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.”

Remember When Harper Ruined Canada’s Environmental Laws? Here’s How the Liberals Want to Revamp Them https://t.co/IumeDcu1QC #cdnpoli pic.twitter.com/qXF87DtAtg

— DeSmog Canada (@DeSmogCanada) February 9, 2018

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

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Two rejections by the federal government have not deterred a Vancouver mining company from again heading to court in an effort to quash Ottawa’s decision to turn down a proposal for an open-pit copper and gold mine in an area where the Tsilhqot’in Nation has established aboriginal rights.

Taseko Mines Ltd. is appearing in Federal Court in Vancouver this week to launch a constitutional challenge to the Canadian Environmental Assessment Act and ask for a judicial review of the federal government’s decision to reject the proposed $1.5-billion New Prosperity Mine, 125 kilometres southwest of Williams Lake.

Despite the project gaining provincial approval in 2010, the federal government turned down the proposal in 2010 and 2014, saying there would be severe environmental damage and immitigable adverse effects on Tsilhqot’in culture, heritage and aboriginal rights.

The panel found that Fish Lake, known as Teztan Biny by members of the Tsilhqot’in Nation, had unique cultural importance and would be harmed by the mine. In the first application the company planned to turn the lake into a toxic tailings dump and, although the second application spared the lake, the panel concluded the mine would still have severe impacts.

However, Taseko is arguing that the Environmental Assessment Act, amended in 2012, goes too far in protecting the interests of Aboriginal people according to a Tsilhqot’in news release.

“In essence, the company is attempting to further reduce the protection of our already-gutted federal environmental laws, particularly as they apply to aboriginal people,” it says.

The company, in its application, says the review panel erred in the evidence it considered and that the company was not given an opportunity to challenge that evidence.

It is frustrating that the nation has to continue spending time and money fighting Taseko, said a Tsilhqot’in spokesman.

“After two federal rejections, this company still tries to bulldoze ahead and cause destruction in our territory,” Chief Roger William, vice-chair of the Tsilhqot’in National Government, said in a news release.

“For the past decade we have opposed Taseko Mines in the strongest terms and it is time they finally understood our position — simply stated, we do not consent,” he said.

The Union of B.C. Indian Chiefs is supporting the Tsilqhot’in people in their battle, said Grand Chief Stewart Phillip, UBCIC president.

“This is an arrogant and unrepentant company that has not learned its lesson, despite not one, but two scathing federal rejections by the Harper government, the most pro-industry and anti-First Nations government in memory,” Phillip said.

“We will continue to completely support the Tsilhaqot’in as they do what it takes to lay this wretched, destructive and highly offensive mine proposal to rest for once and for all,” he said.

The area gained additional significance in 2014 when the Supreme Court of Canada, for the first time in Canadian history, recognized aboriginal title on about 1,750 square kilometers of Tsilhqot’in Nation land — a decision that reframed the way resource companies and governments dealt with First Nations.

The mine is outside the title territory, but in an area of proven aboriginal rights, according to the Tsilhqot’in. It is part of the Dasiqox Tribal Park, created in 2014.

In an additional wrinkle, which will again draw the provincial government into the fray, despite a 2016 agreement to work on reconciliation, Taseko has applied to the province for a permit to start exploratory drilling.

The exploration would be extensive with road building, drilling, seismic line testing  and construction of a 50-man camp. The company has said it wants to be ready to start construction of the mine before the amended B.C. permit expires in 2020, but the exploration is strongly opposed by the Tsilhqot’in.

“[Taseko’s] permit application ignores all findings against the proposed mine. It is an insult to Tsilhqot’in and the rule of law,” William said.

Spokesmen for the Ministry of Energy and Mines did not reply to questions about the permit by deadline.

Taseko documents show the company has spent more than $130-million trying to develop the mine. The area is believed to be the largest undeveloped gold/copper deposit in North America and the company claims that, once in production, it would produce 250,000 ounces of gold and 110-million pounds of copper annually for 20 years.

Image: Taseko Mines rendering of the New Prosperity mine project. 

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Canada’s great, white north seems to be getting a little less white as the years go by thanks to above-average increases in Arctic temperatures and increasing levels of industrial development.

Still, the north remains great, and there’s nothing more emblematic of that greatness than the astounding 1,000-kilometre seasonal migration of the region’s barren-ground caribou herds.

Named for their habitat — sprawling Arctic tundra which extends beyond the northern tree line — barren-ground caribou have experienced alarming population declines for years, according to the Committee on the Status of Endangered Wildlife in Canada (COSEWIC), and those declines are occurring alongside unprecedented levels of climate change and habitat disturbance.

The committee recently changed the status of barren-ground caribou herds from a species of ‘special concern’ to the more dire category of ‘threatened’ — one step away from ‘endangered.’

“These caribou are in trouble,” Justina Ray, co-chair of the Terrestrial Mammals Subcommittee with COSEWIC, a group of cross-country wildlife experts and scientists, told DeSmog Canada.

“We did a large analysis of 15 herds, which hasn’t been done before.”

Some of these far north caribou herds have experienced population losses of more than 90 per cent over recent decades, slowly caving to the layered pressures of a warmer climate, development, resource extraction and hunting.

Image: WWF Canada

Cumulative Impacts Overlooked in Project Approvals

The caribou’s threatened status comes about just as a federal panel is reviewing the Canadian Environmental Assessment Act under which major projects must seek approval.

Ray can’t help but see the link between the status of the caribou and the status of Canada’s environmental assessment laws.

“The problem for these caribou is a combination of cumulative impacts and novel disturbance — new things that are occurring in these barren ground ranges that weren’t there before,” Ray said.

The failure to connect the overall impacts of resource development and human disturbance on these travelling species is a major factor in their decline, Ray said.

“It’s very illustrative of this piecemeal decision-making,” Ray said. “No one is looking at establishing limits to that or checking in in an overarching fashion.”

Right now with major project approvals, we’re simply “chipping away one decision at a time in a way that leads to this gradual destruction.”

Ray said the recent COSEWIC review of at risk species identified a number of migratory species that are not faring well in today’s environment, including Coho salmon, Nuttall’s cottontail bunnies and monarch butterflies. 

“It really struck us, how impacted migratory species are.”

A 2013 report from the Conference Board of Canada predicted a 91 per cent increase in mining in northern Canada.

The race for resources in the north has prompted the Canadian World Wildlife Fund to campaign for revoked mining licences in caribou calving grounds.

Ray said researchers don’t know just how much development barren-ground caribou can tolerate.

“Sometimes just one new road in an area can have a disproportionate effect because it’s this novel disturbance that can be a disproportionate issue for caribou that is experiencing truck traffic, dust, etc. for the first time.”

“That can be incredibly disruptive. If you combine that with harvest, resource development, climate change and these other uncertainties, that can add a lot of pressure and stress to a caribou population over time.”

Finding a Lifeline for Canada’s Threatened Arctic Caribou https://t.co/5UQJI5G9CA #Yukon #cdnpoli

— DeSmog Canada (@DeSmogCanada) January 20, 2017

Seizing the Opportunity to Modernize Environmental Assessment

Ray recently presented to the panel, tasked with reviewing Canada’s environmental assessment process.

In her submission, Ray emphasized that, as it currently stands, the process has significant gaps when it comes to ensuring the veracity and independence of science used within the process.

For example, she said, as the legislation currently stands, there’s no procedure to guarantee the independence of science used by consultants hired by project proponents.

Ray’s concerns about the role of science in the assessment process have been echoed by numerous other academics, scientists and researchers who also made submissions to the panel.

“I think the whole process has been plagued by a lack of robust science. It’s actually a more interesting question to ask where science has been robustly assessed in a review process.”

“Even the recent federal Kinder Morgan Trans Mountain pipeline decision didn’t take into consideration what an oil spill would result in,” Ray added.

Still, if Canada gets it right, we could pave the way in the creation of a modernized assessment process, Ray said.

“We could potentially be a model for the rest of the world.”

Image: Caribou in Alaska. Photo: Paxon Woebler/Expedition Arguk via Flickr cc 2.0

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British Columbia’s environmental review process simply isn’t strong enough to protect Alaskan communities and rivers from the province’s mining boom, Jill Weitz, American campaigner with Salmon Beyond Borders, recently told a panel reviewing Canada’s environmental assessment process.

Weitz, who works to protect Alaska’s wild salmon runs, traveled to Prince Rupert to tell a trio of experts appointed by the federal government how a more robust federal environmental assessment process could help address transboundary concerns arising in the wake of B.C.’s major push for new mines.

The federally appointed panel is currently reviewing the environmental assessment process managed by the Canadian Environmental Assessment Agency which is responsible for reviewing major development projects including pipelines, oil and gas development and mines. Changes made under the previous federal government excluded major mines in British Columbia from the federal environmental assessment process — a legislative change Weitz and others say left Alaska in an uncomfortable position.

The transboundary region traversing the border of northwest B.C. and southeast Alaska is home to three major salmon rivers, the Taku, Stikine and Unuk. The rivers flow into Alaska from an area in B.C. that is home to 10 new mines either proposed or already under construction.

Weitz said one of those mines, the controversial KSM mine, is the largest open pit mine in North America.

Despite living directly downstream from the mine, Alaskans were frustratingly prevented from meaningful participation in the project’s environmental review, Weitz told DeSmog Canada.

“The project would be located 22 miles upstream from the Alaska border,” she said. “The environmental assessment process determined there would be no significant environmental impacts.”

Weitz said this assessment was made despite the fact that the term ‘environmental impacts’ was not precisely defined and there was a problematic lack of the basic information needed to measure those impacts going forward.

“Not only is the B.C. process flawed in terms of identifying whether KSM would have significant environmental impacts but the baseline data needed to say that — it doesn’t exist.”

Weitz said Salmon Beyond Borders began campaigning on the issues of transboundary watersheds and the KSM mine after Alaskans from many different backgrounds start voicing their concern about the project.

A 2014 tailings pond collapse at the Mount Polley mine raised serious concerns about B.C.’s mine management and permitting process.

Many Alaskans representing fishing, tourism and indigenous groups voiced fears that something similar to the Mount Polley disaster, which left the pristine Quesnel Lake watershed contaminated with 24 million cubic metres of mining waste, could happen in U.S. waters.

The KSM tailings pond is projected to entail a massive 239-metre tailings dam, perched above the Bell Irving/Nass watershed in B.C. near the Sulpherets Creek, which runs into the Unuk River.

“We continue to push on the notion that there needs to be further transboundary watershed management in a shared way,” Weitz said.

In her presentation to the environmental assessment review panel, Weitz made the case that legislative changes made under the former Harper government that narrowed the purview of the Canadian Environmental Assessment Act increased the threat felt by southeast Alaskans.

Projects that have immediate implications for transboundary watersheds should automatically trigger federal environmental assessments, Weitz argued, saying the provincial process in B.C. is not comprehensive enough and does not consider cumulative impacts of industrialization in the region — a top concern for many scientists and conservation groups.

Weitz said although B.C. invited the participation of Alaskans in the KSM mine assessment, she felt like their input was ultimately ignored.

Provincial approval of the KSM mine in 2014 angered many Alaskans. Fifteen federally registered native tribes, as well as a number of non-governmental organizations, made formal requests for a joint provincial-federal review of the project’s approval.

That request was denied.

“There is no equity in this process,” Weitz said.

Nikki Skuce, who also presented to the panel on behalf of the Northern Confluence initiative out of Smithers, B.C., said even British Columbians feel the provincial review system is inadequate.

“Some of us here in the northwest have participated in some really faulty review processes,” Skuce told DeSmog Canada.

“In some cases it’s clear the decision on the project is made even before the process begins so these processes feel very tokenistic and often rely entirely on information from industry.”

Skuce said a serious review of Canada’s environmental assessment process should take into consideration how domestic projects can affect cross-border communities.

“For folks in southeast Alaska, if we’re going to consider impacting a water or airshed upstream, there should be a federal review where there is greater opportunity for those downstream or down-air communities.”

Skuce said Canada’s federal review process should honour international commitments, like Canada’s pledge to engage in a bilateral process to manage transboundary waters.

Skuce says improvements to the federal environmental assessment process could help restore public trust in the review system.

“This process should prioritize indigenous rights that Canada has promised to honour under the United Nations Declaration on the Rights of Indigenous Peoples,” Skuce said.

She added an emphasis on independent science is key to restoring trust in the process.

“We need to delineate the project proponent promoter from the project regulator,” she said.

“Right now you have the regulator cheerleading for the project. That needs to be taken out, separated out to help regain public trust.”

Skuce said she is feeling optimistic about the review of the federal environmental assessment process. The panel has worked hard to engage meaningfully with presenters, she said.

“With so many mining projects proposed in the northwest and given the potential transboundary impacts we need federal engagement,” she said.

“This is a good opportunity to look in-depth at cumulative impacts of development and at our bilateral agreement obligations with Alaska.”

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It describes a framework but could just as easily be read as a request: open science.

And it’s something top of mind for Canadian scientists right now as the federal government is considering changes to the very way science is used to make major decisions about things like pipelines, oil and gas development and mines.

The ongoing federal review of the Canadian Environmental Assessment Act is a huge opportunity to restore scientific integrity to decision-making, scientist Aerin Jacob told DeSmog Canada.

“I really can’t underscore how big an opportunity this is,” Jacob, Liber Ero postdoctoral scholar at the University of Victoria, said, adding Canada could transform the very way science feeds into the environmental assessment and decision-making process.

“One of the challenges being a scientist in wanting to evaluate government’s decisions is that we can’t see the evidence. We can’t see how decisions are being made.”

“It’s like a black box of decision-making. That’s not scientifically rigorous.”

In a conference meeting room in Nanaimo recently, Jacob had the chance to tell the federally appointed review panel how an environmental assessment could be improved by opening up science, not just to the greater scientific community, but to the public.

“All the information from an environmental assessment should be permanently and publicly available,” she said.

“This is more than having binders physically in a library or documents on a server.”

Other participants who presented to the federal review panel pointed to specific examples of when a lack of transparency was detrimental to the environmental review process.

Patrick McLaren, a geologist and expert sediment analyst, participated in the environmental assessment process for the controversial Pacific Northwest LNG terminal proposed for the coast of British Columbia. The project received federal approval in September.

McLaren, who was hired by local First Nations to provide scientific analysis of Flora Bank, a unique eelgrass estuary which provides resting grounds for juvenile salmon in the Skeena watershed, said he was consistently prevented from knowing what specific information the project’s proponent Petronas, and their private consultants, were using to determine no impacts would be made to salmon as a result of the project.

“In my research I came to the conclusion that the design of the terminal would probably result in Flora Bank being totally lost,” McLaren told the panel.

But when McLaren asked what information Petronas used to make the assertion no harm would be done to salmon, he was boxed out.

“I was precluded from asking the modelers questions,” he told the panel, adding that the data that challenged Petronas’ conclusions was not used in the decision-making process nor made public.

“The Canadian Environmental Assessment Agency and the Department of Fisheries and Oceans kept the data that did not support their conclusions secret…it was not put into the public domain because it was contrary to the ‘no harm’ mantra that was coming out of the modeling work.”

The Pacific Northwest LNG environmental assessment process, which scientists have called flawed and inadequate, is currently being legally challenged through multiple court cases.

Open Science: Can Canada Turn the Tide on Transparency in Decision-Making? https://t.co/mpZFb6dwUb #cdnpoli #environmental #assessments

— DeSmog Canada (@DeSmogCanada) December 21, 2016

Adam Ford, Canadian chair of wildlife ecology and assistant professor at the University of British Columbia, worked as a consultant on numerous environmental assessments in Alberta and British Columbia and said the lack of transparency around data plagues the environmental review process.

“I have created something of a wish list for the environmental assessment panel after years of being involved in these reviews and seeing the same problems come up over and over again,” Ford said.

One of the requests submitted to the panel is to increase transparency and reproducibility of findings in environmental impacts assessments.

“In this process they collect data, but it’s tricky because it’s collected by private companies that keep their data and methods secret,” Ford told DeSmog Canada.

“It would be good to see more meta-data on how they collected this data.”

Ford said if all participants in the process were to make their methodologies and findings public it would help standardize the research being done in these ecosystems and landscapes.

It would also help increase accountability by allowing other scientists to understand and retest any conclusions made.

“In other scientsits’ sampling efforts, for example, we could go to those same places and look at the data they collected, ask them ‘how did you choose these samples, when and why?’ We could try to reproduce their findings.”

“But those standards aren’t there and this research is treated as proprietary.”

Ford said from a scientific and peer-review perspective this lack of transparency undermines the integrity of public environmental assessments by not standing up to the expectations of scientific rigour.

Furthermore, he said, not sharing research is simply inefficient. Scientists end up having to do the exact same research over again for environmental assessments because they can’t access the basic information that went into prior reviews.

“If they just shared the data it would help scientists.”

“There are efficiencies to be had throughout this transparency initiative — that’s where Western science is headed. Science is moving us to a more transparent process.”

When thinking about where Western science is headed, Jacob said Canada now has the opportunity to not only modernize its review process but become a world leader in forward-thinking environmental assessments.

“Beyond the raw data we want to see the reproducible code used to analyze it,” Jacob told the review panel.

“This is the recipe we use to come up with conclusions,” Jacob said, showing a chart with raw spreadsheet data on the left and reproducible code for analyzing data on the right.

“It’s not good enough to say ‘I pressed 10 buttons, this is the result I got.’ You need to have other people be able to plug that into their own computer and get the same result.”

It might look complex, Jacob said, “But now kids in High School are learning how to do this.”

Opening up the science to review by other scientists, opening up methods and raw data to the public — all of this is “done in a spirit of making the process stronger,” Jacob said.

“It blows my mind this is not already part of environmental assessments. This would be so easy to implement.”

She added the default for scientists and officials involved in the review process “ought to be sharing information.”

“This is the standard,” Jacob said. “This is a part of a next generation environmental assessment.”

Image: Prime Minister Justin Trudeau. Photo: Prime Minister’s Photo Gallery

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Prime Minister Justin Trudeau campaigned aggressively on the issue of science in the lead up to the last federal election. And it makes sense that he did: for the first time ever in Canadian history the issue of scientific integrity was a major election issue for voters across the nation.

Images of shuttered libraries, gagged scientists and dumpsters full of books haunted the Canadian imagination under the Harper government.

Trudeau promised to change all of that. Brandishing the language of the scientific community itself Trudeau painted a vision of a Canadian scientific renaissance, with the restoration of scientific integrity and the veritable holy grail of political vows: evidence-based decision-making.

“As a scientist, I was personally thrilled with the Liberal government’s vocal support for science, especially regarding the critical role that scientific evidence should play in informed decision-making,” Wendy Palen, associate professor and biologist at Simon Fraser University, told DeSmog Canada.

In the early days of the federal government under Trudeau, there were several events that shored up that sense of optimism including the anchoring of ministerial duties in science in open mandate letters and restored funding for research in the first Liberal budget.

Trudeau also promised to bring social and scientific credibility back to the environmental assessments of major resource projects.

“I think I can say the scientific community breathed a sigh of relief over the change in attitude around science and the role of scientific decision-making,” Palen said.

But, she added, that sentiment has stopped short in recent months.

In September the federal government approved the controversial Pacific Northwest LNG export terminal near Prince Rupert, B.C. The terminal is expected to become Canada’s single largest point source of greenhouse gas emissions.

Although opposed by all major environmental organizations in B.C., the project and its treatment under the federal review system raised a number of red flags for the scientific community in particular.

Flora Bank juts out towards Lelu Island, where the Pacific Northwest LNG terminal is to be located. Photo: Ocean Ecology

Proposed for the Flora Bank estuary, a unique eelgrass bed that provides resting grounds for hundreds of thousands of juvenile salmon from the Skeena watershed, the LNG terminal’s proposed site clashed hard with biologists and members of the conservation community who say, when it comes to salmon, a worse location simply couldn’t have been selected.

The federal environmental assessment of the LNG terminal — which concluded destroyed salmon habitat could simply be rebuilt elsewhere — was so fraught with problems members of the scientific community penned an open letter to Trudeau and his cabinet, pleading with them to reject the project’s review.

In that letter, scientists detailed a fundamentally flawed assessment process in which peer-reviewed science was ignored, basic principles of scientific investigation were violated and research paid for by the project’s proponent, Malaysian-owned Petronas, was given primacy.

The federal government ignored those pleas from the scientific community and on a September evening environment and climate minister Catherine McKenna announced the project’s approval.

“This project was subject to a rigorous environmental assessment and today’s announcement reflects this commitment,” she said.

Hearing those words, many scientists in B.C. were simply perplexed.

More recently Trudeau along with members of his cabinet approved the Kinder Morgan Trans Mountain pipeline under a review process so thoroughly broken, Trudeau campaigned on the explicit promise to scrap it entirely.

But that’s not what happened and last month scientists were again baffled at the cooptation of the language of science in the pipeline’s approval.

“This is a decision based on rigorous debate, on science and on evidence. We will not be swayed by political arguments," Trudeau said.

"If I thought this project was unsafe for the B.C. coast, I would reject it."

For Palen, the announcement was particularly confounding.

Along with two co-authors, Palen wrote to Trudeau in the weeks prior to the pipeline announcement informing him of a new analysis that identified significant gaps in knowledge and research specifically on the impacts of Alberta oilsands crude, known as bitumen, on marine organisms.

A review of over 9,000 studies found not enough is known about the potential effects of an oil spill from the tankers that will be fed by the Trans Mountain pipeline to say with certainty the project is safe.

“The government’s words and use of the words ‘evidence-based decision-making’ are starting to be questioned by myself and others in the scientific community,” Palen said.

“I heard many of my colleagues wonder what the government really means by ‘evidence-based decision-making’ because those aren’t just empty words — they have a really specific meaning to those of us in science policy and in scientific fields.”

Palen said two important components of the scientific use of evidence are one, that the information is publicly available and preferably independently verified and two, that subsequent decisions are made on the basis of that evidence.

“That’s in contrast to making decisions and then subsequently backing up that decision by the selective use of science or evidence,” she said.

“That’s a big philosophical difference.”

Canadian Scientists Say They’re Unsure What @JustinTrudeau Means When He Says ‘Science’ https://t.co/nY9aCktGiB #cdnsci #cdnpoli pic.twitter.com/MPEyzW1Bad

— DeSmog Canada (@DeSmogCanada) December 16, 2016

Palen said the federal government does not make publicly available the information it bases its decisions on so there is no way to independently verify the data or research undergirding these major project approvals.

Kathleen Walsh, executive director for the science-advocacy group Evidence for Democracy, said that’s a big problem for a government that wants to present itself as evidence-based.

“If government is serious about these decisions being based on science, they need to make that kind of information open and available and they need to be transparent about it,” Walsh told DeSmog Canada.

When it comes to gaps in knowledge, like on the effects of bitumen in marine environments, making evidence-based decisions becomes even more problematic.

“It’s one thing to ignore the evidence that exists but it's another to completely ignore gaps in evidence and pretend they’re not there,” she said.

“So for the federal government to say these decisions are based on evidence or science is not necessarily truthful.”

Walsh said she doesn’t want to elide the progress this government has made on the science file, more generally.

“Certainly there have been some big wins for them in the last weeks on science,” Walsh said, referring to the announcement of a Chief Science Advisor position as well as new rules to prevent the muzzling of federal scientists.

“But we can’t get that confused with their record and say it’s perfect.”

And making those grand claims about science will become more difficult going forward when the Chief Science Advisor position is filled, Walsh said.

“That person is going to have to answer these really hard questions about evidence and government decisions. I’m really looking forward to seeing how that plays out.”

In addition to the introduction of a scientific advisor, Walsh said the federal government’s current review of the Canadian Environmental Assessment Act is also a huge opportunity to start getting science right in the country, especially as it relates to major project approvals.

Aerin Jacob, a Liber Ero postdoctoral fellow in environmental studies at the University of Victoria, couldn’t agree more.

“One of my motivations for being involved in the environmental assessment review is it’s not a very sexy topic,” Jacob told DeSmog Canada. “A lot of people think it’s boring.”

The Act went underwent significant changes in 2012 under the Harper government that many say has left some of the nation’s most important environmental legislation toothless.

“This is an opportunity to take a look at the changes to the Act in 2012 and the ramifications those changes have had. And not just to repeal those changes, but to take a good look at what good environmental assessments can be and to make sure Canada is a leader in that regard.”

Jacob recently organized the creation and release of an open letter from nearly 2,000 young scientists and researchers to the federal government as part of the review, calling on the government to return scientific integrity to the environmental assessment process.

The letter, which Jacob presented to the expert review panel in Nanaimo this week, outlines five ways the federal government could improve scientific rigour in the assessment process, including the use of best available evidence, making information and data available to the public, evaluating cumulative impacts of projects and eliminating conflicts of interest.

Dr. Aerin Jacob speaks at a Before the Abstract event about her research in the Serengeti. Photo: Before the Abstract

“We see what happens when science takes a back seat in this process,” Jacob said, pointing to the “entirely preventable” tailings pond collapse at the Mount Polley mine in B.C. and the recent approval of the Kinder Morgan pipeline.

“With something like the Kinder Morgan decision, there was a lot of concern that has been raised over the last couple of years about that process. Scientists and independent experts have said again and again the evidence being present there isn’t the best evidence, it doesn’t paint the whole picture.”

Jacob said the lack of transparency around the evidence the government used to makes it decision about the pipeline is “deeply concerning.”

“Although it’s possible there is other evidence the government is considering, it’s not evident because we can’t see it.”

“It’s like a black box of decision-making. That’s not scientifically rigorous.”

Jacob said what her and other young scientists and researchers are proposing isn’t radical.

“These aren’t crazy new ideas, to share that information and share how you arrive at a conclusion. This is what we’re taught since elementary school: show your work.”

Jacob said she feels when it comes to science, there is a culture change underway in Canada.

Scientists were eager to get involved in the environmental assessment review, she said.

In Nanaimo, Jacob told the panel young scientists like herself have had a “coming of age.”

“Muzzling of scientists, putting data in dumpsters — that was the norm” for her and other young scientists under the former government. 

“It was not a good time to be looking at a scientific career in Canada and we do not want that ever to be the case professionally or personally.”

“I really can’t underscore how big an opportunity this review is,” Jacob told DeSmog Canada. “It could influence everything about how we make decisions about the environment.”

Jacob said so many of the social concerns that have arisen around major projects like pipelines and LNG terminals could be resolved through a more robust assessment process, starting with greater transparency and rigour from the outset.

The federal expert panel will conclude its review of the environmental assessment act this week and will make recommendations to the federal government by the end of January 2017. A secondary process, which will include the input of a multi-interest advisory committee, will follow on the heels of the panel’s report.

“I really hope the panel will take a bold approach. We’re talking a major overhaul here. And I hope our elected officials have the courage to implement it.”

Image: Justin Trudeau at a Science North event in Sudbury, Ontario. Photo: Prime Minister's Photo Gallery

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On June 23, the Federal Court of Appeal struck down the Harper government’s approval of the proposed Enbridge Northern Gateway pipeline on account of failing to properly consult with adversely affected First Nations.

Many environmental and Indigenous groups cited the ruling as a win, but buried in the decision is a legal interpretation that upholds former Primer Minister Stephen Harper’s changes to environmental assessment law in the country.

Some argue this interpretation of the new Canadian Environmental Assessment Act (CEAA) will undermine the ability for the public to challenge the legality of environmental assessment reports for future projects, such as Kinder Morgan’s Trans Mountain pipeline and TransCanada’s Energy East pipeline.

The precedent established through that June 23 ruling means it’s now exclusively up to the federal cabinet — rather than the courts — to determine whether an environmental assessment report was properly conducted, meaning that the public can no longer challenge reports on the grounds of perceived incompleteness or negligence.

As a result, federal cabinet may be missing key perspectives while making decisions on major resource projects.

“That cabinet is empowered to make these decisions with the public being denied any kind of role or option is, at the very least, anti-democratic and at its worst you could even look at it as creating a kind of despotic situation around these issues,” says Chris Genovali, executive director of the Raincoast Conservation Foundation.

Raincoast Conservation Foundation Applying to Supreme Court For Review of Interpretation

On September 21, Ecojustice applied on behalf of Raincoast to the Supreme Court of Canada for leave to appeal.

If leave to appeal is granted — which fewer than 10 per cent of applicants receive — the country’s highest court will proceed to determine whether the Federal Court of Appeals erred in its interpretation of Sections 29 to 31 of the new CEAA.

Barry Robinson, lawyer and national program director for Ecojustice, says that since the former CEAA was introduced in 1992, the public could challenge reports on the grounds that there were perceived errors or omissions.

In the case of the Northern Gateway, such alleged errors included the review panel not considering the impacts of the project on humpback whales and other at-risk species, as well as evidence that diluted bitumen would sink in water and seriously complicate clean-up efforts.

“Most of the cases said that what you need is a legally prepared report before you make any decision based on that report,” Robinson says. “Just in this Gateway case was the first time the court said ‘well, actually, only the governor in council [or federal cabinet] can decide whether the report was legally prepared.’ We just kind of went ‘that doesn’t sound consistent with past case law.’ ”

How Harper’s Changes to Environmental Laws Are Being Leveraged by #Pipeline Companies https://t.co/sJcCDAu7rf @james_m_wilt #cdnpoli #bcpoli

— DeSmog Canada (@DeSmogCanada) October 14, 2016

Kinder Morgan Already Referenced Precedent in Attempts to Dismiss Challenges

Robinson notes that in a bit of an odd twist, the courts spent a significant chunk of time interpreting Sections 29 to 31 of the new CEAA but ended up not actually applying it to Northern Gateway as there were other transitional provisions that applied.

“In fact, throughout the whole thing, the court was analyzing the wrong section,” he says.

But Genovali says that we’ve already started to see the fallout from the setting of the precedent.

Days after the Enbridge decision was announced, Kinder Morgan introduced a motion referencing the interpretation in order to dismiss a lawsuit also filed by Ecojustice on behalf of Raincoast over the National Energy Board’s allegedly flawed final report on its Trans Mountain pipeline (specifically on whether the Species at Risk Act was violated by the NEB’s actions with regards to southern resident killer whales, a critically endangered species).

Then, last month, the Federal Court of Appeal relied on the decision to deny an application by the Tsleil-Waututh First Nation over a similar issue in regards to Kinder Morgan.

“It immediately struck us as soon as this came down that this was something that had to be challenged and if we can’t get this reversed through this appeal I think the Canadian public needs to press upon the Trudeau government that they have to rectify this,” Genovali says.

“This is a vestige of the Harper era. I think if we take the prime minister and his government’s statements at face value then they need to do something about this because this would appear to contravene all of the values that he articulated during the campaign and continues to speak to.”

Robinson says that it usually takes between four to six months for the Supreme Court to decide whether to grant leave to appeal.

Given recent history, it seems likely that pipeline companies will continue to refer to the precedent until then. If the court decides not to grant leave to appeal, the precedent will be maintained and cabinet will continue to be the sole arbiters of whether an EA report was legally prepared or not.

Image: Kinder Morgan Trans Mountain pipeline construction. Photo: Transmountain.com

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There just aren’t enough lawyers in B.C. to fight all the environmental battles First Nations, individuals and groups face on a regular basis in the province, according to University of Victoria lawyer Chris Tollefson.

As a solution, Tollefson, the founder of the University of Victoria’s Environmental Law Centre, and a handful of legal experts and litigators recently launched a new public interest environmental law outfit that will take on some of the most powerful forces in B.C., from Malaysian-owned Petronas to government ministries to BC Hydro.

The new legal non-profit, the Pacific Centre for Environmental Law and Litigation (CELL), will focus on environmental litigation, legislative reform and, as Tollefson describes it, “training up the next generation of young public interest environmental lawyers.”

Tollefson, who served as a former president of Ecojustice, one of Canada's most prominent environmental legal non-profits, said there is more work than existing organizations can handle.

That sentiment is echoed by Bob Peart, executive director of Sierra Club BC, and one of the centre's first clients. 

"I think litigation is vital and it's so hard to move this government in any other way," Peart told DeSmog Canada. "You can build up the wall of public noise as much as you like but litigation seems to be a lever they at least half listen to."

Illegal Site C Permits at Centre of First Case

The organization launched with a case aimed at the B.C. Ministry of Forests, Lands and Natural Resource Operations for allegedly issuing illegal permits to expedite BC Hydro’s Site C construction work, as DeSmog Canada first reported.

The Centre filed for a judicial review of those permits last week in the B.C. Supreme Court on behalf of the Sierra Club BC and citizen Josette Weir.

Peart said the issue of the illegal permits reminds him of other stories of government corruption.

"The first reaction I had was thinking of the triple delete e-mails," he said. "What's the difference between 'you erase those e-mails' and someone saying 'please, wink, wink, nudge, nudge, can you approve this?' "

Peart said there is a long-standing tradition of using litigation to advance environmental issues and to hold government to account, but the need for that strategy is increasing over time.

Violating permitting rules or skirting proper consultation with First Nations seems to part of the due process with the current government, he said, adding they have come to expect litigation..

"It's a spin of the dice, risk analysis on their part."

Tollefson said the illegal Site C permits are a reminder of the importance of challenging government activity in the courts and holding government to account.

“That is exactly the kind of case CELL was created to take on,” Tollefson said. “This is the kind of situation that desperately needs to be brought to the courts for adjudication.”

“The evidence here suggests that a government official not only didn’t follow the rule of law but was actively assisting BC Hydro in breaking the law. If that’s true that should concern all British Columbians regardless of how they feel about Site C."

New Public Interest Law Office to Fight BC’s Biggest Enviro Battles https://t.co/VjwsCm1GjN @pcell_law #bcpoli pic.twitter.com/lN5NWeG5Ve

— DeSmog Canada (@DeSmogCanada) July 29, 2016

Training Next Generation of Public Interest Environmental Litigators

Tollefson said the new organization will also focus on inspiring and training the next generation of B.C.’s environmental lawyers.

“We believe very much that the best way and maybe the only way to train young lawyers to be litigators is to bring them into ongoing cases, to make them part of a team that is working on a piece of litigation together.”

The centre will work closely with the University of Victoria’s Environmental Law Centre where Tollefson and law students have taken up cases aimed at the Northern Gateway pipeline review process or an expanded aluminum smelter in Kitimat, B.C.

Anthony Ho, a recent graduate of the University of Victoria’s law program, said he is excited to join the centre and continue on with some of the important litigation work he experienced through the Environmental Law Centre.

“There’s no end to the important public interest cases that could be brought all across Canada, but especially in B.C.,” Ho said.

Major pipeline proposals, energy projects like Site C, fracking and other energy development in the province have generated a significant level of public awareness around the need to balance economic development with environmental protection, Ho said.

“I do believe that British Columbians are becoming more and more aware of their environmental rights and more and more supportive of the idea that those rights need to be protected and if necessary vindicated through the justice system.”

Ho said the practice of public interest environmental law means ensuring citizens are able to bring cases forward that protect their environmental rights and bolster their access to justice, despite a lack of capacity or resources.

“If there aren’t lawyers out there or environmental law organizations out there who are able to take on those cases on a pro bono basis and represent those citizens and citizen groups in bringing forward these pieces of litigation then as a society we lose the chance to ensure that environmental justice is done.”

Once in a Generation Opportunity to Fix Broken System

Tollefson said a major focus for the centre will be on legal reform, especially when it comes to the review of major development projects.

The Trudeau government campaigned on a promised to make Canada’s pipeline review process more robust but has so far failed to deliver on that promise for major pipeline projects under review like the Kinder Morgan Trans Mountain and TransCanada Energy East pipelines.

The government has also promised to review major pieces of legislation like the Canadian Environmental Assessment Act that determines, in large part, how major developments like the Pacific Northwest LNG export facility are characterized during the review process.

But Tollefson said he sees a major opportunity for change.

“I think we potentially have a once in a generation opportunity here to fix a host of problems with how we do environmental assessments and how we approve major energy projects.”

“It’s a daunting task but … it’s absolutely critical that we weigh in and try to steer the federal government towards a successful completion of this project that they’ve taken on.”

Tollefson said he thinks an important part of that overhaul resides in ensuring the courts are given a mandate to supervise the work of tribunals and the work of bureaucrats in a more rigorous way.

“We believe the courts have taken a too deferential approach to reviewing the work of bodies like the National Energy Board and bureaucrats,” he said.

A new model would increase the ability of the courts to take a more hands on role in assessing if decisions, on pipelines or other major energy projects, measure up to the rule of law and procedure, he said.

“That’s something we’ll be urging the government to include in this new review.”

Image: Screenshot from Pacific Centre for Environmental Law and Litigation. Salmon image: Ian McAllister

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By Chris Tollefson for IRPP.

The Trudeau government has recently announced a sweeping review process that could culminate in what has been described as “the most fundamental transformation of federal environmental law in a generation.” This review, among other things, will determine the fate of the controversial law that governs federal environmental assessments, known as the Canadian Environmental Assessment Act, 2012 (CEAA, 2012).

Ironically, CEAA, 2012, a statute that the Harper government radically revamped to be industry-friendly, nowadays has very few friends. Even key industry insiders admit that the legislation, aimed primarily at expediting the approval of major new resource development projects, has been a spectacular failure. Not only are many major environment assessments (EAs) that are underway under CEAA, 2012 stalled, mired in controversy, tied up in litigation (or all of the above), but more importantly, Canadians have lost trust in the way we assess and make decisions about these projects.

Can CEAA, 2012 be renovated, or is it a tear-down? There are at least ten good reasons to believe the latter.

1. Trust. During the last federal election, a key theme that resonated with many voters was Mr. Trudeau’s claim that the institutions and processes we have put in place to assess major new projects have lost the trust of Canadians. Once lost, trust is not something that is easily regained. Band-Aid solutions that seek to remedy the deep-seated flaws of processes by annexing new reviews (such as creating a new consultation panel after the NEB’s review of the Kinder Morgan Trans Mountain Expansion (TMX) project), have little or no chance of restoring trust let alone the social licence upon which such projects must ultimately depend.
2. The need for a new approach to EA. Our current EA system is primarily focused on identifying whether proposed projects will have “significant” adverse environmental effects. This approach is misguided. Large, controversial projects should not be able to secure approval simply because the proponent’s scientists manage to persuade federal regulators that the predicted adverse effects of a project fall below this ill-defined “significance” threshold. We need assessments to do more than generate predictions about the significance of a project’s adverse effects. Future assessments should instead ask, as Robert B. Gibson, Meinhard Doelle and A. John Sinclair advocate, will this project make a net contribution to our sustainability as a nation? This question becomes especially critical post-Paris. In Warren Buffett’s words: “Predicting rain doesn’t count. Building arks does.”
3. The National Energy Board. Under CEAA, 2012, the National Energy Board (NEB) was given exclusive jurisdiction over federal EAs involving pipelines and other major energy projects. This was a job the NEB neither wanted nor was suited to. Traditionally, its wheelhouse has been technical issues, such as pipeline thickness requirements, not the value-laden or science-driven questions that the Canadian Environmental Assessment Agency is more accustomed to dealing with. And while the NEB approves projects based on a “public interest” test, it has tended to regard the public interest as being largely synonymous with the interests of western Canadian energy producers. To secure the trust of Canadians, federal EAs need to be conducted by an agency that has the expertise and the independence from the interests it is charged with regulating.
4. Catastrophic but “unlikely” project effects. Increasingly, companies have been able to persuade the NEB to interpret CEAA, 2012 in ways that undermine its most basic purposes, including its obligation to assess projects in a manner consistent with the precautionary principle. For instance, in the Northern Gateway and TMX review processes, proponents of the projects argued that they should not be required to model the effects of a large catastrophic oil spill because the odds of such a spill were not “likely” (i.e., less than 50 percent probable). As BC Nature argued in its legal challenge against the Northern Gateway approval, such an interpretation of CEAA, 2012 which the NEB accepted, deprives the ultimate decision maker (a responsible minister or the cabinet) of key information about the potential catastrophic impacts of a project, simply because the disaster is not statistically likely to happen.
5. Federal leadership. For major projects, especially those with serious climate change implications, the federal government should not allow the provinces simply to take on responsibility, or substitute (“sub in”) for doing the required federal EA. The federal government gave itself the power to agree to substituted EA’s under CEAA, 2012, primarily at the urging of the province of British Columbia. Since then, B.C. has been given permission to sub in for the federal government on fourteen occasions; mainly on mines and liquid natural gas project assessments. These delegation arrangements raise serious public trust issues, particularly given the perception that provincial assessments are less rigorous and more prone to regulatory capture. A case in point is theTaseko mine review that swiftly secured EA approval from B.C., but was later twice turned down by federal EA assessors. A new generation EA system should encourage mutual cooperation and integration, and eschew delegation of key assessment duties.
6. Provincial leadership. For similar reasons, the provinces should not hand off the ball to federal agencies to do EAs that profoundly affect provincial interests. Effective EA require both levels of government to show leadership. At around the same time that the B.C. government was gearing up to lobby Ottawa for the right to sub in for the federal government under CEAA, 2012, it also inked an agreement with the NEB that delegated to the feds the province’s power to assess and render an EA decision on all future major energy projects (including Northern Gateway and TMX). In a powerfully worded decision, the B.C. Supreme Court recently called this agreement an “abdication” of provincial responsibility. B.C. now finds itself in the unenviable and difficult position of conducting its own assessment of the Northern Gateway and TMX applications, after the fact.
7. Cumulative effects. CEAA, 2012 fails almost completely to grapple with one of the most pervasive and vexing issues in environmental assessment: the phenomenon of cumulative effects—predicted changes to the environment from a proposed project in conjunction with past, present, and future projects or other activities in the same region. For those who work in EA, the pressing need to be more rigorous and systematic about how we account for cumulative effects is beyond dispute. In Northern Gateway, one of the few cases where a federal agency found that there were likely to be significant adverse cumulative effects on an endangered species (the iconic Woodland Caribou), that same agency recommended that the effects were “justified in the circumstances” without offering reasons other than the project was in the public interest. We need to fundamentally rethink the way we assess and make decisions about cumulative effects. And because the nature of those effects can often implicate national interests, it is essential that the federal government take leadership.
8. Aboriginal rights and title. Some of the loudest voices in the chorus of those calling for the complete repeal ofCEAA, 2012 are Indigenous Peoples. And understandably so. There is complete and utter confusion over the role of EA authorities, as opposed to other processes and venues, in discharging the Crown’s constitutional duty to consult. This is a key issue that the Federal Court of Appeal addressed in its recent decision in the Northern Gateway case. Now that Canada has finally adopted the United Nations Declaration on the Rights of Indigenous Peoples, it is time for it to turn its mind to how to redesign federal EA in a manner that complies with its legal duties and responsibilities under domestic constitutional and international law.
9. Independent science. CEAA, 2012 depends heavily on the science put forward by industrial proponents and their hired consultants. It is then largely left to the community organizations, conservation groups and First Nations to bring forward scientific evidence that casts doubt on the proponent’s science. This model assumes that such groups have the capacity and opportunity to present competing science; it also assumes that the process will assess and weigh these competing scientific perspectives in a sound, fair and balanced way. The recently concluded NEB assessment in TMX underscores just how misplaced these assumptions are. At a minimum, contrary to the approach adopted by the NEB in TMX, where there is conflicting scientific evidence on key issues before the reviewing agency, federal law should require that the reviewing agency order cross examination to help ensure that the applicable federal decision-maker has a proper evidentiary record upon which to make a decision about the fate of the project. Moreover, agencies should be required to render reasons in project assessments that take into account relevant independent science.
10. Paris. Perhaps the biggest single reason why CEAA, 2012 is now completely outmoded and must be re-engineered from the ground up is Canada’s new international commitments under the Paris climate agreement. This agreement obliges Canada to do its best to help keep average global temperature increases below 1.5 degrees C. This commitment means that we have now embarked on the path of decarbonizing our economy. The implications of this are only now sinking in. Going forward, the federal government, as of January 2016, now requires all new major energy projects to be assessed for their direct and upstream GHG emission effects. For projects currently being assessed under CEAA, 2012, this new climate test is being conducted as an add-on to the EA done by the originally assigned agency. The quality of these add-on climate assessments is mixed. While some have been quite sophisticated (Woodfibre and Petronas) others (including TMX and Enbridge Line 3) have been more superficial, particularly in their treatment of upstream GHG impacts. If we are to chart a realistic path towards complying with our Paris commitments, these analyses must become a central feature of a new generation federal EA law, and be carried out by credible and independent scientists.

There are many more reasons why it is necessary to re-engineer our federal environmental assessment law from the ground up. Among them is the need to make room for new ideas, perspectives and processes that can bring Canadians together. CEAA, 2012 did just the opposite. Paradoxically, however, the discontent and appetite for change that the CEAA, 2012 reforms have generated may well have created precisely the right conditions for the once-in-a-generation law-making opportunity that lies ahead.

10 Reasons #Ottawa Should Rebuild Our #Environmental #Assessment Law from Scratch https://t.co/qhToexSlQ9 … #cdnpoli pic.twitter.com/r6yAeswgEx

— DeSmog Canada (@DeSmogCanada) July 18, 2016

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A new report released Wednesday chronicles the changes made to Canada’s environmental laws under the federal Conservatives since they formed government in 2011.

The report, released by West Coast Environmental Law and the Quebec Environmental Law Centre, highlights “the repeal or amendment of most of Canada’s foundational environmental laws since 2011” and suggests many of the changes were a “gift to industry.”

“The record suggests that industry lobbied hard for removing environmental protections that it believed were impeding business,” the report states.

Major changes include the weakening of the Navigable Waters Protection Act, which removed 99 per cent of Canada’s lakes and rivers from protection, as well as changes to the Fisheries Act and the Species at Risk Act.

Weakening of the Canadian Environmental Assessment Act means approximately 90 per cent of major industry projects that would have undergone a federal review no longer will, according to the report.

Karine Peloffy, director general of the Quebec Environmental Law Centre, said Canada’s environmental legislation is intrinsically tied into the fabric of the country’s democracy.

“Our waters, species, and our very democracy have been put at risk by changes made to our environmental laws since 2011,” Peloffy said.

“When these legal changes were first brought in, we could only speculate about the impacts they would have on Canadians and the environment. Unfortunately, our analysis indicates that our fears have been borne out on the ground.”

Summary of environmental law changes from Canada's Track Record on Environmental Laws 2011-2015.

The majority of the legal changes were pushed through via omnibus budget legislation, something the current Conservative government has employed more than any previous government.

The report refers to omnibus budget bill C-38 (voting record here) and C-45 (voting record here) as “two critical blows” to environmental law “in order to streamline approval processes for risky or controversial industrial activities.”

“Basically all of the main changes that were made to federal environmental laws in those two omnibus budget bills, C-38 and C-45, were made at the request of industry,” West Coast Environmental Law Association staff counsel Anna Johnston, author of the report, told DeSmog Canada.

“We have the evidence to show that.”

The report is accompanied by a comparison of federal party platforms as they relate to environmental law (see below).

Platform promises put forward by the NDP, the Green Party and the Liberal Party reflect the public’s concern about the way environmental laws have been altered in recent years.

Johnston said the result of weaker environmental laws is that the public is pushed out of the democratic process.

“I think there’s a lot in the three platforms about that — about including Aboriginal peoples, the public and other stakeholders groups — not just industry — in developing and ensuring the implementation of environmental laws.”

Changes made to the Canadian Environmental Assessment Act limit public participation to “interested parties” — those who can demonstrate they are “directly affected” by a project or have relevant expertise that relates to the project.

As a result of this law, hundreds of British Columbians were barred from participating in the review process for the expansion of the Kinder Morgan Trans Mountain pipeline, leading to a loss of public confidence in the process.

Johnston said that loss of confidence in process has led to significant social unrest in Canada.

“If you have a process that is a sham process the public is going to feel ripped off and eventually they are going to find a way to have their voices heard,” she said. “Which is why we see people getting arrested on Burnaby Mountain, forming protests up in Fort St. John against Site C, and the formation of Idle No More.”

Johnston said stronger environmental laws that carve out a space for public participation, on the other hand, help alleviate this kind of social distress.

“With meaningful participation, even if people don’t agree with the end results, they feel like they’ve had their concerns heard.” 

“I think that tends to reduce the amount of civil disobedience and the amount of proceedings brought to the courts. And I think it results in better assessments, because you have more information and evidence and testing of evidence,” Johnston said.  

Party platform comparisons from West Coast Environmental Law and the Quebec Environmental Law Centre can be seen below. Click on images for full report:

Image: Chris Yakimov via Flickr

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Major natural gas projects and ski resort developments now have the option of being built in B.C. without environmental assessment after the Liberal government quietly deposited two orders in council Monday. (Update April 17, 2014: The B.C. government has rescinded this decision. Read our new post here)

The orders — passed without public consultation — include changes to the Reviewable Projects Regulation under the provincial Environmental Assessment Act, which eliminate mandatory environmental review of new and/or modified natural gas and ski facilities. As a result, proposed projects like the Jumbo Glacier Resort or new natural gas processing facilities may skirt the approval process without standard environment review, which involves public consultation.

“These regulatory changes only heighten the crisis of public confidence in B.C.’s environmental assessment process,” said Jessica Clogg, executive director and senior counsel with West Coast Environmental Law Association (WCEL) in a press release.

“Environmental assessments are supposed to allow the public and regulators to better understand and avoid potential risks. Removing the requirement for an environmental review is not in the public interest.”

Changes to affect currently proposed projects

The Jumbo Glacier Resort, a $900-million mega resort proposed for 6,000 hectares of B.C.’s Purcell Mountains, has been stuck in planning-stage limbo for two solid decades. Despite significant provincial support, the development still faces a number of hurdles, the most notable of which is an unresolved legal challenge brought against the resort by the Ktunaxa Nation. If construction doesn’t begin by October 2014, the development faces losing its environmental approval certificate.

Changes made to the Reviewable Projects Regulation may ease the recertifying process without requiring public consultation or environmental oversight.

“It appears to be a stunning attempt to keep the ill-fated Jumbo Resort proposal afloat, funded by the misappropriation of British Columbian's taxpayer dollars,” said Wildsight’s Robyn Duncan.

During a recent public consultation more than 1,300 letters of opposition were submitted from across B.C.

“Assessing the environmental and social impacts of any such project should be a basic requirement,” Duncan said. “Exempting projects like Jumbo from the environmental assessment process closes the door on informed decisions in regard to environmental and social impacts.”

Potential loss of oversight for B.C. natural gas projects

The lack of oversight will also influence B.C.’s rapidly expanding natural gas sector. New natural gas processing plants may now be approved without a provincial environmental assessment.

Anna Johnston, staff counsel at WCEL, says that the changes could have severe consequences for local communities. “Now for natural gas production facilities there is no public review. Once there is no longer an environmental assessment, there is no mandatory public consultation.”

“It’s really concerning with these natural gas facilities, because there are so many of them. The province wants to grow this industry and there is a lot of related infrastructure, roads, and pipelines,” she told DeSmog Canada.

“They have a huge impact on habitat and water.”

Under existing law companies will still have to notify affected landowners and First Nations but not the general public.

Proposed liquefied natural gas (LNG) facilities for the central coast will still be subject to environmental assessment, says Johnston, because they store fuel and so fall under a different review category.

According to WCEL, the B.C. Environmental Assessment Office claims the changes “are designed to reduce duplication with regulation by the Oil and Gas Commission and the Ministry of Forests, Lands and Natural Resources Operations.”

However, “these changes go far beyond avoiding any possible duplication,” Johnston wrote in the WCEL press release.

“Environmental assessments are an essential and distinct part of any development process. With these changes, the province has eliminated the kind of fact-finding process and analysis that is required for responsible decision-making.”

“Public participation is necessary for social buy-in,” she said. “Governments can only keep restricting citizens’ rights to have their say in the projects that affect them for so long.”

The changes are especially significant after the weakening of the federal Canadian Environmental Assessment Act, which places the responsibility and burden of environmental assessments upon the provinces.

Image Credit: CCPA Fracking Up our Water, Hydro Power and Climate: BC's Reckless Pursuit of Shale Gas 

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