exemption under new environmental assessment laws — leaving reviews entirely in the hands of the province.

“To have the country’s main environmental assessment law leave the highest-carbon projects off the list is just unacceptable to us,” Patrick DeRochie, climate and energy program manager at Environmental Defence, told The Narwhal.

“The notion that provinces are able to step in and do this is not true. It doesn’t hold water.”

New legislation keeps Harper’s project list

As The Narwhal reported in April, Canada’s proposed environmental assessment rules — designed to restore public trust in the federal process for reviewing major projects — were released without any details on what kinds of projects would trigger review under the new legislation.

Back in 2012, the Harper government radically overhauled the country’s environmental assessment processes and introduced the use of a “project list” to determine whether a project — like a dam, power plant or oilsands mine — would be subject to a federal review.

Unlike the previous regime, which relied on automatic “triggers,” the project list dramatically narrowed the activities eligible for federal assessment and accorded a great deal of discretionary power to the federal environment minister.

Thousands of projects per year were no longer reviewed by Ottawa.

Outcry ensued.

The current federal government’s solution, Bill C-69, a new and controversial impact assessment bill currently under debate in the Senate, will overhaul the 2012 legislation — but keep the project list intact.

The contents of that list remain undisclosed to the public. But from the get-go Environment Minister Catherine McKenna indicated in-situ oilsands projects would be exempt from the list.

In a statement e-mailed to The Narwhal, a spokesperson for the Canadian Environmental Assessment Agency confirmed this is still the case: “At this time, the approach to draft regulations to support the Impact Assessment Act remains unchanged.”

Last week, the federal environment ministry confirmed to The Globe and Mail that in-situ projects “fall within the exemption eligibility.”

Anna Johnston, staff lawyer at West Coast Environmental Law, said that the case for not returning to the previous approach of “triggers” in Bill C-69 was premised on the expansion of Harper’s project list.

The exemption of in-situ operations seriously undermines that expectation, Johnston said, adding many of the impacts of these operations, including those affecting Indigenous rights, fall under federal jurisdiction.

According to Johnston, Ottawa can and should assess factors like health and safety of nearby communities and workers, the potential use of solvents and impacts on species from habitat fragmentation.

Many in-situ projects occur within the critical habitat of boreal caribou, she said, and the federal government has made it “very clear” that Alberta isn’t doing a sufficient job to protect habitat.

“Why would it then entrust the provincial government to assess in-situ for its effects on boreal caribou when Alberta has demonstrated it hasn’t been doing that job adequately?” she asked.

In-situ emissions 43 per cent higher than mining

According to a recent analysis by the Pembina Institute, in-situ extraction produced an average of 43 per cent more emissions per barrel than mining in 2016. That’s a serious concern for climate policy analysts given that all new oilsands production after roughly 2022 will come from in-situ projects.

Ambitious claims are frequently made by industry and government that per-barrel emissions will soon plummet with the implementation of new technologies.

But Pembina analyst Jan Gorski told The Narwhal that most emissions reductions have occurred in upgrading, not extraction, with little signs of improvement in mining or in-situ extraction.

Furthermore, the most promising technologies are still in early stages and will only apply to new projects, not expansions (which is where production is set to grow).

“The greater question is that it hasn’t yet been shown how oilsands emissions, even as they are today, would be compatible with our emissions targets,” Gorski said.

“You take into account that there’s going to be more growth and it just makes the problem worse.”

Recent studies have also questioned current estimates of methane leakage from extraction of natural gas, used heavily by in-situ producers. A journal article in Elementa from earlier this year indicated that emissions from operations near Red Deer may be 15 times higher than reported.

Alberta Premier Rachel Notley touring the Nexen Long Lake facility in September. The Long Lake facility is expected to produce 26,000 barrels of oil per day at full capacity. Photo: Chris Schwarz / Government of Alberta

Alberta won’t introduce emissions cap regulations before election

Complicating matters, the federal government has justified exemption of in-situ extraction from the project list because of Alberta’s 100-megatonne oilsands emissions cap.

But recently Alberta announced that, despite the fact the cap was legislated in 2016, it will delay the implementation of final regulations for the cap until after the next provincial election.

This puts the future of the cap itself in a precarious position, given the potential for a United Conservative Party victory in 2019.

The United Conservative Party is a loud and vocal opponent of both the 100-megatonne emissions cap and the idea of capitulating to the federal government’s national carbon levy.

Party leader Jason Kenney vowed to scrap Alberta’s carbon levy and fight Ottawa’s pan-Canadian climate framework, including requirements for a carbon tax. Kenney’s stance could end up pitting Alberta against the federal government, much like the current battle taking place between Saskatchewan and Ottawa.

At the heart of these federation feuds is the question of whether or not greenhouse gas emissions fall under the authority of the federal government or the provinces, said Stephen Hazell, former director of legislative and regulatory affairs at the Canadian Environmental Assessment Agency.

The Saskatchewan Court of Appeal will soon rule on the constitutionality of the federal government’s plan to impose a carbon tax on the province, he said.

Hazell, now director of conservation with Nature Canada, said that should the matter rise to the level of the Supreme Court of Canada, he has no doubt that a requirement to assess projects on their carbon emissions would be upheld.

“I reject the idea that greenhouse gas emissions are not a matter of federal interest and authority,” he said.

Latest oilsands mega mine proposal a reality check for Alberta’s emissions cap

Hazell said in-situ operations fit neatly within the category of major projects likely to have significant adverse environmental impacts — a trigger under former environmental assessment rules.

“Given that climate change could destroy human civilization, maybe it might be a good idea to include high-carbon projects for assessment under the new legislation,” he said.

DeRouchie of Environment Defence said that Canada has made a promise to the international community to limit greenhouse gas emissions.

“The federal government has responsibility for the entire country to meet its climate targets,” DeRouchie said.

“We’ve seen provinces failing in the past, and continuing to put in place plans that will fail in the future. There’s actually a requirement for the federal government to meet those national commitments, and that means bringing the provinces along.”

Oilsands emissions are expected to hit 115 megatonnes of annual emissions by 2030, consuming 22 per cent of Canada’s carbon budget under the Paris Agreement.

The Pembina Institute has calculated that if all currently approved oilsands projects are built, they will add up to 131 megatonnes per year.

New environmental assessment rules allow for multi-jurisdiction collaboration

Were in-situ projects to be included under federal environmental assessment rules, it would be a first, Martin Olszynski, associate professor of law at the University of Calgary and expert in environmental assessments, told The Narwhal.

In-situ operations have never been captured by the federal environment assessment regime and it would be a significant change to include such projects in the process, he said, adding he would be surprised to see such a move given the high tension between Alberta and Ottawa.

Olszynski said, however, that in-situ oilsands extraction should be subjected to rigorous environmental assessment processes, especially if conducted at the provincial level.

“Alberta claims that it has those,” he said in an interview.

“My own sense, based on my own research, is there are a lot of things that aren’t being done very well. We are reasonably decent at documenting impacts but it’d be hard to imagine that the assessment process really changes the outcome or the way we approach these projects.”

It devours our land

Some have pointed to a collaborative solution. The new federal impact assessment framework is designed for collaborations between different levels of government.

Johnston said that if the federal government joins in existing provincial assessments, it could ensure oversight while maintaining the practice of “one project, one review.”

The new legislation also allows for integration of Indigenous environmental assessment processes.

According to Johnston, exemptions undermine a strong feature of the new rules: allowing for substitutions. The new legislation provides for the option of substituting a provincial assessment for a federal one, when and where it makes sense to do so.

“If Alberta believes that its processes are that good, then it can just rely on these substitution provisions,” she said. Johnston added a benefit of having a substitution provision as opposed to an exemption is that the federal government retains decision-making authority when it comes to how an assessment will be conducted and by what agency.

Olszynski said there’s also a fair bit of malleability with the future of the project list.

Because it’s a cabinet regulation, with the legislation offering no clear criteria about what can go on or off the list, a new government can add or subtract from the list — or even scrap it entirely — with very little effort. That could be very good or very bad, depending on one’s perspective of whoever forms the next government, he said.

Johnston said that while the bill may go to committee as early as next week, actual considerations won’t commence in any way until February — meaning there’s still time for people to voice their concerns about the exemption of in-situ. (You can find your MP’s contact information on this website)

She emphasized that much of the criticism about Bill C-69 is missing the mark and undermining the potential for improvements.

“If everybody could just step back and take a deep breath and think a little bit more realistically about this bill, then maybe they’d recognize that impact assessment has a really key role to play in ensuring responsible development — and it’d actually be beneficial to have more projects subject to it because it’s almost never used to stop projects but to design projects more responsibly,” she said.

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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.”

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After more than a year of public hearings, the federal government unveiled its new and improved environmental assessment legislation in February 2018 with much ado.

But the new rules — designed to restore public trust in Canada’s process for reviewing major projects — didn’t contain any details on what kinds of projects would trigger a review under the new legislation.

Environment Minister Catherine McKenna skirted the issue, saying her ministry was still evaluating what kinds of activities would show up on a yet-to-be-released “project list” that was pending further consultation with Canadians.

But when pressed on the issue, McKenna told reporters she didn’t believe oilsands projects developed via in-situ methods should be included. McKenna reasoned that because Alberta already has a hard cap on emissions, future oilsands projects would be exempt from federal environmental review.

The implications of excluding new oilsands projects because of a provincial emissions cap (which is controversial) weren’t lost on Adam Scott, senior advisor with Oil Change International.

Unbelievable and unacceptable. @cathmckenna proposes exempting #tarsands in-situ projects from any federal environmental assessment because ‘Alberta has a hard cap on emissions’ #cdnpoli

— Adam Scott (@AdamScottEnv) February 8, 2018

“It’s just appalling,” Scott told DeSmog Canada in an interview. “There’s no other way to say it.”

Unlike the more familiar open-pit mines of the Alberta oilsands, in-situ projects extract the region’s viscous bitumen by injecting steam into the ground, which softens the oil that is then pumped to the surface.

In-situ development represents the future of the oilsands. Between 2016 and 2040, in-situ is expected to double in daily production reaching 2.9 million barrels per day.

And while the process is less visible than its open-pit counterpart, in-situ oilsands mining has greater greenhouse gas emissions and significant land disturbance that clashes with the rights of local Indigenous peoples.

NDP MP Linda Duncan said by not releasing the project list the federal government has left everyone in the dark.

Duncan, who serves as vice-chair of the Standing Committee on Environment and Sustainable Development which is responsible for reviewing the new legislation, said in-situ projects were exempted from federal assessments under the previous Harper government during dramatic cuts to Canada’s environmental rules. The new proposed federal legislation, bill C-69, was meant to make the gutted rules more robust.

“Everybody agrees that this bill should not be finalized until everybody knows what the project list is,” Duncan told DeSmog Canada.

“Who is it going to apply to? It’s ridiculous that they didn’t have the consultations simultaneously. This is a really serious matter. One of the things that we heard from industry today was that they’re just fed up.”

In-situ projects expected to emit 65 megatonnes of emissions by 2030

In-situ projects don’t result in the same level of visual devastation as open-pit mining: there are no toxic tailings lakes or gargantuan trucks needed.

But they have their own set of significant impacts, which critics argue should fall under the purview of federal assessment.

For one, they emit far more greenhouse gases that mining on a per-barrel basis. A 2016 assessment by the Pembina Institute found the “emissions intensity” of in-situ is about 60 per cent higher than mining. That’s because natural gas is burned to create the steam used in the process, making it extremely emissions intensive.

By 2030, in-situ projects are expected to emit 65 megatonnes of emissions per year: almost equivalent to all passenger transport in the country.

Sharon Mascher, law professor at the University of Calgary and expert in environmental law, said in an interview with DeSmog Canada that such climate impacts from in-situ projects warrant federal assessment.

“I would argue that the federal government has the constitutional power to deal with greenhouse gas emissions and they need to show some leadership if they’re going to purport to be acting in a way that’s consistent with their obligations under the Paris Agreement,” she said.

“They need to exercise that jurisdiction to make sure that over the long term Canada’s greenhouse gases are not increasing  but are decreasing and eventually reaching carbon neutrality.”

Alberta’s emissions cap allows for a 40 per cent expansion in emissions, up to 100 megatonnes. But that doesn’t include electricity cogeneration, oilsands that doens’t require steam extraction and new or expanded upgraders — which combine for another 15 megatonnes of emissions.

As noted in the recent collaborative report by Canada’s auditors general, Alberta is one of nine province and territories that doesn’t even have a 2030 emissions goal in place.

Mascher said the only way an exemption for new in-situ projects would make sense would be if the federal government conducted a strategic assessment of all existing legislative frameworks in order to provide assurance that new production fits within Paris Agreement obligations.

However, strategic assessments aren’t legislated — meaning they’re completely at the discretion of cabinet.

No environmental assessments for in-situ oilsands projects under the federal government’s new rules. @cathmckenna https://t.co/WjhonE2XgN

— DeSmog Canada (@DeSmogCanada) April 3, 2018

Without federal assessments, ‘there’s no credibility to the system at all’

Greenhouse gas emissions aren’t the only potential impact of in-situ projects.

As recently reported by DeSmog Canada, Fort McKay First Nation in northeast Alberta is currently fighting a proposed in-situ project that is feared to jeopardize a nearby sacred region.

Specific concerns include the introduction of linear disturbances like roads and cutlines — which can further endanger caribou — and constant water withdrawals.

“They’re massive water polluters with large impacts on land and endangered and threatened species like woodland caribou,” Scott said. “They obviously need to be part of any review. It’s just essential. Without that, there’s no credibility to the system at all. They need to be on the project list as a default.”

There’s growing interest by oilsands producers in the use of “solvents” for in-situ projects, which would greatly reduce the amount of natural gas required for extraction but have unknown impacts on groundwater quality.

Duncan emphasized it’s the primary responsibility of the federal government to address Indigenous rights.  In addition, she emphasized that only the federal government can regulate navigable waters, fisheries and trans-boundary waters.

Even though the previous environmental impact system implemented under Harper exempted in-situ projects, Duncan said it’s imperative that they be included in the project list.

“It’s still having a huge impact on the landbase that is by and large traditional Indigenous lands,” she said.

Committee required to review legislation without knowing what it will apply to

The proposed legislation is currently being reviewed by the Standing Committee on Environment and Sustainable Development. After it’s approved, it’ll return to the House for third reading and eventually royal assent.

In late February, the Liberals introduction a “time allocation” motion over bill C-69 in the House of Commons, limiting debate to only two days before sending it off to the Liberal-stacked committee.

But Duncan said the committee process itself is also being fast-tracked, with limitations on hearing witnesses and proposed amendments.

In response, she gave notice of a motion to break up the bill for review and send sections to relevant committees: parts addressing the Canadian Energy Regulator to the Natural Resource committee and parts about navigable waters to the Transport committee.

Those calls were rebuffed.

Now, her committee has to review over 800 clauses by late April.

Some have speculated that the continued exemption for in-situ for Alberta is a subtle trick to ensure the emissions cap remains regardless of who wins the next provincial election.

Scott suggested that would be a “terrible strategy.”

“The Alberta cap is an ineffective way of dealing with climate impacts of oil and gas operations,” he said. “Exempting projects with the environmental impacts of in-situ tarsands projects really shows the impact system was broken entirely.”

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When it comes to the rights of Indigenous peoples, Prime Minister Justin Trudeau talks a really good talk. A close look at new laws that will dictate how major resource projects are reviewed, however, suggest he wants to leave himself a lot of wiggle room when it comes to walking the walk.

The week before Trudeau was lauded for a speech in the House of Commons that promised of a new legal framework for Indigenous people, his government released two long-awaited pieces of environmental legislation.

Initial reactions were cautiously optimistic. But now that the dust has settled,  it’s clear that matching words to action is often an exercise in optimistic romanticism.

Bill C-69 — which will overhaul the Canadian Environmental Assessment Act, National Energy Board Act and Navigable Waters Act — mostly restores protections to how they were before the Harper Conservatives decimated them in 2012, but little has been done to truly modernize processes.

It’s “abundantly clear that the architects…have no transformative aspirations,” wrote University of Victoria law professor Chris Tollefson in an article for Policy Options.

Unfortunately, the same appears to be true about what the new legislation means for how Indigenous peoples and communities will be included in future environmental assessments and protection planning: rather than tightening the rules to make ministers more accountable for upholding First Nations’ rights, the new laws give them broad discretion at every turn.

“Looking at the bill itself, we don’t really see the robust impact-assessment, sustainability framework that was promised,” said Sara Mainville, partner at OKT Law and former chief of northwest Ontario’s Couchiching First Nation.

Requirements to integrate Indigenous knowledge, governments

To be sure, there were some new developments on how governments plan to engage with Indigenous people.

The revised acts require that Indigenous traditional knowledge be used to inform decision-making, require that such knowledge is protected from public disclosure, and create new abilities for Canada to enter into management agreements with Indigenous governing bodies (rather than just provinces and territories).

In the case of impact assessments, the revised bill also explicitly requires that adverse impacts on Indigenous rights need to be considered — a significant shift from the current legislation.

“What the present Act requires is that potential impacts to the current use of lands for traditional purposes be assessed,” said Jeff Langlois, lawyer at JFK Law and recently counsel for Gwich’in Tribal Council in the Peel Watershed case.

“It lets proponents and the government in these formal environmental assessment processes just focus on the use of the land today. Like ‘Have you hunted in the last couple of years? Is it going on right now?’ It’s made these environmental assessments very narrow in scope.”

The proposed legislation expands the review criteria. But here’s the catch — it only needs to be considered by the minister and can always be ignored in the name of “public interest.”

“All that cabinet has to do is say in its reasons that, ‘We took Indigenous impacts and interests into account,’ ” said Jason Maclean, environmental law professor at the University of Saskatchewan. “It doesn’t change anything. In fact, it could provide the government cover and insulation for even worse decision-making, making it that much harder to overturn.”

“It doesn’t change anything. In fact, it could provide the government cover and insulation for even worse decision-making, making it that much harder to overturn.” https://t.co/2ZDqesKoPc

— DeSmog Canada (@DeSmogCanada) February 20, 2018

Regional impact assessments only required if minister wants

The issue of ministerial discretion also plagues many other elements of the bills.

For example, Bill C-69 suggests the use of regional impact assessments and strategic impact assessments. Such tools can be used to provide baseline data or plans for an entire area such as the oilsands-dominated Lower Athabasca Region of northeast Alberta in order to help track cumulative impacts — whether they be on the local environment, Indigenous rights or ability to meet climate targets.

Langlois said that a big problem with the current approach is that every proponent and government will argue that you can’t blame any one project for infringement on Aboriginal and treaty rights, meaning none are ever stopped on those grounds.

But once again, the rules are soft: the  bill is worded carefully to say that the Minister “may” order a regional or strategic assessment.

“If you want to take these strategic and regional assessments as effective tools, you should be putting some trigger in place to say, ‘What’s going to make you do that assessment?’” Langlois said. “Right now, it’s still just totally discretionary, as is all decision-making under the act still.”

Bill falls short of expert recommendations

It’s also a fundamental undermining of recommendations made by the government’s expert review panel in its comprehensive April 2017 report, which specifically recommended that legislation “require” such tools to be used in any area where cumulative impacts may occur or already exist and to “guide” the entire impact assessment.

It’s one of the panel’s many key suggestions that has been weakened in the bills.

“I often look at the expert panel report as a recipe, not as a menu,” Mainville said. “You can’t really pick and choose different pieces of it.”

A central ingredient in that recipe was dealing with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which contains the principle of “free, prior, and informed consent.” But there wasn’t a single mention of UNDRIP in the bill.

Instead, Trudeau’s Environment and Climate Change Minister Catherine McKenna pledged to “try really hard” to gain consent from Indigenous communities.

Further complicating the situation was McKenna’s assurance that the Kinder Morgan Trans Mountain pipeline would have been approved under the new environmental assessment legislation — despite many Indigenous communities vehemently opposing its construction.

“Bill C-69’s really obvious failures to mention, let alone implement, UNDRIP or [free, prior and informed consent] is a failure for the government to take a step forward towards shared governance with Indigenous peoples,” Maclean said. “Instead, it retains the same colonial top-down model that reposes all the decision-making power with the federal cabinet under a very broad and highly discretionary ‘national interest’ test.”

Liberals recently supported UNDRIP bill, pledged new legal framework

In addition to finalizing the legislation, the government will have to craft a wide range of regulations, policies and programs. Such tools could provide more insights into how the Liberals expect to integrate their support of MP Romeo Saganash’s recent private member’s bill to fully implement UNDRIP, as well as Prime Minister Justin Trudeau’s pledge to establish a new legal framework for Indigenous peoples.

“This staged approach is the silver lining to all this,” Mainville said. “But the wait-and-see is wearing First Nations’ patience a little thin.”

The Narwhal’s reporters are telling environment stories you won’t read about anywhere else. Stay in the loop by signing up for our free weekly dose of independent journalism.

This piece originally appeared on Policy Options.

Windows of opportunity for transformative change are rare and can close suddenly.

The saga of Bill C-69 is a case in point.

The Trudeau government swept into power with a broad mandate to fix the environmental assessment (EA) policy train wreck. Public cynicism about how we assessed and approved major resource projects was at an all-time high. In part, this was due to Harper-era reforms aimed at appeasing industry interests at the expense of scientific rigour, public participation and due process. But it was also due to a broad sense that these processes, in place long before the Harper era, were profoundly out of touch with public expectations about how such decisions should be made.

The Paris Agreement on climate change and the Trudeau government’s commitment to implement the UN Declaration on the Rights of Indigenous Peoples ratcheted public expectations up even higher. Many speculated that a once-in-a-generation opportunity to transform environmental assessment had arrived.

Last summer’s impressive report by the expert panel on environmental assessment processes, charged with advising government on ways to restore public trust in our federal environmental assessment and decision-making processes, reinforced a sense that transformational change remained a real possibility.

A more sombre mood has now descended. Bill C-69, the major overhaul announced on February 8, offers little for those hoping for a bold and creative next-generation assessment regime. While it was engineered to reinforce the theme of change and renewal — by deservedly retiring the National Energy Board and establishing a new, better-resourced federal assessment agency — on closer inspection it becomes abundantly clear that the architects of Bill C-69 have no transformative aspirations.

The weight of evidence in support of this conclusion is overwhelming.

Exhibit 1: Independent science.

Deficiencies and gaps in the scientific evidence marshalled in recent pipeline reviews has fuelled calls from the scientific community and beyond for greater scientific rigour and independence in the assessment process. A key concern, underscored by the EA expert panel, was the extraordinary weight these federal assessments typically place on proponent-controlled science. Yet, on this key issue, Bill C-69 is virtually silent. The Bill scarcely mentions the word “science” and does nothing to ensure that the science put forward by project proponents is subjected to rigorous and independent peer review.

Exhibit 2: The need for a sustainability-based decision test.

The legal test that conventional environmental assessments apply is whether a project under assessment is likely to cause “significant adverse environmental effects.” This test has been roundly criticized by leading EA practitioners as entrenching an assessment model that, at best, operates to make “bad projects a little less bad.” In the run-up to Bill C-69, there was broad support for requiring projects to meet a new legal test. Under this test, a proponent would need to show that its project makes a net contribution to sustainability, a potentially game-changing metric that the EA expert panel endorsed.

Here again Bill C-69 disappoints — and potentially makes things worse. It jettisons, for most projects, the current “significance test.” Future assessments will not need to determine whether a project’s adverse effects are “significant”; instead, they will be required only to “set out” whether the effects of a project are “adverse.” In doing so, assessments must consider a long laundry list of factors, including whether a project “contributes to sustainability.” To secure approval, however, the only legal test a project will need to satisfy is that it is in the “public interest.” The result, perhaps intended, will be to make such assessments more immune than ever from public and judicial accountability.

“On closer inspection it becomes abundantly clear that the architects of Bill C-69 have no transformative aspirations.” https://t.co/l7IliaiE3H

— DeSmog Canada (@DeSmogCanada) February 14, 2018

Exhibit 3: Our international climate commitments.

Our current federal assessment law is entirely silent on this topic. After the Paris Agreement, many argued that this blind spot urgently needed to be remedied by requiring future assessments to ensure that project decisions did not thwart our ability to meet our Paris commitments. The EA expert panel agreed and offered a host of sensible recommendations as to how a new law could be drafted to do exactly this. Alas, on this front too, Bill C-69 disappoints. The lengthy bill barely alludes to the relationship between our climate commitments and project assessments.

Where it does, it simply exhorts assessors and decision-makers to “consider” such commitments but provides no guidance, let alone binding rules, as to how these commitments should be weighed against a raft of other factors.

At the press conference to introduce the new legislation, Catherine McKenna, Minister of Environment and Climate Change, opined that if Bill C-69 had been in force during the assessment of the Kinder Morgan pipeline review, the result would have been the same: her government would still have approved the project.

This remarkable observation is telling. Given the glaring deficiencies in the National Energy Board’s assessment of the Kinder Morgan project, enabled by a broken federal assessment regime that her government came to power by promising to fix, only one conclusion can be drawn from her counterfactual claim: Bill C-69 changes little and will be rightly judged as a lost opportunity.

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