Manitoba’s Clean Environment Commission is urging caution — and far more research — before the province licenses a controversial proposal to extract millions of tonnes of silica sand from a freshwater aquifer that serves thousands of residents.

Years of tension and upheaval have surrounded Alberta-based Sio Silica’s plan to extract the grainy mineral — deemed increasingly crucial to green technologies like solar panels — from deep beneath the agricultural fields of the Rural Municipality of Springfield.

A report, produced by the province’s arms-length review body, seems to affirm outcry from hundreds of residents who fear the project hasn’t been fully thought through and could, in a worst-case scenario, permanently damage the region’s primary water source.

Such high stakes and high tensions, the commission decided, should warrant a high standard of review and confidence — something it suggests Manitoba has so far failed to get from Sio Silica.

Thousands of residents — like the Mustard family — draw their water from the aquifers where Sio Silica plans to mine. They worry the industrial activity could contaminate their water source, dry up wells and reduce overall property values in the region. Photo: Mikaela Mackenzie / Winnipeg Free Press

Because the company plans to employ a new, as-yet unproven method of sand extraction, the risks and uncertainties are more pronounced, the commission says.

Not only does the report take aim at what it perceives as a lack of information from the company, it also points the finger at Manitoba’s licensing process, suggesting the province should be requiring more of companies looking to develop its natural resources — especially for a project rife with unknowns.

While the commission doesn’t go so far as to advise against the licence, to the dismay of some project critics, it does provide eight recommendations to achieve more clarity, oversight and risk assessment before a licence is issued.

Here’s everything you need to know about Sio Silica’s path to production.

What’s the deal with Sio Silica?

Tensions have flared for nearly six years between Springfield residents and the former oil executives behind junior miner Sio Silica as the company ramps up efforts to establish a mining and processing operation just outside of Winnipeg.

Sio Silica claims they’ve found a source of high-purity silica sand (fine grains of quartz sand used in manufacturing semiconductors, solar panels, lithium-ion batteries and other green technologies) buried 60 metres deep in an aquifer that serves communities in Springfield and surrounding municipalities.

The plan calls for drilling hundreds of wells a year in clusters, injecting air and sucking out a mixture of sand and water. This “airlift” method, the company says, is used commonly to drill water wells, but it’s never been used in sand mining. It’s this novelty that’s earned the company enough political attention and pushback to spark clean environment commission hearings.

Sio Silica CEO Feisal Somji, centre, has pitched the sand mine as an environmentally sensitive project that will generate economic growth for the Springfield region through green technology applications. Critics have accused the company of greenwashing their proposal. Photo: John Woods / Winnipeg Free Press

The extracted sand mix will be piped across the countryside to a processing facility in Vivian, Man., to be washed, dried and loaded onto a new rail loop destined for local and international markets. The excess water will be treated with ultraviolet light and piped back into the aquifer. The company plans to cap and close each cluster of wells before moving on to the next.

Springfield residents adamantly opposed the project from the outset. The sandbar is one layer of the region’s freshwater aquifer and the company plans to leave hundreds — even thousands — of large cavities in this layer as it proceeds. It’s not clear how this will affect the region’s all-important water source.

Residents have echoed the refrain that “water is life” and no risk that could damage freshwater is worth taking.

Hundreds of residents from Springfield and other impacted towns attended Clean Environment Commission hearings or supplied written submissions urging the commission to recommend against licensing the mine. Photo: Jordan Ross / The Carillon

Equally concerning to residents, Sio Silica has claimed it plans to sell sand to the green tech industry, but a note buried in its proposal suggests up to 40 per cent of the sand could be sold to the oil and gas industry for use in hydraulic fracturing (better known as fracking), contradicting the company’s reported goal of being “the world’s most environmentally friendly silica mine.”

The commission spent three weeks earlier this year hearing from participants, including a slate of technical experts, a consortium of municipal leaders, the company and a group of citizens organized under the banner Our Line in the Sand Manitoba, before delivering its final report.

What are the clean environment commission’s recommendations for Sio Silica?

The commission’s report has been described as “devastating” for Sio Silica’s progress, at least by Our Line in the Sand’s lawyer Byron Williams, speaking to a Winnipeg radio station.

The bulk of recommendations ask Sio Silica to generate more research to back their claim the project will have minimal impact on the region’s land and water.

“Members of the panel are unable to state with confidence that all potential environmental effects of this project have been fully considered and that adequate detailed plans have been prepared for preventing or mitigating these effects,” the commission states.

Manitoba Clean Environment Commission chair Jay Doering helmed the three-week hearings that began in late February. Photo: John Woods / Winnipeg Free Press

The commission criticized Sio Silica for presenting too few test results and leaning too heavily on assumptions. For example, the company assumed the layers of limestone, shale and sand would behave roughly the same across the project area, so they conducted just a couple tests to show how the rock and sand would be impacted by drilling and extraction.

In the absence of better data, “the risk of mine failure is difficult to determine,” the commission wrote.

The commission believes Manitoba should not license the project until Sio Silica has better studied the area’s geology, completed larger scale testing and long-term monitoring of those tests, proven the efficacy and safety of its water treatment strategy and developed detailed management and emergency response plans — along with a detailed risk assessment on the probability, consequences and response plan for worst-case scenarios.

What does the commission recommend the Government of Manitoba do about the silica sand mine proposal?

The commission has long pushed Manitoba’s environmental approvals branch to request more comprehensive information from applicants before making licensing decisions — particularly when it comes to cumulative effects assessments, which help clarify the scope of environmental and human health impacts. The current guidelines are “limited,” the commission wrote, and do not reflect best practices for environmental assessments.

Sio Silica has more than 400 mineral claims totalling over 1,000 square kilometres in central and southern Manitoba — more than twice the area of Winnipeg. The company’s environmental act proposal assesses the impact of drilling on just 8.3 square kilometres, less than one per cent of the project’s potential lifetime area. Map: Julia-Simone Rutgers / The Narwhal & Winnipeg Free Press

“Projects with a higher potential for negative impacts and significant consequences require more specific attention and rigorous review,” the commission adds. “The current project under review would have benefited from greater involvement of the regulator early on.”

Before licensing Sio Silica’s proposal, the commission recommends Manitoba appoint a committee of municipal and provincial representatives to monitor project development with shared scientific findings, defined reporting requirements and regular public reports. It also recommends Manitoba take a “step-wise” approach, taking new research, testing and engineering expertise into account before moving forward.

So how involved has the regulator been, exactly?

Manitoba’s environmental approvals branch distributed Sio Silica’s proposal to technical advisors from other government departments to gather comments, questions and recommendations. Several branches, including groundwater management, environmental enforcement, infrastructure, wildlife and public health, submitted detailed responses that asked the company for clarifications and outlined the permits and extra licences it will need to move ahead.

The mines branch, however, was conspicuously silent — and that has left both Sio Silica and the province in a tricky position.

Expert witnesses spent several days debating the potential impacts of Sio Silica’s mine leaving thousands of large cavities in sandstone, with many concerned the pockets would cause underground rock layers to collapse causing damage to water quality. Photo: John Woods / Winnipeg Free Press

Sio Silica will eventually need a licence from the branch to start drilling, but experts who testified during hearings called attention to the fact Manitoba’s mining and well regulations prohibit the exact kind of drilling the company has proposed.

To get to the sandstone aquifer, the company will need to drill through the overlying limestone aquifer and the fragile shale barrier that separates them. Parts of the shale and limestone are expected to crumble, causing water to mix between the aquifers. That’s generated significant concern from experts who believe collapsed rock and dissolved oxygen can cause heavy metals to leach into the water, while blending aquifers can introduce poor-quality water to a clean freshwater source.

Their concerns are backed by Manitoba laws that specifically ban mixing groundwater from the Winnipeg Formation (the sandstone aquifer) with any overlying aquifer.

Sio Silica’s legal counsel, Sander Duncanson, often argued the extra information experts requested — like cumulative effects assessments and detailed mitigation plans — was not required under Manitoba’s guidelines for environment act proposals. The commission has stated Manitoba should encourage companies to go above and beyond those guidelines. Photo: John Woods / Winnipeg Free Press

Sio Silica has argued those rules don’t apply because both aquifers have similar quality freshwater and several drinking water wells in the region already connect the two aquifers. Experts pointed out the company plans to introduce thousands of new aquifer connections, magnitudes larger than the existing wells. The province has yet to weigh in either way.

Given the “understandably” passionate water quality concerns from residents and the vast uncertainty around Sio Silica’s mining technique, the commission’s first recommendation calls for the province to get a legal opinion and issue a ruling on whether this aquifer-mixing breaches its own rules.

What do Sio Silica and the government have to say about all this?

Manitoba Environment Minister Kevin Klein received the report last week and promptly released it to the public in light of “significant community and public interest” in the project, but it’s not clear what the government makes of the report’s recommendations.

Speaking to media, Klein — a rookie MLA who was handed the environment file in late January — said his department takes the report “very seriously” and will “adhere to a thorough due diligence process — as we do with every environmental licence application.”

Manitoba has not indicated a timeline for reviewing the commission’s recommendations, or committed to enacting them, choosing instead to strike a technical advisory committee to review the report. Photo: Mike Thiessen / Winnipeg Free Press

The province has stated next steps will include a detailed technical evaluation of the report’s recommendations and “engagement in meaningful discussions with Indigenous communities.” (The province and company have been criticized by Indigenous communities in the project area for failing to consult with them.)

Sio Silica’s lawyers put out a short statement following the report’s release saying the company is “pleased to move forward with our project as it progresses to the next steps” and committing to “continual research, data analysis, operational improvements, environmental monitoring and partnerships with Manitoba companies.”

Does Manitoba have to follow the commission’s recommendations for the silica sand mine?

In short: no. The recommendations aren’t binding, and the commission has no power over the eventual licensing decision.

Are there any hints as to what the province is going to decide?

Manitoba’s environmental approvals branch has fielded nearly 300 project proposals since the Progressive Conservatives took power in 2016, according to departmental reports. Not one has been refused.

Even as Manitoba promises to strike another technical advisory committee to review the commission’s report, critics have expressed a “crisis of trust” with this government’s handling of Sio Silica’s proposal. Not only does Sio Silica employ several people connected to Manitoba’s Conservative party (including David Filmon, son of former premier Gary Filmon) but behind the scenes, the province’s actions appear to favour the company.

Our Line in the Sand president Tangi Bell has been one of Sio Silica’s most vocal critics. For years she has tracked the company’s exploration activities across Springfield, documenting and reporting alleged regulation breaches — but she says the province never sanctioned the company. Photo: Mikaela Mackenzie / Winnipeg Free Press

From the outset, Manitoba told Sio Silica to split its licence application — one for the facility that will process and export sand and another for the extraction process. The facility was licensed in December 2021.

This “project splitting” has been widely criticized by opponents who believe it allows the company to minimize the environmental impacts. The commission says it seems “obvious” both elements are “very closely interconnected” and recommended a cumulative effects assessment to understand the environmental impacts of both processing and extraction over the mine’s 24-year lifespan.

Manitoba also chose not to make participant funding available, though it’s typically accessible to public organizations to help secure experts and lawyers for commission hearings. That left citizen groups like Our Line in the Sand to pay their own way. Participants told the commission the lack of funds meant they weren’t able to secure the expertise they had intended.

And just last week a conflict erupted in Springfield municipal council stemming from a provincially appointed board’s decision to override local leadership and strongarm the municipality into changing its zoning laws to accommodate Sio Silica’s processing facility.

Residents in Springfield were locked out of municipal council proceedings as councillors voted on a controversial bylaw amendment and development plan to allow Sio Silica to start building its processing facility. The amendments had been ordered by Manitoba’s municipal board. Photo: Jura McIlraith / The Carillon

All of this comes atop Manitoba’s commitment to strengthen its mineral sector and reduce “red tape” in the name of economic development — as per recommendations from the mining industry.

Sio Silica has pitched itself as an economic launching pad for the province, touting its partnership with a major solar panel manufacturer to suggest the project will help kickstart a local advanced manufacturing industry. (The mine itself is expected to generate just a few dozen jobs.) Manitoba has already licensed an open-pit silica sand mine and solar glass plant, proposed by Alberta-based Canadian Premium Sand, on Hollow Water First Nation territory near Black Island, Man. It would appear the province is interested in developing its silica sand resource.

So how do we know Sio Silica will be held accountable to the commission’s asks?

Ultimately, we don’t.

Project opponents continue to advocate the province scrap Sio Silica entirely, but should a licence be granted it’s unclear how Manitoba intends to mitigate and monitor project impacts.

The commission suggested a monitoring committee with members from outside the provincial government (though they would be provincially appointed), but did not go so far as to recommend specific monitoring timelines or activities, leaving those decisions to the province.

Several conditions of Sio Silica’s processing facility licence remain outstanding, including a closure and remediation plan the company was expected to produce within six months of the licence being issued. The company received a nearly 12-month extension and now has until the end of this month to produce that plan. Photo: John Woods / Winnipeg Free Press

Manitoba’s record on environmental monitoring has been in decline in recent years. When the Conservatives first took office in 2016, the province was carrying out upwards of 150 monitoring activities annually. Last year they completed just 50. While such sharp decline could be in part attributed to the COVID-19 pandemic, monitoring had been on a slow decline since the Tories took office. The commission expressed serious concerns about the uncertainties of this “essentially experimental” project, amplified by the fact it involves long-term development in aquifers that serve tens of thousands of homes, farms and businesses in one of Manitoba’s fastest-growing — and drought-sensitive — regions.

The stakes are high, and while the commission states it sees merit in the project, that’s only if “the risks posed to the quality of water … and the management of those risks can be adequately addressed.”

What’s next for Sio Silica’s sand mine?

The government said the report has been handed off to Manitoba’s environmental approvals branch, which will be in charge of issuing an eventual licensing decision, but there’s no clarity on the timeline. Klein could also choose to make the decision himself, provided he gives advance notice.

With a provincial election looming this fall, the final decision could be complicated by a possible change in governing parties. Manitoba’s New Democratic Party has urged the government to hold off on a final decision until after the election, but the opposition party has not taken a firm stance on Sio Silica’s proposal.

Klein told media timing wasn’t a concern: “The process will take as long as the process needs to take.”

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SAINT JOHN, N.B. — When Gordon Dalzell learned the Irving Oil refinery’s air quality permit was up for review, he got to work.

In the quiet of winter, Dalzell, a Saint John-based clean air activist, hunkered down with his research and a blue pen, detailing his findings in sweeping cursive, hoping his words would impact one of the country’s biggest polluters.

In Champlain Heights, where Dalzell has lived since 1977, there are about 100 homes, an elementary school and a community college campus. Thickets of trees block the Irving Oil refinery, Canada’s largest, from view, but look at a satellite image and next door you see more than two dozen tanks dotting the landscape like white buttons.

In the past decade, multiple published reports have detailed excess discharges of fine particulate matter from the refinery’s smokestacks leaving a white dusty coating on cars and homes nearby. In 2018, the refinery pumped a black, grainy mystery product from the smokestacks, and although the residents of Champlain Heights received apology letters from Irving, neither the company nor the New Brunswick government revealed what the substance was. Irving looms large in the province, a family-owned conglomerate with holdings in everything from oil and lumber, to retail and newspapers.

On his street, Dalzell counts multiple Irving employees as neighbours — none of whom submitted comments to the refinery’s air quality review. “Many people who would perhaps like to participate are hesitant to do so because they might fear reprisals or retribution,” he says. “I think sometimes they’re even afraid to talk to me for fear that they’re associated with somebody that criticizes their employer.”

Dalzell walks through a stand of trees that block the view of the Irving Oil refinery from his neighbourhood of Champlain Heights. Photo: Desmond Simon / The Narwhal

Dalzell isn’t one to stay quiet. He was once kicked off an Irving Oil environmental committee for sharing information with Reuters news service. And for the last 25 years, Dalzell has participated as a citizen activist in various provincial and federal forums, so providing input on establishing the refinery’s regulations for the next five years, wasn’t new to him. Though the process is anonymous, Dalzell spoke to local media about his submission after realizing he was the only member of the public to provide one. 

His 200-page, handwritten tome raised 33 issues ranging from benzene levels in pollution coming from the plant to emission monitoring.

Due in part to Dalzell’s prodding, the limits of both nitrogen oxide and sulphur dioxide emission levels for the refinery were reduced to 4,500 tonnes annually — a decline of 18 and 13 per cent respectively. He also convinced the province to lower the acceptable levels of particulate matter in Irving’s refinery emissions. But he wonders if more could have been accomplished if his wasn’t a lone voice.

It’s a question relevant not only in New Brunswick, but in the broader context of participation in environmental policy development across the country.

‘The onus for fairness lies with government’

Canadians have had the opportunity to participate in environmental processes for more than 25 years federally, via the Canadian Environmental Assessment Act. Regulation for specific issues, like air quality, falls to provinces who have their own mechanisms; Dalzell’s activism helped make this a reality in New Brunswick after demanding public participation in the province’s Clean Air Act in 1997.

Governments have done a great deal of work to create channels for the public to make their voices heard by decision-makers. But just because opportunities exist doesn’t mean people are ready or willing to speak up. And public participation certainly isn’t a silver bullet for better environmental policies.

In a 1997 paper environmental lawyer Andrew Green suggested public participation could lead to less than optimal results: risking overregulation when public demand for control is high or underregulation when public interest is low. The underlying issue, he said, is the environmental policies themselves. Public participation can’t be seen as a way to counterbalance old regulations that favour the desires of industry.

Across Canada, some provincial air quality standards are long out of date, and public participation results in stricter guidelines for permits and approvals than what regulations dictate. New Brunswick’s air quality regulation, for instance, has not been comprehensively reviewed since its 1997 inception. In Ontario, it took almost 45 years and the prodding of environmental law organization Ecojustice for the province to lower its sulphur dioxide standards.

Lois Corbett of the Conservation Council of New Brunswick calls the province’s mechanisms to participate one of the country’s worst. “The onus for fairness, openness and transparency lies with the Department of Environment and with government in general,” she says. 

Due in part to Dalzell’s activism, nitrogen oxide and sulphur dioxide pollution from the Irving Oil refinery were significantly reduced. Photo: Desmond Simon / The Narwhal

The Narwhal requested information on trends in participation in New Brunswick’s air quality reviews from the province, but no response was received. Similarly the Minister of Environment and Local Government, Jeff Carr, did not respond to a request for comment.

For the province to do better, Corbett says, it would need to take a more hands-on role in connecting citizens with the process. But in New Brunswick where an estimated one in 12 people work for a single employer — Irving — she feels there’s a cynicism overshadowing the process. “They don’t believe that the government is making decisions on their behalf and it didn’t matter who weighed in, with what evidence. There wouldn’t be a change.”

In other areas most impacted by polluting sites across the country, similarly divided loyalties could be present.

In recent cases where public participation was requested on projects with potential environmental impacts, participation varied widely by project and sector. In Sarnia, Ont., a city, like Saint John, impacted by air pollution due to local Imperial Oil and Shell refineries, a recent air compliance approval had no public participation. Yet recent changes to regulations around forestry in Ontario saw 25 submissions and 1,200 emails. 

Shaun Fluker, associate professor at the University of Calgary’s law faculty, says big numbers can be misleading. They may indicate participants using form letters or email templates, rather than engaging in a more substantive way. But the question remains why participation happens in a big way in some cases, and is so limited in others.

Sarnia, Ontario, known as Chemical Valley, has some of the worst air quality in the province due to a high concentration of industrial facilities. Photo: Garth Lenz

Clinton Westman, associate professor in archaeology and anthropology at the University of Saskatchewan, who counts among his research interests environmental policy participation, points to the Trans Mountain pipeline as an example of ranges in public participation.

When it was first built in the 1950s, there was no formal opportunity for public participation in approving the pipeline between Edmonton and Burnaby, B.C. But when Kinder Morgan proposed building another pipeline, largely along the same route, public interest was high. Westman notes many of the channels for participation, including information sessions and online engagement, have been created due to hard work from activists.

“But they seem to also become prone to being co-opted or prone to kind of not fulfilling all the potential for public participation that people thought that they had.”

Hundreds of Canadians were denied the opportunity to present concerns over Trans Mountain after federal legislation led the National Energy Board to include only participants who were “directly affected” or with expertise or relevant information on a given issue. This came after Enbridge’s Northern Gateway pipeline inspired record participation for a National Energy Board review, causing the project’s supporters to bemoan the length of the approval process. In an open letter, then-natural resources minister Joe Oliver complained about the volume of participants, alleging environmental groups and “radicals” had “hijacked” the regulatory system. Despite more than 4,000 10-minute oral statements opposing Northern Gateway, the project was still approved, which leads to the question: how do regulators actually weigh the public input they receive on any given project?

Anna Johnston, a lawyer with West Coast Environmental Law, says it can vary between federal to provincial processes, and that some panels have independent experts who bring their own opinions on the value of public submissions and statements.

It can be difficult to enthuse the public about engaging in government project review processes. “I think that the public is really underserved often by the consultation processes that the governments bring forward,” Kai Nagata, energy and democracy director at Dogwood, told The Narwhal. Photo: acapsj / Flickr

For example, she’s heard different feedback on the effectiveness of letter-writing campaigns which produce thousands of “cookie-cutter” responses.

“On the one hand, it could be a demonstration of strong public interest in a particular issue of the product, and people are taking the time to click a button, while others think that there’s such a small amount of energy required to click that button that doesn’t really demonstrate much interest at all.”

Johnston says she’s also seen processes where it seemed like the assessment authority was deeply moved by people’s submissions.

“And then there are other times where the decision making is such a black box, that the decision makers don’t ever show how public comments have been taken into account, if at all,” she adds. “But it appears from the outside that all of that energy — and often money and resources — have been a waste of time.”

Roadblocks to public engagement

Canada’s environmental participation landscape isn’t full of happy stories like Dalzell’s. Westman mentions material outlining proposed projects or issues up for review can be complicated and dense. Marginalized groups — who often live in disproportionately impacted areas — don’t always get heard, for instance when the reviewer limits the number of Indigenous communities that can claim to be impacted. 

There’s no consensus on how to get more people more involved in public participation processes.

“I think that the public is really underserved often by the consultation processes that the governments bring forward,” says Kai Nagata, energy and democracy director at the B.C.-based citizen action group Dogwood. “And so grassroots groups or ENGOs or municipal governments sometimes can serve a role as an intermediary to basically translate what’s at stake, and encourage people to make their voice heard.”

In Nagata’s view, mobile-friendly online processes, including ditching fax communications for emails and surveys would encourage engagement. “There are areas where the government is decades behind technology and the way people actually use and share information.”

Dogwood has proof this works, having helped thousands of people sign up to present at Enbridge’s Northern Gateway hearings through the creation of an online form which sent a fax to the National Energy Board.

Dalzell thinks people don’t participate for multiple reasons, including a belief someone else will, and a perceived lack of time. He estimates he spent between 60 and 70 hours working on his submission for the Irving air quality permit review. Now retired, he has more hours to focus on these sorts of projects, though Dalzell says he actually did more in the past even while working full-time. 

Dalzell says he has devoted a significant amount of time engaging in the public participation process and that it has been “quite a learning curve.” Photo: Desmond Simon / The Narwhal

Fluker, the University of Calgary professor, says one of the most common challenges is the cost of experts.

“Frankly, there’s not a lot of people that have access to those sorts of experts or have the training to really flesh out some of those weaknesses in a proponent’s case,” he says. Having funds available beforehand or government-provided lawyers could assist individuals and groups with navigating the process. Cost assistance exists in some jurisdictions to pay people back after the fact, but that only works for those able to float the money upfront.

Corbett says more public meetings explaining scientific processes to impacted communities could help increase understanding of what’s at stake, and in turn, citizen engagement.

Dalzell’s education and training is in social work. He’s not a trained scientist, but developed the fluency and comfort he has today with esoteric environmental processes over 30 years working alongside community groups. This includes the Citizens’ Coalition for Clean Air, which gathered 13,000 signatures on a petition while lobbying for New Brunswick’s Clean Air Act.

“So it’s not like people couldn’t do this,” he says. “But for me, it was quite a learning curve, quite frankly.”

Local voices needed on project reviews

There is a wide gulf between acknowledgement of climate change’s impacts, and peoples’ willingness to make efforts to help counteract it. Given the immensity of global climate concerns, it might seem like small potatoes to work on something in your own backyard.

But that’s a sentiment with which Corbett disagrees: “I don’t think that there’s anything about the largest refinery on the East Coast that’s ever small.”

Academics have noted that, despite success in creating pathways, like public participation processes, to get information to decision-makers and experts, these avenues don’t necessarily collect the local knowledge and first-hand experiences of individuals. And Dalzell says there’s a lot of value in individual stories in these processes.

“The citizen is the expert in terms of their own health, their own impact on quality of life.”

One of the catalysts for Dalzell to put pen to paper for Irving’s air quality review was the memory of a neighbour who passed away two decades ago from an asthma attack.

“I think when I look back, it was just one of those driving forces that caused me to respect her wish,” he says. “And the other thing is, I knew a lot of people in the neighbourhood who kind of depended on me over the years to do this advocacy work.”

Considering the refinery’s entry on the National Pollutant Release Inventory — two-and-a-half printed pages of air toxins and chemicals, including benzene, arsenic and lead — Dalzell says “it’s a wonder we all haven’t died of cancer in the neighbourhood here.”

“The citizen is the expert in terms of their own health, their own impact on quality of life.”

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

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

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

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

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

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

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

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

Senate amendments are ‘badly drafted’

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

He recommended that virtually all the amendments be rejected.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Senate amendments downplay climate change considerations

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

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

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

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

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

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

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

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

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

Oil and gas industry lobbied senators intensively

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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When experts, such as engineers and geoscientists, submit reports on a project to B.C.’s Environmental Assessment Office, the generally accepted idea is that their information will reflect environmental standards and identify problems, allowing a project design to be changed or rejected if necessary.

But, that is not what happens in B.C. according to a study by University of British Columbia researchers that looked at 10 recent environmental impact assessments.

Researchers found that experts — usually hired by a company applying to build a mine, pipeline or other project — rarely take heed of generally accepted thresholds to determine if there is a significant environmental or health concern.

The study also found when impacts are likely to exceed established criteria — push past those accepted thresholds — experts find a variety of innovative ways to minimize potential problems.

Experts using ‘scorched earth reasoning’

Gerald Gurinder Singh, UBC senior research fellow in the Institute for the Oceans and Fisheries, said the paper shows biases and unscientific practices used in the environmental assessment process and underlines the need to balance evidence given by industry-paid experts.

“If an environmental impact, such as the release of pollutants which have human health consequences, is predicted to surpass a threshold of concern for human health, we would expect that that impact would be considered important or significant,” said Singh, co-author of the B.C. study and a second paper looking at scientific shortcomings in international environmental assessments.

The study found that, instead of flagging problems, the experts — who have an interest in ensuring the project goes through without expensive changes or mitigation measures — minimize the significance of impacts, even when they are likely to exceed set environmental thresholds, he said.

Common strategies include referring to less strict criteria used in other jurisdictions or claiming that modelling uncertainties could mean problems are unlikely, Singh told The Narwhal.

Another strategy, he said, is expanding the scale.

“For example, an impact on a local community, such as a local population of fish used by a community, might seem less important at a larger regional scale, such as the species as a whole in the province,” he said.

That larger focus would be used in the analysis even if it was not meaningful for stakeholders, Singh said.

One argument Singh identified goes along the lines of: the existing situation is so bad, with thresholds already being exceeded, that it does not matter that the project would make it worse.

“This kind of scorched earth reasoning doesn’t take into account that things can get worse still and we might want to make things better,” he said.

Opinions of the proponent-paid professionals are usually accepted by regulators, illustrating the underlying conflict of interest in using experts hired by industry, according to Singh.

The entire point of doing a scientific evaluation is to have an unbiased and transparent consideration of the potential impacts of projects on key areas of the environment and to have decisions helped by robust analysis, he said.

“If we can’t ensure that (assessments) are conducted according to good standards of evidence, guided by best practices in relevant scientific and other fields, then what’s the point of doing the assessment in the first place?” he asked.

Mitigation actions not taken

Making matters worse, an international study found a lack of enforcement of mitigation efforts, Singh said.

“We found that roughly one in 10 mitigation actions across the seven countries we sampled are worded in such a way that they do not need to do anything. Among our group we call these weasel words,” he said.

That means that the company promises to take action “if feasible” and then claims mitigation was not feasible.

B.C. is bringing in a new Environmental Assessment Act to replace rules written in 2002 by the former BC Liberal government, and critics and researchers are watching to see if government regulations — which will put meat on the bones of the framework legislation — will address basic problems they have identified.

B.C. environmental assessment overhaul marred by deficiencies, scientists say

New rules leave room for bias

Regulations will be introduced over the next few months, with the Act coming into effect next fall.

There is cautious approval of some measures, such as speeding up the process by ensuring potential hurdles are identified early, consideration of climate change and involvement of Indigenous communities throughout the process.

But there is already concern that the new legislation does not go far enough to ensure scientific independence and rigour.

The UBC study, which was published before the legislation was passed, adds fuel to that fire.

A letter to Premier John Horgan, signed by more than 180 university academics and science professionals, says the new legislation fails to fix fundamental flaws.

“We are concerned that the proposed process lacks scientific rigour, with significant consequences for the health and environment of all British Columbians,” says the letter.

“The continued lack of scientific independence, peer review and transparency in the evaluation of a given project’s risk to the environment will serve only to further undermine public confidence.”

A major concern of the scientists is that the new legislation still allows project proponents to collect and present the evidence for environmental assessments — the same problem identified by the UBC study.

“The information required to assess environmental risk would continue to be gathered and analyzed by those with a vested interest in project approval,” says the letter.

“This lack of independence can create a culture susceptible to biased data collection or interpretation and will continue to erode the public’s trust in a process that they expect to be fair and evidence-based.”

Jim Pojar, one of the letter’s signatories and former B.C. government ecologist, said the Pacific Northwest LNG project in the Skeena estuary demonstrates why project assessments should be based on information gathered and analyzed by independent experts — who don’t have a horse in the race.

Juvenile salmon in the Skeena River estuary near Flora Bank. Photo: Tavish Campbell

The controversial LNG project included a proposal for a terminal on Lelu Island, next to Flora Bank, one of the largest eelgrass beds in B.C. A 1973 report identified Flora Bank  has having “high biological significance as a fish (especially juvenile salmon) rearing habitat.”

Yet an engineering firm hired by the project’s proponent, reported to the Canadian Environmental Assessment Agency that there would be little to no environmental impact from building the LNG terminal next to Flora Bank.

That report concluded “salmon do not use Flora Bank eelgrass habitat for nursery habitat or other life dependent processes.”

That report “turned out to be flawed,” Pojar told The Narwhal in a previous interview.

“In one case they didn’t find a particular fish population because it was the wrong time of year,” he said.

The new B.C. legislation allows for peer review, but, like other parts of the bill, does not require it. Critics hope new regulations, which are still to come, add teeth to the Act.

We Spoke to Consultants Forced to Alter Their Work to Benefit Industry on How to Fix Canada’s Broken Environmental Laws

‘There needs to be more oversight’

An Environment Ministry spokesman, in an e-mailed reply to questions, said all information from an assessment will go to a technical advisory committee, probably made up of government and non-government experts, who will provide a third-party scientific review of data and information.

Experts, mediators and consultants can be retained by communities or opponents to provide independent advice to the Environmental Assessment Office, all data and analysis will be published online, including technical material provided by experts, and ministers will be required to provide reasons for their decisions, he said.

Qualifications, including impartiality, may be established by peer reviewers or by the technical advisory committee, said the spokesman.

But, there is also the need to close the funding disparity between the proponents, who are often multi-national resource companies, and opponents, who usually have considerably less funding to hire experts.

One solution would be for industry to pay into a pool, administered by government, which would allow communities or opponents of the project to hire their own consultants, Singh suggested.

“There needs to be more oversight on the quality of the research that is being done. It’s really problematic,” he said.

Environmental consultant Jackie Lerner, a co-author on both papers, said although changing to a central fund would help even the playing field, it would likely raise the ire of industry and such a change would need strong government commitment, she said.

“At the federal level it was one of the major recommendations from the Independent Panel Review and it is one of two recommendations they did not implement,” Lerner said.

“Politicians are responsible for things in the short term and the environment is very long-term payoff,” she said, adding governments often want to avoid appearing too hard on industry.

One major objection from industry is that putting the process into the hands of bureaucrats would extend the time frame, Lerner said.

“Another common argument is that the proponent knows his own project the best and the project has been refined and improved before it gets to government,” she said.

“But, I don’t actually see that happen very often. Industry does not usually like to change major parts of engineering because of environmental considerations” during the environmental assessment process, Lerner added.

A simple fix would be to have government running the show by paying experts to do the analysis, she suggested.

Government does require some proponents to fund First Nations to enable them to hire experts, but the funding remains uneven, with companies often spending about $3-million, compared to about $150,000 for communities, Lerner said.

Like others, Calvin Sandborn, legal director of the University of Victoria’s Environmental Law Centre, acknowledges the new legislation is an improvement, but one of the major flaws is that proponents will still provide the bulk of the evidence and government scientists on the technical advisory committee are unlikely to have the in-depth knowledge of company experts, Sandborn said.

“He who pays the piper calls the tune…I think the lynchpin of this thing is the lack of assurance that the body of evidence is going to be objective,” he said.

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Simon Fraser University scientist Michael Price was in his office on Saturday, putting the finishing touches on an open letter to Premier John Horgan from 180 academic scientists, when his phone rang.

The surprise caller was Kevin Jardine, associate deputy minister for B.C.’s environmental assessment office.

Jardine had got wind of the open letter — which outlines why newly introduced legislation to reform B.C.’s environmental assessment process “lacks scientific rigour, with significant consequences for the health and environment of all British Columbians” — and wanted to walk Price through the legislation.

Despite what Price called a “constructive conversation,” he wasn’t swayed by Jardine’s reassurances that the legislation addresses “three deficiencies” identified by the scientists in their letter: a lack of scientific independence, peer-review and transparency.

“I welcomed a conversation,” Price told The Narwhal. “It was good to hear the government’s side, where they’re coming from…their primary intention is to restore public confidence, to protect the environment.”

At the end of the call Price told Jardine the scientists still intended to release their letter on Monday, which outlines how the proposed legislation “falls short” when it comes to protecting the environment and restoring public confidence in environmental assessments.

“There are many aspects when it comes to scientific rigour that continue to be lacking,” Price explained. “We hope that they’ll go back to the drawing board and tweak a few things that would really help fulfill their stated goals.”

‘A culture susceptible to biased data’

Bill 51, the Environmental Assessment Act, is being studied by a Committee of the Whole House and could be passed as early as this week.

One of the main deficiencies of the legislation, according to the scientists, is that it still allows project proponents to oversee, collect and present the vast majority of evidence for environmental assessments.

“In other words, the information required to assess environmental risk would continue to be gathered and analyzed by those with a vested interest in project approval,” the scientists wrote in their open letter, which was also addressed to five ministers, including Environment Minister George Heyman.

“This lack of independence can create a culture susceptible to biased data collection or interpretation, and will continue to erode the public’s trust in a process that they expect to be fair and evidence-based,” they wrote.

Former B.C. government ecologist Jim Pojar, one of the letter’s signatories, pointed to the Pacific Northwest LNG project in the Skeena estuary as an example of why information used to assess project risk must be gathered and interpreted by independent, qualified professionals who have nothing to gain or lose.

A 1973 report found that Flora Bank, next to the proposed site for a LNG terminal on Lelu Island, has one of the largest eelgrass beds in B.C., describing it “of high biological significance as a fish (especially juvenile salmon) rearing habitat.”

But Stantec, the engineering firm hired by Pacific Northwest LNG, filed a report with the Canadian Environmental Assessment Agency (CEAA) in 2015 claiming there will be little to no environmental impact from building an LNG terminal next to Flora Bank.

That submission, which did not include field data on fish, concluded “salmon do not use Flora Bank eelgrass habitat for nursery habitat or other life dependent processes.”

Pojar said the consultant’s report “turned out to be flawed.”

“In one case they didn’t find a particular fish population because it was the wrong time of year,” he said in an interview.

Even though the NDP government says the data collection process for environmental assessments will be far more rigorous under the new legislation, Price said it is “problematic” for project proponents to remain in charge of data collection.

“Even if there is no bias there’s going to be that perceived sense of bias in the public’s eye that the proponent is working with those who are gathering the information. We really feel strongly that that needs to be totally independent.”

Amendments to Bill 51 still an option

The government could amend the bill to allow baseline data for environmental assessments to be collected by contractors who are paid by project proponents but hired by the government, said Price, who commended the NDP for overhauling the Act, calling it a “good start” and noting that it allows First Nations communities to be involved at the start of assessments.

Heyman said “unfortunately” the scientists, who are mainly from B.C., didn’t approach him or the environmental assessment office to seek clarification before releasing their letter.

“I appreciate their concerns and share many of their concerns and that’s exactly why the issues they raise are in fact addressed in the Act and I’ll be making that clearer during debate on the bill,” Heyman told The Narwhal.

“The environmental assessment office contacted them over the weekend to walk them through how the bill does provide for the independence and transparency that they seek, the release of information and I think they got some of that message. Unfortunately they had distributed the letter already.”

Lack of peer review standards

Pojar, a forest ecologist research scientist and author of B.C. natural history books, said critical thinkers will look at all sides of the issue “and decide for yourself which makes more sense.”

He pointed out that the majority of the scientists who signed the letter “do not have a vested interest, don’t work for the government and most are not employees of environmental consulting companies.”

The scientists also zeroed in on the legislation’s failure to require independent peer review of evidence about a project’s proposed environmental risk, an omission Pojar called “a big deal” for scientists.

He said peer review is standard practice and “part of the code of ethics” for scientists. “It’s the way scientists are supposed to operate.”

Instead, the legislation sets up technical advisory committees to evaluate project risk that will include provincial ministry staff who might not be experts in a relevant field such as toxicology or salmon biology.

“This status quo approach fails to require those responsible for evaluating a project’s environmental risk to have the necessary expertise to adequately assess the evidence,” said the scientists’ letter.

Data used in assessments kept from public

And then there’s the question of transparency, which has been lacking in projects such as the Site C dam on B.C.’s Peace River.

Under the proposed legislation there is no requirement that all data generated by the project proponent, or gathered by a technical advisory committee, be made public, according to the scientists.

Nor does the proposed legislation include criteria for how the government’s final assessment decisions will be made, they say.

“At the moment there’s no requirement for them to make all records available,” Price explained.

But Heyman said all documents — “with the exception of something that is proprietary information” — will be made public and no amendments to the Act are necessary.

He said the new project design process outlined by the Act will determine “exactly what kind of information is needed, where it should come from and where it should be reviewed.”

And both the technical advisory committee and the Environmental Assessment Office have the option to seek further “outside independent advice,” Heyman said.

“It was very important to me that this project be trustworthy, that it be transparent and that information be independent.”

Price said the bill contains language that gives the technical advisory committee or the Environmental Assessment Office “options” such as calling for independent evaluators. But scientists need more assurance than “options,” he said.

“If there’s no requirement we have to trust that the government or the Environmental Assessment Office will follow through and ensure that things remain independent and they maintain their scientific credibility.”

“If they have these options, these loopholes, it doesn’t fill me with a lot of confidence that the process will be as rigorous as it needs to be.”

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Hans Matthews spent much of 2012 criss-crossing Alberta and B.C. as a member of the federal-provincial panel conducting hearings on the contentious Enbridge Northern Gateway pipeline.

Those emotional hearings eventually overshadowed the proposal itself, leading then-natural resources minister Joe Oliver to accuse “environmental and other radical groups” of hijacking the process to “stop any major project, no matter what the cost to Canadian families in lost jobs and economic growth.”

Central to the controversy was opposition from First Nations along the route, many of whom felt they hadn’t been properly consulted during the development of the proposal. It was a social and political mess, all for a project that eventually died anyway. But Matthews, now the president of the Canadian Aboriginal Minerals Association, says it didn’t need to be that way.

“By embracing aboriginal knowledge, communities’ knowledge, it would have been a more balanced and fair process,” Matthews told The Narwhal.

Indigenous ways of life not contemplated by current system

That idea has come to the fore yet again with the Federal Court of Appeal’s rejection of the permits that allowed Kinder Morgan to proceed with its expansion of the Trans Mountain pipeline. In its decision, the court cited a lack of meaningful two-way consultation with First Nations in the planning process, along with other factors.

“Canada was required to do more than receive and understand the concerns of the Indigenous applicants,” wrote judge Eleanor Dawson in the court’s written decision. “Canada was required to engage in a considered, meaningful two-way dialogue.”

In other words, Canada pushed ahead with its own process, pausing only now and then to collect some feedback from First Nations. For the sake of those affected, the governments in charge, and even the project itself, it is now clear that that was not the right approach. But it didn’t have to be that way.

A new concept is emerging in the world of environmental decision-making: that it’s not enough for governments to loop Indigenous groups into their environmental assessments, and that instead Indigenous peoples should be able to conduct their own processes that run parallel to the non-Indigenous-led assessments.

A recent report by the Firelight Group, a consultancy founded to support the rights and interests of Indigenous communities, found Indigenous environmental assessments “rely on and protect Indigenous culture, language, and way of life in ways existing government legislated systems have either never contemplated or are still not accommodating.”

How is Indigenous assessment different?

In a traditional assessment, Indigenous peoples have some opportunity to contribute to the process and to be heard. But the decision is ultimately up to a government that may not share the worldview of the affected Indigenous communities.

“That means that people are engaged, but if they are busy on another file, or not meaningfully engaged or unable to get their point heard, then they are not able to be equal decision-makers or use their own set of values, worldview and Indigenous law to drive the process forward,” author of the Firelight report, Ginger Gibson, told The Narwhal.

“Indigenous EA [environmental assessment] means Indigenous governments are setting the terms, they’re conducting the review with their worldview and their Indigenous laws — they’re making decisions about the project themselves.”

“It’s a fundamental difference,” Gibson added.

The result is an assessment that from the get-go is steeped in the ideas that are not as well recognized in Eurocentric processes.

“You’re probably going to get a more realistic, pragmatic approach,” Matthews said.

“It would be a community-driven process from the very beginning.”

Indigenous assessment isn’t brand new

The report, which includes three case studies, highlights one example of a fully independent Indigenous impact assessment of a proposed LNG plant that was conducted by the Squamish First Nation in B.C.

The First Nation conducted the assessment after determining the scope themselves.

As opposed to the British Columbia government process, which only allowed submission of archaeological evidence, Indigenous law was incorporated throughout the Squamish-led assessment, as well as the First Nation’s knowledge and culture.

Eventually the First Nation-led process ruled in favour of the project, attaching 25 conditions including some that would mitigate the impacts on cultural practices such as hunting and fishing.

“This more holistic approach is much more conducive to — and reflective of — the type of communal decision-making of many Indigenous people,” the report concluded.

Matthews says this approach allows Indigenous communities to feel their values are being respected by potential developments.

“It’s also a matter of showing respect for the people that have occupied and used the land since time immemorial,” he said.

Gibson says no matter what the outcome of the assessments, the result is a more robust look at the proposed project.

“They are sometimes reaching similar decisions, sometimes reaching different decisions,” she says. For example, both the Tłı̨chǫ government, in the Northwest Territories, and federal government reached the same conclusion, to approve a proposed cobalt-gold-bismuth mine in the First Nation’s territory.

“Our finding from our research is that each process is always better because of the parallel review. There’s more information, there’s more known about the project, there’s more unearthed about the impact on Indigenous people — and there’s a stronger buy-in to the outcome of the process.”

What would this mean for Indigenous-Canada relations?

The history of Canada and its dealings with Indigenous communities on resource issues is fraught with missed opportunities for fulsome conversations.

The Gwich’in of the Northwest Territories and Yukon are a prime example of this lack of engagement.

“There was a lot of oil and gas development and we really didn’t have a say in what was happening,” said Jordan Peterson, deputy Grand Chief of the Gwich’in Tribal Council, which commissioned the report from the Firelight Group.

“We haven’t always been fully consulted or engaged or involved in these processes.”

The Gwich’in Tribal Council is particularly concerned about the Porcupine caribou herd, a vital cultural and economic resource that, like all caribou, is sensitive to the kind of habitat fragmentation and disturbance oil and gas development can create on the landscape.

Peterson and Matthews agree that Indigenous-led environmental assessments would be one way to bring Canada and First Nations, Métis and Inuit closer together, and undo some of the impacts of colonial processes.

“By engaging communities in the assessment process, you’re meeting the goals of free, prior and informed consent,” Matthews says, contributing to the federal government’s stated goal of complying with UNDRIP and the Truth and Reconciliation Commission’s calls to action.

“Ninety-nine per cent of the time it’s an aboriginal community that will have some impact from a resource project.”

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Federal Green Party leader Elizabeth May and NDP deputy environment critic Linda Duncan shared a common response to the passage of Bill C-69 — which represented a change to modernize how projects such as pipelines, hydro dams and mines are reviewed — in the House of Commons on Wednesday.

In a word, they called it “appalling.”

“It was really undemocratic. It is a total missed opportunity,” said Duncan, who resigned from the Standing Committee on Environment and Sustainable Development over its handling of the bill.

“It was the most appalling process I’ve ever been through in my time in environmental law,” Duncan told The Narwhal in an interview. Duncan has worked in environmental law for 45 years.

The bill will replace the Canadian Environmental Assessment Agency with the Impact Assessment Agency of Canada.

Prime Minister Justin Trudeau’s Liberals came into power on a promise to “restore lost protections” and implement “modern safeguards” after the Stephen Harper government rolled back key environmental laws in 2012, including reducing public input.

Canada’s environmental assessment laws have been criticized for being weaker than those in the U.S. and failing to consider the cumulative effects of projects, Canada’s international climate change commitments and the constitutional rights of Indigenous people.

These gaps have contributed to dysfunction in decision-making on major natural resource projects, leading to protests such as those around the Trans Mountain pipeline and the Site C dam.

“Over time, we have slid backwards,” Duncan said. “This was an opportunity to put in place — finally —  a strong federal impact assessment process and it’s a missed opportunity.”

Duncan noted the Liberals have not turned down a major project since taking power nearly three years ago. “And this law is not going to change that,” she said.

May said that before 2012, 4,000 to 5,000 projects a year were screened through the federal process each year. After Harper’s changes, that number was reduced to closer to 25.

“I don’t think that’s adequate,” May told The Narwhal. “Small projects not making the nightly news are sometimes the ones that need to be screened to make sure they’re not having a negative environmental impact.”

Bill C-69 doesn’t fix that problem, which May calls a “tragedy.”

“If you have a major reform effort and it’s bad, you’re not going to get back to it again for five to 10 years.”

Between 1975 and 2012, only two projects reviewed federally were rejected, May noted.

In a sign of how polarized natural resource debates have become in Canada, the Conservatives also panned the new Impact Assessment Act, calling it a “death knell” for natural resource projects.

Amendments improved bill C-69 — but is it enough?

Other environmental experts gave the bill cautious praise, after several amendments were made to improve the new law — but even they warned the devil will be in the details.

“The bill is far from perfect, but with these amendments we feel more confident that Canada’s new impact assessment regime will help ensure sustainability and avoid decisions that put politics ahead of science and environmental protection,” said Anna Johnston, a staff lawyer at West Coast Environmental Law.

“We were pleased to see important additions made to the Canadian Energy Regulator Act at the committee stage, including the requirement to consider climate obligations in the review of all energy projects,” said Nichole Dusyk, postdoctoral fellow at the Pembina Institute.

Johnston said crucial amendments were made to ensure decisions are no longer made in a black box. Now cabinet must make its determination based on five factors (not political considerations) and must provide a detailed rationale for the decision.

“There will be a lot more transparency in decision-making,” Johnston told The Narwhal.

The factors cabinet will consider in determining whether a project is in the public interest include the extent to which the project contributes to sustainability, the impact the project may have on the rights of Indigenous peoples and the extent to which the effects of the project hinder or contribute to Canada’s ability to meet its climate change commitments.

Gaps in Bill C-69 include what projects will be reviewed, discretionary powers

One of the biggest gaps in the new bill is a lack of clarity around which projects will actually be reviewed under the new Impact Assessment Act.

“The government has not released a draft list of projects that will be subject to Impact Assessment. Unless the list is significantly expanded, the Impact Assessment Act will ultimately do little to improve on the status quo and will not tackle cumulative environmental effects,” said Joshua Ginsberg, director of legislative affairs at Ecojustice.

Oilsands projects could still be exempted from the federal review process, for instance.

“The new laws will only be as effective as their implementation,” Ginsberg said.

Another major area of concern is the amount of discretion left to government.

“C-69 is just rife with discretion. Interestingly, Conservatives and industry are also expressing concern about that,” the NDP’s Duncan said.

Johnston said a good example of the amount of discretion allowed for in the bill deals relates to public participation.

“It says there will be meaningful public participation, but we don’t know how often the public will be engaged, how long the engagement periods will be, how much funding they’ll have, so there’s still a lot still to flesh out in the regulations,” she said.

Jamie Kneen, communications coordinator for MiningWatch, said the amendments “mildly improved” the bill but said “there’s a lot of wiggle room in there still for arbitrary decisions.”

Some of his biggest outstanding concerns include how often regional assessments (which look at the cumulative impacts of many projects in one area) and strategic assessments (which look at how policies like climate change ought to be applied) will actually be utilized — because they aren’t mandated.

“Those kinds of assessments either won’t happen or will be very limited in their scope,” Kneen said, pointing to the Salish Sea and the Gulf of St. Lawrence as places in need of regional assessments.

Rights of Indigenous peoples not fully incorporated

For Duncan, her biggest concern is that amendments to include the United Nations Declaration on the Rights of Indigenous People more prominently in the bill weren’t passed.

“They talk a big line about signing onto international treaties and then when it comes to actually instituting it in domestic law, there’s no commitment,” Duncan said.

“Most of our major resource projects are occurring on or impacting Indigenous peoples, their lands and their waters.”

Ball in Senate’s court

Duncan and May hold out hope that the bill may be improved in the Senate, with Duncan pointing to four Indigenous members of the Senate who she has shared her amendments regarding Indigenous rights with

“The ball is in their court now,” Duncan said.

Johnston, meanwhile, is concerned that the bill may not make it through the Senate before the next federal election 16 months from now.

“With the marijuana bill being knocked back and forth, there’s the potential that Bill C-69 could be held up so long that it actually doesn’t pass until after the next election, in which case we’re back at square one,” she said.  

But square one might not be the worst spot, given the flaws in the bill, according to May.

“If it didn’t pass, I wouldn’t be heartbroken,” she said.

Duncan hopes the Senate will travel and talk to people across Canada before passing the bill.

“[The Liberals] had a golden opportunity to put in place a credible review process,” Duncan said. “So many people put their heart and soul into coming up with a strong law. Very little of it was listened to.”

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In 2015, a pipeline was designed to cut through a sensitive wetland in B.C. The professional biologist reviewing the project told his company that there could be significant damage to the wetland and an extensive monitoring program would have to be set up to watch for effects.

The larger consultancy the biologist’s company worked for refused to submit the report to the pipeline company.

“They took it and rewrote it, basically,” he told DeSmog Canada. “It wasn’t my document anymore.”

The biologist, who spoke to us on the condition of anonymity, said he engaged in a protracted battle with the consultancy, with little effect.

Eventually the B.C. provincial environmental assessment office stepped in and recommended the same monitoring system he originally suggested.

That fight to alter the environmental impacts documented in a scientific report is just one example of the ways professional biologists, engineers, geoscientists and others across the country face pressure from a system with few legislated requirements for scientific rigour.

In interviews with several current and former consultants, the notion was raised again and again that strict rules for scientific integrity could provide a backstop for professionals who are being pressured to alter their recommendations to benefit a project.

That could be about to change, as the federal government introduces a new Impact Assessment Act to replace Canada’s controversial and much-maligned Environmental Assessment Act.

A large majority of Canadians want the new Act to include stricter rules around the inclusion of science, according to a new study released Monday in the journal Facets.

Looking at the comments from public, industry and government solicited by an expert review panel, researchers found the public overwhelmingly asked for more rigorous and transparent scientific analysis of projects during an environmental review.

“In the online questionnaire, people had to rank their top three concerns; science comes out way up there,” said Aerin Jacob, an author of the new study.

The sample of opinions — being drawn from written submissions to the standing committee — is admittedly self-selecting, leaving the paper open to criticisms of selection bias.

“These are people who care enough to be involved, whatever their views are,” Jacob concedes. But other surveys conducted in more traditional ways have returned similar results.

Coauthor Jonathan Moore says what makes the survey unique is that it’s a way of looking at what people are telling the government — thus allowing people to evaluate what the government actually does with that information.

For example, while industry, scientists and the public were aligned on some issues, such as transparency in the government’s decision making, one major area in which industry opinions differed from those of scientists and the public was how rigorous science should be in environmental assessments.

“I think what that means is that the degree to which the government tackled that or not will reveal the degree to which environmental assessment is created for industry or created for the rest of Canada,” Moore said.

Science often not made public

While language in Environment Minister Catherine McKenna’s mandate letter instructs her to “ensure that decisions are based on science, facts, and evidence, and serve the public’s interest,” there is no formal requirement for evidence to be made public before decisions are made.

The new study broke down that concept of evidence-based decision making in environmental assessments into five categories: openly sharing information, evaluating cumulative effects, scientific rigour, transparency in decision-making and independence between regulators and proponents.

“These results not only show there’s strong support across multiple sectors, they also give a road map of how to do it,” says Jacob.

“Rather than just saying you should use science or you should do evidence-based decision making — what does that actually mean? — here, we’re showing, here are five fundamental components of having a scientific approach to environmental assessments, and truly follow up on that commitment.”

Currently, the federal cabinet has a high degree of discretion once assessments have been presented to the government, and the factors that were or were not considered are not made public.

Increased transparency was one of the categories on which almost everyone agreed. For industry, it could mean saving time on environmental assessments, by knowing what was coming ahead of time. For the public, it could mean being able to hold politicians accountable for not taking into consideration promises they had made, or priorities they had professed to have.

Just three submissions were opposed to increased transparency in decision-making, compared to more than 150 in favour.

That’s reflected in the recommendations made by the expert panel: that “information be easily accessible, and permanently and publicly available.”

While the proposed new Act uses the word “transparent” several times, it does not require that data be made public by default, just that there be instructions on how the information can be obtained.

“That kind of redirection is not useful,” says Martin Olszynski, a lawyer at the University of Calgary Faculty of Law.

“You know that the agency has an internal file that contains all of that information, and we basically just say, all of that information should be on the public registry.”

“What if there’s a little bit of harm on my project, and there’s a little bit of harm on somebody else’s project, which is right downstream…Who’s looking at the big picture?” https://t.co/iyVNkwLqJy

— DeSmog Canada (@DeSmogCanada) May 7, 2018

No interconnected knowledge

That lack of transparency also means there are limited opportunities to consider cumulative impacts.

Commenters from the public and even many in industry also asked for more consideration of cumulative effects. Whether through greenhouse gas emissions, air or water quality degradation or wildlife habitat destruction, Jacob said the piling up of effects from different projects is what pushes consequences past a point of no return.

“No one project is going to do that. But together, they do,” she says.

A second professional biologist who spoke to DeSmog Canada on the condition of anonymity said cumulative impacts are among the most insidious, because without specific laws around watching for them, it’s easy to feel pressured to overlook how one project’s impacts stack on those of another nearby.

“What if there’s a little bit of harm on my project, and there’s a little bit of harm on somebody else’s project, which is right downstream…Who’s looking at the big picture?” she asked.

That gap in legislation means that industry-hired professionals have little in the way of recourse when asked to make determinations that they might otherwise feel uncomfortable making. British Columbia is currently conducting a review of the system through which paid consultants are relied upon by the province in environmental decision making (known as professional reliance). The province is also reviewing its environmental assessment process with an eye toward cumulative impacts.

Pressure on professionals

In December of 1980, David Mayhood sent in a report evaluating damage CN Rail had done to a forest in Jasper National Park. It had diverted a stream into the forest to protect its railbed. He found the stream had become impassable for fish because of logjams, while 10 hectares of forest had been wiped out.

“I was fairly graphic in the description about the damage that had been done there,” he said. But there was little appetite for graphic descriptions at the consultancy that had hired him.

“When I got the final copy of the report back with our section in it, it had been drastically changed,” he said. “Where I said an area had been devastated, they said it had been ‘altered.’ ”

Mayhood wrote a letter of protest, but the report was submitted.

He says that kind of pressure to water down language, and consequently undermine the science behind it, has persisted throughout his career.

“The fundamental issue is that biologists…should be independent,” he says. “They aren’t. They’re objectively not independent; they work for a government that has a political agenda, and private industry that also has its own agenda.”

Alana Westwood, science and policy analyst with Yellowstone to Yukon Conservation Initiative, experienced that lack of independence as she began her career as a junior biologist at a consulting firm. She said that although most experiences met the standard of science, there was one particular firm that went far outside what could be considered objective science.

The consulting company was dominated by one client, an electrical generation company, which held an inordinate amount of power over the quality of science Westwood and her colleagues could do.

“I was routinely asked to do things I had no experience for or training in,” she said. For example, she was asked to conduct a bird survey in what she now knows is the off-season for the birds she was ostensibly looking for, using methods she now knows would never be effective.

And it got worse, when she was asked to do a literature review of the known effects of a particular monitoring technique the firm’s sole client wanted to use.

“Then my boss came to me, and said, of the 20 or so papers you found, how many found no effect, or found it didn’t harm them?” she recalls. There were four papers among the 20.

Her boss was clear on what needed to be done, in order to please the client upon which the entire business turned — like so many biologists before and after her, she would be asked to compromise her training, ethics and better judgment to make life easier for a client whose priority was delivering value to shareholders, rather that protecting the environment.

“Use only those four,” Westwood recalls being told.

As the interview comes to a close, co-author Jonathan Moore loops the conversation around to hockey. In recent years, the NHL — concerned that team doctors were facing conflicts of interest as they assessed players for concussions — decided to change their system.

Today, that assessment is done by outside doctors who wouldn’t face pressure to put unfit players back on the ice.

Moore sees the same possibility for environmental assessment reform to take the pressure away from professionals to deliver what their clients want.

“I find that if Canada can do it for hockey, I would hope they could do it for making these huge decisions that affect the environment and people that rely on the environment.”

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As pipeline politics dominate headlines, British Columbia is poised to overhaul the process that guides how major resource and development projects proceed.

The review now underway of the environmental assessment process has the potential to restore public confidence in the system that evaluates large developments — from open-pit coal mines to pipelines to hydro dams — by considering the combined effects of multiple projects in a single region and instituting other sweeping changes that critics say are long overdue.

“We had this ridiculous situation in northern B.C. where we had 18 LNG projects, five different pipelines and an oil export project all proposed at the same time here,” said Greg Knox, executive director of the SkeenaWild Conservation Trust.

“People were asking ‘can Kitimat handle these LNG facilities, plus [the] Enbridge [Northern Gateway pipeline], plus [the] Rio Tinto’ [Alcan aluminum smelter], and wondering how it would all impact the environment and people’s health.”

The projects would have affected local air quality at a time when the B.C. government had already granted a permit to the Rio Tinto Alcan smelter allowing the company to increase sulphur dioxide pollution in the Kitimat airshed by more than 50 per cent.

Under B.C.’s current regulations, each resource project is assessed separately, as though the others do not exist. There is no mechanism to study the cumulative impact of various projects on, for example, a single caribou herd, or on overall water or air quality in a community like Kitimat.

Concern about additional air pollution from LNG plants prompted the Kitimat community to ask the B.C. government to conduct a regional environmental assessment to address the combined impact of all the projects and figure out how to proceed with fewer ecological and community impacts.

“We had pipelines going everywhere when it would have made sense to have a pipeline corridor,” Knox said.

But the request was ignored, Knox said.

“They refused. They basically sent some form letter. They rejected doing a regional environmental assessment. It was a boilerplate response.”

The Elk Valley coal mines in southeastern B.C. are another case in point when it comes to the cumulative impacts of resource projects. The valley, which is part of one of North America’s most important wildlife corridors, is home to five operating coal mines.

More than 100 years of coal mining has polluted the Elk River with worrisome contaminants such as selenium, a heavy metal highly toxic to fish and birds. Yet each new mining proposal is examined as though it is the only project polluting the river.

B.C. Auditor General Carol Bellringer flagged the government’s failure to manage the cumulative impacts of the Elk Valley mines as a cause for concern, pointing to the environment ministry’s failure to address known environmental issues and the “lack of sufficient and effective regulatory oversight and action” that has allowed the degradation of water quality.

B.C. Environment Minister George Heyman has said the review of the environmental assessment process is designed to restore public confidence in the system.

But how far must the changes go to examine the impacts of a proposed project like a coal mine expansion in the context of other significant resource projects in the same watershed or airshed? Or to prevent projects staunchly opposed by First Nations from advancing through the system at considerable cost to taxpayers?

Decisions currently made in ‘black box’

West Coast Environmental Law lawyer Gavin Smith and other experts say the overhaul of B.C.’s environmental assessment regime must address the lack of a clear rationale behind government decisions to grant certificates to projects with grievous impacts on First Nations and the environment — projects such as the $10.7 billion Site C dam.

“What’s been happening is that the environmental assessment regime goes into a black box,” Smith told DeSmog Canada.

“All of this work on the assessment happens, and it goes to ministers and they just make a decision. Communities are left feeling like all the time and effort they’ve put into the process has been totally ignored. It’s not actually even clear on what basis the decision was made.”

The B.C. government issued an environmental assessment certificate for the Site C dam in 2014, even though First Nations are fighting the project in court and the dam will cause more ecological damage than any project ever examined in the history of Canada’s Environmental Assessment Act, according to more than 200 leading Canadian scholars.

Only three projects ever rejected in B.C.

No matter how environmentally egregious a project is, or how intense the opposition from First Nations and other local communities, when a major resource project exits B.C.’s current environmental assessment process it is almost certain to be stamped “approved.”

“Even projects which, according to federal law, have been found to have unjustifiable impacts on the environment and on Indigenous culture and governance have been approved through the provincial system,” Smith said.

“It’s a pretty strong indication that the system is built to facilitate getting to yes.”

Only three projects have ever been refused a B.C. environmental assessment certificate, according to an email from the provincial environment ministry.

The Ajax mine, a 1,700-hectare open-pit gold and copper mine proposed for the outskirts of Kamloops by Polish mining giant KGHM, is the only project to be rejected in the past seven years.

A proposed landfill for Metro Vancouver garbage, on the Ashcroft Ranch near Cache Creek, was turned down in 2011, while the Kemess North gold and copper mine north of Smithers was rejected in 2008 — but then approved last year.

Rejected projects often return

Smith said there must be mechanisms built into the revamped environmental assessment process to ensure rejected projects can’t simply be tweaked and re-tendered.

Lawyer Sean Nixon vividly remembers his reaction on the day he heard Taseko Mines had submitted a new plan to extract gold and copper from the area around Fish Lake in B.C.’s interior, a lake sacred to the Tsilhqot’in Nation.

“The first response was incredulity,” recalled Nixon, who had represented the Tsilhqot’in National Government several years earlier during the environmental assessment for Taseko’s project, dubbed the “Prosperity” mine.

The B.C. government granted Taseko a provincial environmental assessment certificate in 2010.

But Ottawa refused to issue a federal certificate, largely because the mine would drain Fish Lake — known as Teztan Biny to the Tsilhqot’in Nation — and turn part of it into a toxic tailings pond that would destroy rainbow trout habitat and wetlands.

That was supposed to be the end of the matter.

But then the project was back again. This time, when Nixon heard about it in 2011, it had a different name: Taseko called it the “New Prosperity” mine.

The project was virtually the same, with one major exception. The company said it would move the tailings pond upstream from Fish Lake — enough of a change to spark a second federal environmental assessment review, at an unknown cost to Canadian taxpayers.

In B.C., the process the company went through was a breeze by comparison. Taseko merely requested an amendment to its environmental assessment certificate, which was duly approved by the provincial government even though Taseko lacked a clear plan to keep tailings pond contaminants out of Fish Lake.

“The province didn’t need details about how the company planned to keep chemical contaminants from destroying the lake,” Nixon told DeSmog Canada. “The mining company said it would work out the details later. And B.C. accepted that claim at face value.”

As with the Prosperity mine, there’s nothing to stop the Ajax project from being re-submitted to the B.C. Environmental Assessment Office with modifications and a new name.

The KGHM website still lists Ajax as a project “under development,” and the company has said it is considering its options.

Early-planning phase would axe non-starter projects

Smith says the revamped system needs to include the ability for the B.C government to say “this project doesn’t stand a reasonable likelihood of success so we’re not wasting taxpayer money doing, for example, a third assessment on a project that’s already been rejected.”

Sustainability criteria — such as targets for maintaining air and water quality – need to be built into the law, and decision-makers need to justify their decisions based on these criteria, Smith said.

To deal with projects as controversial and destructive as the Site C dam or the New Prosperity mine, Smith said B.C.’s environmental assessment process needs to include an “early planning phase,” during which the views of First Nations and other local communities are taken into account well before the project advances through the system.

Perhaps the project is “a total non-starter from the get-go,” said Smith, in which case communities should be able to say “there’s no way this project is going to happen.”

In the case of Taseko, the former B.C. Liberal government approved exploration permits for the New Prosperity project last summer during its final days in office, while Tsilhqot’in members were under a wildfire evacuation notice, even though the federal government had also refused to grant the project an environmental assessment certificate the second time around.

The company subsequently took the federal government to court and lost in December.

Yet Taseko’s website still lists the New Prosperity mine as one of the company’s five properties, while noting “there is considerable uncertainty with respect to successful permitting of the project.”

Smith said he would be surprised if the company submitted a third iteration of the project to the B.C. Environmental Assessment Office. But until B.C.’s environmental assessment process changes, he said, “on paper, Taseko’s New Prosperity project still exists and is still a risk.”

A 12-member advisory committee, led by ecologist Bruce Fraser and Lydia Hwitsum, former Cowichan Tribes chief and former chair of the First Nations Health Council, is due to release a discussion paper on the review process in May, including feedback from the Environmental Assessment Office.

After a public comment period, the government will introduce reforms in the late fall.

The federal government is simultaneously overhauling its environmental assessment process with Bill C-69, but the bill has been criticized for falling short in several key areas.

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There are so many problems with B.C.’s current environmental assessment process that a review, announced Wednesday by Environment Minister George Heyman, will almost certainly mean improvements, say environmental groups.

Heyman said it is clear that the public has lost trust in the process, leading to conflict and uncertainty and government’s priorities are working with First Nations and ensuring the process is science-based.

“We’ll be working with Indigenous groups at every step of the revitalization process,” Heyman said.

“Our government wants to ensure we have a process that’s transparent, science-based, timely and provides early indications of the likelihood of success. This work will also contribute to our government’s commitment to fully implement the United Nations Declaration on the Rights of Indigenous Peoples,” he said.

An overhaul of the process that decides whether major resource and development projects should proceed, will be spearheaded by a 12-member advisory committee, led by ecologist Bruce Fraser, former chair of the Forest Practices Board and the provincial Task Force on Species at Risk, and Lydia Hwitsum, former Cowichan Tribes chief and former chair of the First Nations Health Council.

Other committee members include First Nations, industry and union representatives and specialists in impact assessment, climate change and renewable energy.

The committee will release a discussion paper in May, including feedback from the Environmental Assessment Office, which will be holding government-to-government meetings with First Nations and meeting with industry, local governments and non-governmental organizations.

After a public comment period, the government will introduce reforms late fall. Priorities include enhancing public confidence, transparency and “protecting the environment while supporting sustainable economic development,” says a government news release.

Assessments already underway will continue under the current system.

“There have been too many instances where development has failed to ensure the health and safety of our local communities. This has left communities and First Nations with no choice but to use the courts to advocate for their own protection.” https://t.co/rjovpT4fuO

— DeSmog Canada (@DeSmogCanada) March 8, 2018

B.C.’s environmental assessment process brewing controversy

Controversies over environmental assessments in B.C., combined with the previous Liberal government’s increasing reliance on industry professionals for advice — something now under review by the province — have included the Site C dam, the Mount Polley tailings dam collapse and approval of the Woodfibre LNG facility on Howe Sound.

A high-profile conflict erupted after approval of a contaminated soil dump near Shawnigan Lake, a battle that pitted the community against the former B.C. Liberal government and revealed deep flaws in the assessment process, such as the “independent” engineering company being paid by the proponent.

B.C. Green Party MLA for Cowichan Valley Sonia Furstenau, who was at the heart of the fight against the soil dump, said the review is a first step in restoring public trust in the environmental assessment process.

ICYMI: Embattled Taskeo Mine Permits Show Why B.C. Needs an Environmental Assessment Overhaul

“There have been too many instances where development has failed to ensure the health and safety of our local communities. This has left communities and First Nations with no choice but to use the courts to advocate for their own protection,” she said in a statement.

“A robust environmental assessment process that includes adequate consultation and thorough scientific, evidence-based analysis will avoid costly legal challenges and save government from dealing with expensive clean-ups when projects go awry.”

A strong process will also provide greater certainty for industry, Furstenau said.

Ecosystems, cumulative effects should be considered in assessments

Gavin Smith, West Coast Environmental Law staff lawyer, said the move to overhaul the system is sorely needed as the current model is not working.

“It’s time for a new approach, one that safeguards ecosystems, recognizes indigenous jurisdiction, helps B.C. meet its climate commitments and responds to community voices,” he said.

A recent paper by WCEL examined flaws in the system such as weak public participation, the failure to consider the cumulative effects of development and the failure to recognize First Nations as decision-makers in their territories.

The review has the potential to ensure better decisions about projects such as mines and pipelines and to protect against “death by a thousand cuts” from the combined effects of may developments in a region, Smith said.

Peter McCartney, Wilderness Committee climate campaigner, echoed the long overdue theme and pointed to the Woodfibre decision as an example of valid concerns being ignored.

Bringing First Nations into the process and transparency around how public comment is taken into account should be priorities, McCartney said.

“And there needs to be a route to ‘no’ in this process,” he said.

Instead of looking at mitigation for problems such as putting a gravel mine in a salmon spawning area, there needs to be a clear ultimatum, early in the process, that says the project will not go ahead, he said.

ICYMI: B.C. Urged to Review Industry-Funded Science Behind Approval of Gravel Mine

Jens Wieting, Sierra Club B.C. Forest and Climate Campaigner, is cautiously optimistic that the plethora of problems with environmental assessments can be fixed.

“First, we need a climate test as part of environmental assessments because that will show us that some of the projects are inconsistent with our goals to stabilize the climate. That is true for LNG terminals and the Kinder Morgan pipeline,” he said.

Also, the entire ecosystem must be considered when a project is proposed.

“Ecosystems and endangered species are already under pressure and industrial development can be the tipping point. Look at the southern resident orcas — we know the Kinder Morgan tanker traffic would lead to extinction,” Wieting said.

Science-based decisions are needed and, if a project leads to extinction or the collapse of an ecosystem, it must be rejected, he said.

The overhaul of the provincial environmental assessment process comes after an announcement that the federal process is being streamlined.

A new Impact Assessment Agency will be tasked with carrying out reviews of all major projects, with a mandate to include health and social impacts and long-term effects on Indigenous people. Simultaneously the National Energy Board will be replaced by the Canadian Energy Regulator.

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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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