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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Scientists and environmental groups breathed a sigh of relief when Prime Minister Justin Trudeau quickly followed through on a campaign promise to modernize Canada’s environmental laws.

Within a year of being elected, the Liberals initiated four parallel reviews of key environmental legislation weakened or eliminated under former prime minister Stephen Harper.

But now, as that review process is coming to a close, experts are back to holding their breath.

“There is a real climate of concern right now,” Aerin Jacob, Liber Ero scholar and conservation scientist with the Yellowstone to Yukon Conservation Initiative, told DeSmog Canada.

The federal government’s response to bold recommendations for reforming the Canadian Environmental Assessment Act, the National Energy Board Act, the Fisheries Act and the Navigation Protection Act is “underwhelming,” Jacob said.

Federal Response to Environmental Reviews Vague, Concerning

That response — released quietly this summer in the form of a 24-page, diagram-filled discussion paper — was so scant on details experts say it’s distressing.

“This was all under the radar in a very worrying way,” federal Green Party Leader Elizabeth May told DeSmog Canada. “I just get the feeling like someone’s pulling a fast one.”

“Releasing this at the end of June with a public comment period ending August 28th, I can’t begin to imagine the average person or even the attentive environmentalist was properly alerted to the content of this document.”

ICYMI: 10 Reasons Ottawa Should Rebuild Our Environmental Assessment Law from Scratch

After multiple requests, the federal government recently extended the public submissions period until September 15.

May said the federal response lacked substance and paves the way for maintaining the devastating changes made to environmental laws under Harper.

“We’ve had all of these consultations with experts and citizens across Canada and now we end up — either by design or happenstance — with the federal government actually rejecting all the key recommendations by the panels without even explicitly saying so.”

“I’m apoplectic with rage that this is being proposed,” May said.

“Now we’re looking at mild tweaking as opposed to the massive repair of our gutted environmental laws.”

May said the regulatory system has been calibrated to serve the needs of industry.

“The changes to our laws have converted many of our agencies into a corporate concierge service to aid the approval of projects,” she said.

Linda Duncan, NDP member of parliament for Edmonton-Strathcona and Energy and Climate Change critic, said it’s troubling that the Liberals have continued to approve major resource projects while relying on “emasculated” laws and processes.

Federal approvals for several controversial projects, including the Kinder Morgan Trans Mountain pipeline, Enbridge Line 9 pipeline, the Site C dam and the Pacific Northwest LNG export facility, have been granted while the review process has been ongoing.

“The government continues to drag its heels on tabling the promised reforms,” Duncan said, adding onlookers have every right to be concerned appropriate actions won’t be taken to meaningfully restore Canada’s environmental laws.

“The initial concept paper issued by the government in response to their own expert review and public feedback is almost completely dismissive of the reforms called for,” Duncan said.

Environment and Climate Change Minister Catherine McKenna told DeSmog Canada in an e-mailed statement, “We are committed to making environmental assessment and regulatory changes that regain public trust, protect the environment, support reconciliation with Indigenous peoples and ensure good projects go ahead and get resources to market sustainably.”

ICYMI: Trudeau Promised to Fix the National Energy Board. Here’s What His Expert Panel Recommends

Pipeline and Major Project Reviews Plagued With Problems

The laws under review affect everything from fish to water to climate change to how we get energy.

“We entrust government to guide this process that helps us make decisions as a society on what kind of projects and infrastructure we want to see in our environment and on our lands,” said Katie Gibbs, executive director of the science-advocacy organization Evidence for Democracy. “That’s such a fundamental way government touches on and impacts our lives.”

Some of the most contentious project reviews in Canadian history have taken place in recent years.

The Enbridge Northern Gateway and Kinder Morgan Trans Mountain pipeline hearings were beset with problems stemming from what many have identified as a collapse of public trust in the process and Canada’s regulatory bodies.

Matters were made worse when the Harper government forced changes through the budget process to expedite project reviews and weaken public participation in environmental assessments.

Trudeau’s promise of environmental reform spoke directly to the question of how Canada could conduct more meaningful, credible scientific reviews of resource projects with a goal of selecting projects best situated to serve the public interest. (Although it’s important to note Trudeau did not follow through on an explicit promise to restart the Trans Mountain pipeline hearing under a new, modernized review process).

“These are some of the biggest challenges Canadians face today and we have a real opportunity to do things better,” Jacob said.

Is Trudeau Quietly Turning His Back On Fixing Canada’s #Environmental Laws? https://t.co/x9EcM6Nq6B @LindaDuncanMP @ElizabethMay #cdnpoli

— DeSmog Canada (@DeSmogCanada) September 12, 2017

Federal Position Big Step Back From Bold Expert Recommendations

However, the federal government’s discussion paper takes a big step back from the panels’ bold recommendations, Jacob said.

In partnership with 24 other scientists, Jacobs spearheaded the writing of a report, Strong Foundations, that identifies gaps in the government’s response.

“Some of the gaps we talked about mentioned, for example, that we need to have decision rules. These rules would lay out how government — cabinet or the minister, whoever makes the final decision on an environmental assessment — how they came to that decision,” Jacobs said.

Environmental assessments incorporate multiple streams of information, including science produced on behalf of a project proponent, third-party reviews, academic research and traditional Indigenous knowledge.

“All of this information is taken into account in how we make decisions but unless you clearly lay out what role those things play in a decision, it remains a black box.”

ICYMI: Strategic Assessments: A Surprisingly Simple Solution to Canada’s Stalled Energy Debate

Jacobs said the report also touches on the need for greater transparency in the use and sharing of data, incorporation of the precautionary principle, assessment of regional and cumulative impacts as well as impacts of projects on larger national goals like Canada’s climate commitments under the Paris Accord.

Gibbs said Canada has the opportunity to become much more strategic in how and when it uses environmental assessments and what role science plays in those processes.

“One big issue that is left unaddressed is what will even trigger an environmental assessment. Even if you do have an incredibly strong environmental assessment process, if you don’t have a strong evidence-based trigger for what projects actually go through that process, it could end up being meaningless,” Gibbs, a co-author of the Strong Foundations report, said.

Jacob, Gibbs and their co-authors submitted their report to the federal government as part of the discussion paper’s public comment period.

ICYMI: Open Science: Can Canada Turn the Tide on Transparency in Decision-Making?

Fatal Flaws Not Addressed…Yet

Chris Tollefson, lawyer with the Pacific Centre for Environmental Law and Litigation, said the Liberals could take a political hit for missing this generational opportunity to repair legislation.

”The government will have to realize the risk it’s taking here by potentially reigning in its aspirations and rolling over to industry pressure,” he said.

The government has been under tremendous pressure both in terms of lobbying and also tight review timelines, Tollefson said, and that could account for some of the gaps in its current position.

Of prominent concern to Tollefson, who has represented numerous individuals, environmental groups and First Nations in hearings and legal challenges of major projects, is the use of science bought and paid for by project proponents.

“In that respect the current model is fatally flawed,” he said.

One of the panel’s recommendations for environmental assessments is that Canada move to a model that relies on truly independent, cutting-edge science.

“That is a game changer,” Tollefson said.

“If we miss this opportunity to think more broadly about how we assess major projects, to put them into the proper social, environmental and economic context they deserve, that really is a missed opportunity we potentially won’t have for another generation.”

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The Tsilhqot’in First Nation — currently under an evacuation order due to B.C.’s wildfires — learned Monday that permits have been issued for mining company Taseko to conduct exploration for the New Prosperity mine, an open pit gold and copper mine twice rejected at the federal level.

Monday was the outgoing B.C. Liberal government’s final day in power.

Copies of the documentation obtained by DeSmog Canada show the permit was granted to Taseko on Friday July 14th, as members of the Tsilhqot’in were under evacuation orders due to rampant wildfires in central B.C.

“I appreciate this may come at a difficult time for you given the wildfire situation affecting some of your communities, however I made the permit decision Friday, ” Rick Adams, senior inspector with the B.C. Ministry of Energy and Mines, told Tsilhqot’in representatives in an e-mail.

“It’s crazy to see that on their last day, they tell us of this decision,” Chief Roger William of the Gwet’in First Nation, one of six member tribes of the Tsilhqot’in, told DeSmog Canada.

“We’re certainly outraged about it,” he said. “Our people, they found out as we’re dealing with fire and now we’re dealing with a three-year drilling program.”

The permits grant Taseko permission to create 76 kilometres of new or modified trails, 122 exploratory drill holes, 367 excavated test pits and 20 kilometres of seismic lines near Fish Lake, also known as Teztan Biny, an area of cultural and spiritual significance for the Tsilhqot’in.

“Our community has been fighting this for over 30 years,” William, who is also vice-chair of the Tsilhqot’in National Government, said. “Fish Lake is an aboriginal rights area, a place we have land rights to, to fish, and hunt, to catch and use wild horses.”

Chris Tollefson, lawyer with the Pacific Centre for Environmental Law and Litigation, said while there is no rule preventing government from issuing permits during final days in power “there is an obligation on the Crown and on government to conduct itself in a manner that upholds the honour of the Crown.”

Provinces will often issue permits or issue approvals in advance of a federal process, which is intended to signal their support of the proponent, Tollefson told DeSmog Canada.

“During the federal review process they’ll often be a cheerleader for the projects. We’ve seen that regularly in B.C.,” he said.

“What’s unusual here is the federal regulators have been pretty clear this project has some fundamental flaws, so in those circumstances you’d expect the province would take a more circumspect approach when there’s a transition of government and when First Nation rights and title issues are clearly at play.”

According to the Elections B.C. website Taseko donated $123,450 to the B.C. Liberals between 2008 and 2014.

Chief Russell Myers Ross of the Yunesit’in and director of the Tsilhqot’in National Government said he is “speechless at the timing of this insulting decision.”

“It defies compassion that while our people are fighting for our homes and lives, B.C. issues permits that will destroy more of our land beyond repair.”

The New Prosperity mine falls within the Tsilhqot’in Dasiqox Tribal Park, a conservation area the nation has constitutionally protected rights to hunt, fish and trap within.

Granting exploratory permits within Dasiqox “demonstrates a serious attack on meaningful reconciliation,” Ross said in a statement.

The Tsilhqot’in have previously vowed to fight any provincial permits granting Taseko exploratory rights for the mine.

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The prospect of a new provincial government in B.C. has sparked fresh political debate about Kinder Morgan’s Trans Mountain pipeline, which is opposed by B.C.’s NDP and Green Party, despite already receiving provincial and federal approval.

“There are no tools available for a province to overturn or otherwise block a federal government decision,” stated Alberta Premier Rachel Notley this week.

But is that really the case?

The short answer is no.

“There’s no question that B.C. has tools in its toolbox, which it has not yet used and that it should use,” says Jessica Clogg, executive director and senior counsel at West Coast Environmental Law.

That very prospect has drawn incendiary commentary, including claims by the Canada West Foundation that a reversal of the approval “strikes at our very democracy.”

On the contrary, B.C. Green Party Leader Andrew Weaver argued in the Globe and Mail that reconsidering Trans Mountain, which would increase the number of oil tankers plying B.C.’s waters seven-fold, would be a “triumph of democracy.”

“If we care about the integrity of democracy, we are honour-bound to reconsider the Trans Mountain decision,” he wrote. “Federalism doesn’t mean that one province gets to tread on the rights and threaten the environment of another.”

Indeed, many of the seats the B.C. Liberals lost were in Lower Mainland ridings, such as Burnaby, that would be most affected by the new pipeline.

Industry analysts are already sounding the alarm before Kinder Morgan’s proposed $1.3 billion IPO for its Canadian unit.

“The really close B.C. election vote puts pressure on the Kinder Morgan IPO,” Colin Cieszynski, chief market strategist at CMC Markets, told Reuters. “You run the danger of the whole thing getting stalled for years or going into limbo.”

With that in mind, here are three ways a new B.C. government could stop — or at least delay — the Trans Mountain pipeline.

1) B.C. Government Could Order Its Own Environmental Assessment

Revisiting a provincial environmental assessment is one of the most obvious means by which the B.C. government could “overturn or otherwise block” the construction of the Trans Mountain Pipeline, says Chris Tollefson, executive director for the Pacific Centre for Environmental Law and Litigation.

“I think that avenue is quite plausible given the fact that process wasn’t robust and raised serious questions — and continues to raise serious questions — about consultation with First Nations,” he says.

A January 2016 verdict by the B.C. Supreme Court in favour of Coastal First Nations (CFN) and Gitga’at First Nation stated that the province has to make a clear decision about its environmental assessment process (rather than simply continue to accept the federal assessment as its own through an “equivalency agreement” with the National Energy Board).

That presented a chance for B.C. to do its own environmental assessment to fill the holes of the National Energy Board review — holes the B.C. government itself had pointed out.

But instead of doing that, B.C. quietly confirmed in March 2016 that it had accepted the heavily criticized National Energy Board report as its own.

A new government could examine what the province’s Environmental Assessment Office (EAO) decided, conclude that it wasn’t adequate and order a proper environmental assessment.

Tollefson says it would be “perfectly within the rights of British Columbia to do that” given the well-documented flaws in the National Energy Board review of the Kinder Morgan project, which restricted public participation, ignored impacts on marine mammals and ecosystems, excluded cross-examination of evidence and failed to assess potential upstream emissions.

Some would make arguments that a government can’t change its mind after the fact, he says. But Tollefson suggests that governments change their mind all the time, and it’s a “function of democratic politics: that you elect government that make course corrections.”

“If the previous government — and in this case, the EAO — made a poor decision, British Columbia should be allowed to fix it,” he says. “That doesn’t mean that B.C. can kill the project, or delay it indefinitely. It just means that British Columbia finally will take a proper look at and make a proper assessment of this project.”

2) New Legislation

Another option for a new B.C. government would be to introduce a piece of legislation that directly pertains to the pipeline. For example, Clogg suggests an act that orders a health and safety assessment for the project, or requires the conducting of further studies.

This would lead to better information and a broader understanding of the risks of the project, as well as help to ensure that indigenous peoples are fully included in the process.

Clogg says such a process could technically result in the federal government choosing to challenge it under constitutional law, potentially going all the way up to the Supreme Court of Canada and delaying the process for many more years.

But she suggests it would be “extremely politically risky” for the federal government.

“Just because you could legally challenge a B.C. ‘no’ and after years and years in court you might win, think about the political risks in them doing that,” she says.

“B.C. definitely has the ability to act to protect things that are within its constitutional jurisdiction, it has independent obligation to do right by indigenous peoples — and many of them are very opposed to the project — and it would be nothing but a good thing to do that work, to enable it legislatively, and see where the cards fall,” she said.

“I wouldn’t want to be the federal government who made that choice to try stand down British Columbians.”

3) Wait for Legal Challenges to Play Out

Tollefson adds that there are a series of legal challenges pending that are brought by indigenous nations, conservation organizations and municipalities. Those will take time to be dealt with by the courts, he says.

“I don’t anticipate this project will be able to move forward until those challenges are dealt with,” he says.

The Alberta government was granted intervener status in the upcoming judicial review about the Trans Mountain pipeline, which is anticipated to take place in the fall.

Only time will tell what happens on that front.

But both Clogg and Tollefson emphasize the same thing: so long as it’s under the rule of law, the next B.C. government will have a wide range of options available to it to ensure the Trans Mountain Pipeline benefits its citizenry.

“Their main regulatory obligation in relation to this project relate to the environmental assessment that they should have done and never did, and their duty to ensure that projects such as this do not proceed until they’ve fully discharged their duty to consult First Nations,” Tollefson concludes.

“I think on both of those fronts, a new government may well conclude that there’s more work to do.”

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By Chris Tollefson, Executive Director Pacific Centre for Environmental Law and Litigation.

Early on in its remarkably candid treatise released today, the Expert Panel tasked with advising the Trudeau government on how to modernize the National Energy Board (NEB) observes that the issue it was asked to grapple with “is much larger than simply the performance of the NEB in and of itself”: read the panel report here.

Indeed.

Since the 2013 Northern Gateway pipeline hearings, our national energy regulator has been buffeted by one controversy after another.  The NEB must bear some of the blame for this.  Its work on the Northern Gateway, Kinder Morgan and Energy East files underscore that its expertise does not lie in the realm of environmental assessment.  But it is also a victim of history — an institution conceived and born in an era (almost 60 years ago) long before Indigenous rights, climate change and decarbonization had political, let alone legal, salience.

A key question confronted in this review was what role, if any, should be played by the NEB (or its potential progeny) going forward. Historically, the core role of the NEB was regulating the construction and operation of interprovincial and international energy infrastructure, particularly oil and natural gas pipelines.  

Yet, while the NEB has been legally responsible for reviewing proposed new infrastructure projects on a broad public interest-based test, it has been reluctant to grapple with broader, more policy-infused questions — including climate change, environmental impacts and Indigenous rights. 

The NEB’s reluctance and failure to grapple effectively with these questions has led to substantial delays, conflict and litigation.

In a breathtaking understatement, the Expert Panel observes: “The current process is frustrating for everyone.”

Will a Repackaged National Energy Board Be Able to Meet Canada’s 21st Century Challenges? https://t.co/mUOLZBeWMM @pcell_law #cdnpoli pic.twitter.com/jvpfOpB7vp

— DeSmog Canada (@DeSmogCanada) May 16, 2017

Ultimately, the Expert Panel concludes that the NEB should pass the torch to a newly created body: the Canadian Energy Transmission Commission (CETC). Though the NEB would cease to exist, the CETC would continue to carry on many of the NEB’s core technical and regulatory functions.  

A key challenge for the CETC will be to restore the trust of Canadians through a suite of recommended reforms aimed at “living the nation-to-nation relationship,” aligning energy infrastructure decision making with “national policy goals,” promoting public engagement, and improving regulatory efficacy.

Going forward, the Expert Panel recommends that new pipelines and other significant energy infrastructure should initially be assessed for their “alignment with the national interest.” This would be where climate impacts, cumulative effects, and Indigenous rights implications are considered. This process would conclude with a determination by Cabinet. 

If Cabinet gives its blessing, the CETC and the Canadian Environmental Assessment Agency would then jointly turn their minds to what the Report refers to as “licencing issues,” essentially ways to ensure that the various adverse impacts of the project under review are mitigated.

Stage one of the process would conclude within one year. Stage two, which could include public hearings and would culminate in a decision by the Joint CETC/CEAA panel, could take up to two years.  This bifurcation of the process, with an upfront ‘political’ decision by Cabinet followed by a technical review focussed on implementation issues, closely tracks what various business interests involved in the EA and NEB Modernization processes have been calling for.

Can a repackaged (yet not repurposed) NEB meet the array of 21st century challenges that await?  The approach recommended by the Expert Panel does not inspire confidence.

Nobody is arguing that the technical, safety and data collection functions currently vested in the NEB should be eliminated. These regulatory functions are important and need to be assigned to an appropriate government agency.

What the Expert Panel fails to address, however, is the need fundamentally to reform the assessment that major energy projects must undergo before we, as a society, allow them to proceed. These assessments must be capable of supporting informed, transparent and defensible social choices about future development.  This is quite different from regulatory processes that are principally aimed at mitigating anticipated harms.

For well over a generation, we have adopted an approach that allows projects, even quite ill-advised ones, to go ahead unless it can be shown that they will likely cause significant adverse effects, or if those effects can be justified on a vague “justified in the circumstances” rationale. 

One of the most noteworthy contributions of the Expert Panel report on reforming CEAA, 2012 was its recommendation that we move beyond this significance-based model, towards one that tethers project-level decisions to a rigorous assessment of whether the project will entail a net contribution to sustainability.

Pivoting from an approach that focusses on whether a project’s opponents can prove it will cause significant harms towards one that calls upon a project’s proponents to show it can be sustainable is an elegant reframing of what is often a dead-end debate. And a move that just might be a game changer.

Unfortunately, on this key point, the NEB Modernization Expert Panel report and the CEAA, 2012 Expert Panel report are like ships in the night. While regrettable, this failure to engage is not all that surprising.

The complexities of social choice have never been the NEB’s forté. The NEB Modernization Panel was assigned a triage mission whose overarching aim was to identify a set of core functions that can be properly assigned to Canada’s energy regulator.  In rolling back the NEB’s role to focus on regulatory issues, the Expert Panel’s report does precisely this.  

However, where this Expert Panel has failed, and where the CEAA, 2012 Expert Report adds enduring value, is in confronting the legitimacy crisis that pervades decision making around fossil fuel infrastructure development. In determining what advice to follow, the Trudeau government should bear this in mind.

Image credit: Zack Embree

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.

Hope may finally be in sight for fixing Canada’s environmental assessment process, after a four-member expert panel released a promising report on the heels of consultations in 21 cities across the country.

Historically, the focus of Canada’s environmental assessment has been on “avoiding harm” and “significant adverse impacts” associated with new projects, but the new approach recommended by the panel would shift the focus to a “net contribution to sustainability,” said Anna Johnston, staff counsel at West Coast Environmental Law.

“The recommendations that the panel has made address a number of the concerns that were raised by the scientific community,” said Aerin Jacob, conservation scientist for the Yellowstone to Yukon Conservation Initiative. “I was pleasantly surprised.”

A key recommendation is to establish an arms-length independent agency with a broad mandate to administer environmental assessments — including gathering information, conducting the review and making the final decision (although cabinet would retain the ability to appeal). This recommendation would take reviews out of the hands of other agencies, such as the National Energy Board.

Another crucial recommendation is for government to move to a model in which the proponent continues to fund the science, but the actual science itself will be provided by independent professionals hired by the government.

“It recognizes that environmental assessment has to be integrated with assessments of the various other impacts, the costs and the benefits,” said Chris Tollefson, executive director of Pacific Centre for Environmental Law and Litigation and a law professor at the University of Victoria. “So we’re moving from an environmental assessment regime to an impact assessment regime, which is a major step forward.”

Major Overhaul of Environmental Laws Possible

There are four expert review panels currently preparing reports for the federal cabinet on environmental and regulatory processes.

Each is taking on a distinct but interrelated piece of legislation: the National Energy Board Act, the Fisheries Act, the Navigation Protection Act and the Canadian Environmental Assessment Act.

Those pieces of legislation were dramatically altered in 2012, during the Conservative government’s overhaul of Canada’s environmental laws — which sparked widespread protests across the country.

The environmental assessment panel went to 21 cities, received more than 500 online submissions and  welcomed more than 1,000 participants at engagement sessions,” according to the government.

Shift Towards ‘Impacts Assessments’ Recognizes Holistic Nature of Project Impacts

The recommended shift from an “environmental assessment” to “impact assessment” might sound like a mere semantic quibble.

But Johnston said it represents a significant move towards a more holistic “sustainability approach” that considers social, cultural and economic impacts in addition to environmental impacts. The report also recommended that environmental assessments should be conducted and decisions made in collaboration with Indigenous governments.

“It makes it clear that we have to not just look at the biophysical impacts of the project — whether there’s going to be significant adverse environmental effects — but instead to look at projects and other proposals in a more holistic way that looks at their impacts on social, economic, cultural and other important components of Canadian society,” Tollefson explained.

However, Johnston notes the report didn’t include a recommended expansion of assessment for cumulative impacts, meaning the negative effects of development from smaller projects on a landscape may still not be adequately evaluated.

Information from Environmental Assessments to Be Made Public

There’s also the issue of information sharing.

Jacob of the Yellowstone to Yukon Conservation Initiative says that one of the things she’s most excited about is a recommendation to make all data from environmental assessments publicly available. While the details are still unclear, Jacob says it would include information sharing and both baseline and monitoring data.

“That’s really key,” she says. “It goes much beyond an individual project: this is about helping Canadians know more about our country. If implemented, that would be tremendously important.

“If you want to know that somebody did something carefully and following particular standards, you have to be able to see all the details of their methods,” she adds. “It helps us build upon the shared body of knowledge. That’s critical.”

However, Jacob notes there’s still ambiguity about the independence of information collecting: although the report is “really explicit” that the new body would be impartial and the lead authority, she says there would still be a reliance on proponent-driven data.

That’s where clarification on what “best available information” looks like is needed.

“I really want to emphasize that scientists of all stripes — whether they’re at universities, working in consultancy companies or NGOs — really care about being involved in this,” she said.

Federal Government Now Seeking Responses to Report

There’s now a public comment period that’s open until May 5, 2017, giving individuals or organizations the ability to respond to the recommendations in the report. Following that, the federal cabinet will decide on changes to legislation, regulations and policies, with the government listing the estimated window of fall 2017.

Johnston said she’s been working closely with government leading up to report, and confirms the government is considering significant legislative amendments. Tollefson added that there will be “momentum towards implementation.”

“This is a real opportunity to make a huge step forward; there may be disagreements on the details but in terms of the broad sweep this is an opportunity that should not be missed,” he said.

Only time will tell how many of the panel’s recommendations are implemented. But experts agree the review process itself has bolstered confidence in the government’s interest in public consultation, which Johnston said stands in stark contrast to the processes that resulted in the changes to the 2012 legislation.

“The panel has recognized that you just don’t get quality decisions when you don’t have public values and input included in that process, and you don’t have community buy-in if the community hasn’t been able to provide their thoughts,” she said.

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The federal government’s approval of the $36-billion Pacific Northwest liquefied natural gas (LNG) export terminal proposed for Flora Bank near Prince Rupert, B.C. violates First Nations rights and was based on flawed information, according to three separate legal challenges filed Thursday at the Federal Court of Canada in Vancouver.

Representatives from the Gitwilgyoots and Gitanyow First Nations as well as SkeenaWild Conservation Trust filed court actions requesting judicial reviews of the project’s approval which granted majority Malaysian-owned Petronas permission to build an industrial export facility atop sensitive eelgrass beds at the mouth of the Skeena River in a region scientists have identified as a ‘salmon superhighway.’

“It’s important to bring this forward in a court of law so that a spotlight can be shone on not only the deficiencies in the law, but deficiencies in the way the law was applied here,” Chris Tollefson, legal counsel for SkeenaWild, told DeSmog Canada.

Tollefson said the Canadian Environmental Assessment Agency’s assessment of the LNG project did not properly consider the impacts of the facility on fish and fish habitat.

Flora Banks provides a unique resting ground for millions of juvenile salmon transiting from the Skeena River, one of the largest salmon rivers in North America, to the Pacific Ocean.

In its project application Petronas proposed to compensate for destroyed salmon habitat by recreating similar habitat in another location.

Tollefson said such there is no certainty this offset plan will work.

“Where offsets are being relied upon in that kind of setting, there has to be a high level of confidence that they can replace what they are destroying. We say the evidence simply doesn’t meet that requirement.”

Tollefson said the agency designed conditions for Petronas should the offsets fail to adequately compensate for destroyed fish habitat.

“SkeenaWild says that is going be too late. Once we realize they didn’t work, it may be too late. There may be irreversible harm.”

“These stocks, their fate hangs in the balance.”

The project was approved subject to 190 conditions last month by cabinet. Catherine McKenna, minister of environment and climate change, told Postmedia the federal government stands "behind the science in this decision.” 

“If legal action is taken we’ll certainly consider what next steps need to be taken," she said.

Gitwilgyoots Chief Yahann, also known as Donnie Wesley, said Ottawa’s approval of the LNG plant gave him no alternative to legal action.

“Once again, we are forced to ask courts to do what our politicians seem unable to do — to honour Canada’s obligations to its Indigenous communities, and to protect our environment from catastrophic harm,” he said.

The Pacific Northwest LNG project approval disappointed many environmental and Indigenous rights advocates who hoped Prime Minister Justin Trudeau’s promise to restore nation-to-nation relations with Canada’s Indigenous peoples as well as evidence-based decision making would prevent a industrial project of this nature from going forward.

“Despite repeated requests, the federal government has failed to properly consult with our people,” Chief Malii, Chief Negotiator for the Gitanyow said. “Justin Trudeau promised a new relationship with Indigenous communities. Instead, he added insult to injury by ignoring us, and giving the green light to a project that will destroy our way of life,” Malii, also known as Glen Williams, said.

Chief Yahann pointed to a recent federal court decision that found the federal government failed to adequately consult with First Nations in regards to the Enbridge Northern Gateway pipeline project.

“As with Enbridge, and despite repeated requests that they consult with us, Petronas and the federal government failed in their duty to listen to the ancestral owners of Lelu Island,” Yahaan said. “We have never been opposed to development. But we have always opposed industrial development on top of the most important salmon habitat we have on our coast.”

Federal Government Hit With Multiple Legal Challenges Against Pacific Northwest LNG Project https://t.co/53FS4uBq1D #PNWLNG #cdnpoli #bcpoli

— DeSmog Canada (@DeSmogCanada) October 27, 2016

In addition to causing irreparable harm to unique salmon habitat, the Canadian Environmental Assessment Agency acknowledged the LNG terminal will be one of Canada’s largest sources of greenhouse gas emissions.

“It will be one of the very largest single point source emitters of greenhouse gas emissions in the country if it goes ahead for the forseeable future, potentially for as long as 30 years, which is the life of the project,” Tollefson said.

The Canadian Environmental Assessment Agency did not conduct a cumulative assessment of those emissions in light of Canada’s commitments under the Paris Agreement.

That larger, cumulative picture was never presented to cabinet, Tollefson said.

“We say that cabinet couldn’t therefore properly conclude that this project was justified under the circumstances,” Tollefson said.

“The outcome of this case will speak volumes about how our environmental laws respond to scientific uncertainty and the spectre of irreversible harm — and, more directly, how much our laws value one of the world’s most magnificent and abundant remaining salmon watersheds, and the livelihoods of the people who depend on it. “ 

Image: Federal ministers and Premier Christy Clark annouce the approval of the Pacific Northwest LNG terminal in September. Photo: B.C. Government via Flickr (CC BY-NC-ND 2.0)

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Allowing wealthy corporations or powerful government agencies to launch baseless court cases against citizens who speak out against them is putting a chill on free expression in B.C. and there is a growing need for legislation against SLAPP suits, says the B.C. Civil Liberties Association.

It is time to fight back against Strategic Lawsuits Against Public Participation (SLAPP), which aim to intimidate and silence critics by landing them with the often-unmanageable cost of defending themselves against an unwarranted lawsuit, said Micheal Vonn, BCCLA policy director, who believes SLAPP suits are undermining B.C.’s democratic health.

BCCLA is aiming to put pressure on the provincial government to bring in anti-SLAPP legislation, similar to changes introduced last year in Ontario, to help those threatened with legal action to defend themselves against those with powerful financial interests and deep pockets.

“We need a concerted movement for people to make their voices heard. We need to explain what SLAPP is, what it does, what devastation it can cause and how it skews and distorts the political process,” Vonn said.

“There is the ability to bring a suit that has zero merit and it could be weeks in court before it comes to the crux of the argument, and by that time, you may have spent your whole life savings,” said Vonn, emphasizing that corporations are careful to frame lawsuits in such a way that basic protections against “frivolous or vexatious” lawsuits do not click in until someone has already mortgaged their house or gone deep into debt.

“It is too late even if you win, because the process is the punishment,” she said.

Other jurisdictions, ranging from Quebec to Texas, have anti-SLAPP legislation and, in 2001, in the dying days of the NDP government, B.C. New Democrats briefly enacted anti-SLAPP legislation that was seen as ground-breaking.

But it was repealed five months later by the newly-elected BC Liberal government who argued it would lead to a “protest culture.”

Laws Needed to Protect Citizens from Industry & Government SLAPP Suits, Says @bccla https://t.co/4VS24Uc8MU #bcpoli #SiteC #KinderMorgan

— DeSmog Canada (@DeSmogCanada) October 7, 2016

Last year, the NDP again unsuccessfully tried to reintroduce anti-SLAPP legislation and the issue remains on the NDP to-do-list as the province heads into a spring election.

“People must be able to have their voices heard without the threat of expensive legal action,” said New Democrat justice spokesman Leonard Krog, when he introduced the motion.

“The rights of free speech and peaceful assembly are absolutely fundamental to any democratic society.”

A statement from the Justice Ministry, in answer to questions from DeSmog Canada, said the province has existing mechanisms for dealing with improper lawsuits or other abuses of legal process.

“These include court rules allowing for the early dismissal of frivolous claims, summary judgments, security for costs and awards of costs where a lawsuit is found to be without merit,” said the emailed statement.

“These mechanisms work to protect the public from abuses of legal process and ensure British Columbians can participate in public discussion without fear of retribution.”

Vonn disagrees.

“There has been a growing aggressiveness around SLAPPs. It has certainly affected environmental groups — but not just environmental groups — who have found themselves deeply hampered in public participation by having to deal with these suits,” Vonn said.

Recent cases that raised questions include:

• A $6.6-million lawsuit launched by Kinder Morgan against five members of the group Burnaby Residents Opposing Kinder Morgan Expansion — the suit was later dropped with the company picking up court costs;
• Taseko Mines was accused of filing a SLAPP suit against opponents of its proposed tailing plan at the New Prosperity mine;
• BC Hydro is being accused of using SLAPP tactics in civil suits against six protest campers at the Site C dam site — something that BC Hydro denies, saying it supports protests that do not disrupt construction;
• Numerous legal letters were delivered to residents of Shawnigan Lake who oppose a contaminated landfill site operated by South Island Resource Management Ltd.

“These are people like your neighbour, who are speaking their minds about something that affects them deeply,” Vonn said.

BCCLA and others working towards anti-SLAPP legislation envisage rules that would ensure early access to the court system to weed out potential SLAPP suits.

“The ultimate goal here is to basically level the playing field to make sure parties who are the targets of these sorts of suits have access to the courts early and they can present to the court to say why they think it’s a SLAPP suit and what remedy they are seeking,” said Chris Tollefson, Hakai Chair in Environmental Law and Sustainability at the University of Victoria and co-founder of the Pacific Centre for Environmental Law and Litigation.

With a fast-track procedure it would then be up to the court to give the case special scrutiny and decide whether there should be an early dismissal, he said.

“I think there’s a very significant issue of democracy in play here if we think of democracy as being a system where people are not only protected, but encouraged to express themselves even in ways that might be controversial, in ways that challenge government or private companies. If that is something that we are serious about, we need to take steps to protect that wherever there’s a threat,” Tollefson said.

Enacting legislation should be an issue that crosses party lines, he said.

“This should not be party political. There should be no question really that this is something that one needs to do regardless of what party you support,” Tollefson said.

Image: B.C. legislature. Photo: Jason Baker via Flickr CC by 2.0.

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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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Nothing remains at the Rocky Mountain Fort site where Peace Valley farmers and First Nations camped for 60 days in the hopes of stopping clear-cut logging for the Site C dam. The camp was dismantled in March and the old-growth spruce and cottonwood forest was logged, as BC Hydro prepares to convert the Class 1 heritage site into a Site C waste rock dump.

But one notable thing still stands: the civil lawsuit BC Hydro filed in January against five campers and a supporter, a suit the B.C. Civil Liberties Association describes as a matter “of grave concern.”

The 13-page lawsuit accuses six Peace Valley residents of conspiracy, intimidation, trespass, creating a public and a private nuisance, and “intentional interference with economic relations by unlawful means.”

Most worrisome for the people named is that the suit seeks financial damages for BC Hydro that could result in the loss of their homes, life savings or other assets. Five of the six already stand to lose their houses, farms, land or traditional territory to the nearly $9 billion Peace River dam.

Josh Paterson, executive director of the B.C. Civil Liberties Association (BCCLA), says the association is extremely concerned about the civil suit because it could put a chill on freedom of expression. It might cause others “to think twice before they talk about their political opinion.”

SLAPP style #SiteC suit by @BCHydro might stop others from expressing political opinion https://t.co/bO9dZGmsPc @SavePeaceValley #bcpoli

— DeSmog Canada (@DeSmogCanada) May 25, 2016

BCCLA’s unease is heightened because BC Hydro is a Crown corporation, says Paterson. “For a government agency to come down in that way is of grave concern. What it does is send a message, perhaps deliberately, that ‘you’d better be careful if you plan to oppose these kinds of developments’…BC Hydro as a public institution should be very cautious about making these kinds of claims for damages it would impose.”

The civil suit, according to University of Victoria law professor Chris Tollefson, bears some of the hallmarks of a SLAPP suit, a strategic lawsuit against public participation.

SLAPP suits can stifle freedom of speech and quash opposition to controversial projects like the Site C dam, which Premier Christy Clark has vowed to push “past the point of no return,” despite four on-going court cases against the dam by Treaty 8 First Nations and Peace Valley landowners.

A fifth on-going legal action, launched by the Blueberry River First Nations, claims treaty rights have been violated by the cumulative impacts of Site C and other industrial development in the Peace.

“If the end result is that they face financial or personal ruin, a key implication is that others won’t want to follow in their footsteps and take that risk,” says Tollefson. “Then free speech becomes a luxury that only those who have nothing, or those who are incredibly rich, can afford.”

Tollefson, an expert on SLAPP suits, says it is the first time he has ever heard of a Crown corporation seeking damages from an individual in B.C. “or anywhere else for that matter,” for lawfully and peacefully exercising their right to protest on a matter of public interest.

Those named in the suit include farmers Ken and Arlene Boon, Helen Knott, a social worker from the Prophet River First Nation, and Yvonne Tupper, a community health worker from the Saulteau First Nations.

Esther Pedersen, a Peace Valley farmer whose land was used to helicopter two survival shacks across the river for the campers and to collect food donated by community members, was also named. The suit includes “Jane Doe” and “John Doe,” leaving open the possibility for other Site C opponents to be singled out as well.

After BC Hydro filed the civil suit, it launched an injunction application to remove campers from the fur trade fort site on the Peace River’s south bank, near the confluence of the Moberly River. That area was deemed to be so ecologically and historically important that the B.C. government had made four designations to protect its heritage resources, wildlife and old-growth forests. The government even went so far as to set aside the land to become part of a future B.C. protected area.

But BC Hydro had obtained the necessary government permits to log the forest and convert the fort site area into a 216-hectare rock dump for potentially acid-generating waste rock from Site C construction. After the camp was ruled illegal by the courts, the people named in the suit said they were law-abiding citizens and promptly dismantled their encampment.

Ken Boon says he and his wife Arlene made a personal request to BC Hydro CEO Jessica McDonald to drop the civil suit when McDonald recently visited their farm.

Peace River Valley farmer Ken Boon at the Rocky Mountain site encampment. Photo: Sarah Cox.

Accompanied by a driver and an aide, McDonald spent two hours with the Boons. “We basically agreed to disagree,” says Boon of the visit, which he characterizes as cordial and personable. “We showed her around the farm.”

The Boons will lose productive fields to flooding and when riverbanks slough into the dam reservoir, a deep body of water that will stretch for 107 kilometres along the Peace River and its tributaries. The Boon’s home and farm buildings are slated to be destroyed, to make way for the $530 million re-location of Highway 97 away from the flood zone.

Boon says McDonald was willing to drop the suit, but only if the Boons were prepared “to sign a document basically stating we would not impede further work or stand in the way of the project.”

The Boons declined to sign. They believe it is their constitutional right to oppose Site C, which will flood at least 6,500 hectares of prime farmland and, in the words of a government-appointed panel that reviewed the project, have “significant adverse effects” on the environment and on lands and resources used by First Nations.

In late April, BC Hydro launched a second civil suit, this time against hunger striker Kristen Henry and three others camped outside the Crown corporation’s head office in Vancouver to protest the Site C dam project.

The Vancouver campers packed up 10 days later, saying they did not have the money or the inclination to fight BC Hydro in court. BC Hydro claimed “hundreds of thousands” of dollars from them in damages, the four campers stated in a press release.

BC Hydro said the camp had forced it to take expensive measures to step up security, including spending $30,000 for new door handles to which people cannot chain themselves, up to $60,000 a month to hire the company Xpera Risk Mitigation and Investigation to monitor the campers, and up to $35,000 a month to boost general security measures.

Even though that camp, too, is gone, the civil law suit stands, Dave Conway, BC Hydro’s Site C community relations manager, confirmed in an email. Conway said in a separate email that the crown corporation cannot comment on the civil suit against the six Rocky Mountain fort campers due to the fact that it is an “on-going court action.”

The majority of U.S. states, along with Ontario and Quebec, have anti-SLAPP suit legislation. In 2001, the NDP government in B.C. passed similar legislation, called the Protection of Public Participation Act. Six months later, that legislation was repealed by the newly-elected B.C. Liberal government.

Such legislation, says Tollefson, aims to expedite justice and provide the courts with tools to dismiss SLAPP suits early on “so a very deep-pocketed corporation doesn’t get to drag it out and benefit from simply being better endowed.”

Image: Ken Boon on his farmland in the Peace Valley. Photo: Emma Gilchrist.

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