For years environmental organizations have called on the federal government to do something about the leakage of  billions of litres of toxic chemicals from Alberta’s oilsands tailings ponds into the Athabasca River every year.

And for years they’ve been ignored — until now.

NAFTA’s Commission for Environmental Cooperation (CEC) is reviewing a submission by Environmental Defence, the Natural Resources Defense Council and Daniel T’seleie. Now, Canada must provide a response to the arguments made in the submission.

Here’s a primer on why this process matters.

So what’s going on with leaky tailings ponds?

Tailings ponds now cover more than 220 square kilometres of previously boreal forest around Fort McMurray, Alberta.

It’s been suspected for ages that these ponds have been seeping chemicals into nearby water systems — chemicals such as benzene, ammonia, cyanide and arsenic.

In 2013, investigative reporter Mike De Souza revealed via an access to information request that then-natural resource minister Joe Oliver had received a memo citing studies that “detected potentially harmful, mining-related organic acid contaminants in the groundwater outside a long-established out-of-pit tailings pond.”

Only a year later, another federal study confirmed that toxic chemicals were reaching the Athabasca River.

In their submission to the Commission for Environmental Cooperation the three parties cite documented cases of contaminated tailings waste reaching (or projected to reach) waters in Jackpine Creek (from Shell), Beaver Creek (from Syncrude), McLean Creek (from Suncor) and the Athabasca River (from Suncor).

Such toxins can have calamitous effects on fish populations, which many local Indigenous peoples rely on for sustenance.

What’s the specific claim being made by the submission?

That Canada has failed to enforce subsection 36(3) of the federal Fisheries Act.

Specifically, that subsection reads (take a deep breath) that: “no person shall deposit or permit the deposit of a deleterious substance of any type in water frequented by fish or in any place under any conditions where the deleterious substance or any other deleterious substance that results from the deposit of the deleterious substance may enter any such water.”

The case that’s being made is that ignoring leaking tailings waste is violating that subsection.

Interestingly, the submission notes that case law has emphasized that the water itself does not need to be made “deleterious” to fish, with the question being whether or not the substance itself is a “deleterious substance.” It might sound like a silly debate, but it could make or break a case.

“It’s pretty clear there’s been a lack of enforcement action both by Alberta and the Canadian government, which is outlined in our complaint to the CEC,” Tim Gray, executive director of Environmental Defence, told DeSmog Canada.

“We felt this was a way of compelling the Canadian government to respond to someone, and this would shine the light of day on this issue with how the Canadian response comes back.”

What You Need to Know About NAFTA’s Investigation into #Oilsands Tailings Leaks https://t.co/StUCzhybGO #environment #NAFTA #cdnpoli pic.twitter.com/XyHSb2LsLT

— DeSmog Canada (@DeSmogCanada) August 23, 2017

Alright, so how does NAFTA have anything to do with this? Isn’t it a trade deal?

Indeed, it is: introduced in 1994, NAFTA was a groundbreaking regional trade agreement between Canada, the U.S. and Mexico.

It was also very controversial.

Aaron Cosbey, senior associate at the International Institute for Sustainable Development and expert on environmental issues pertaining to international trade, said in an interview with DeSmog Canada that there was a great deal of opposition to the deal at the time of signing, especially from the environmental community.

Much of the concern related to the expectation that a lot of low-wage work would be relocated to Mexico, with laxer environmental laws and regulations.

“Canadian NGOs were making the same argument: you can’t put in place this free trade agreement, which pits us against a country where the environmental law is not enforced,” Cosbey said.

“It’s not free trade if you do that.”

In response, the North American Agreement on Environmental Cooperation was created as a separate treaty, signed at the same time as NAFTA. One of its key roles has been to serve as a tribunal of sorts for submitted infractions of environmental laws, with the worst “punishment” being the issuing of a non-binding “factual report” which serves as a “name and shame” document.

“It has no legal force beyond bringing a little welcome sunshine to the dark corners of non-enforcement,” Cosbey said.

In short, it was designed as a way for the three countries to have a common mechanism in place to file complaints about environmental practices. The submission about tailings leakage was the very first step in this process. The determination that the submission met the criteria for review on August 16 was the next. Now, Canada has to respond to the allegations.

So does this mean that Canada will be reprimanded?

Nope.

All that’s happened at this point is that the secretariat acknowledged the submission is valid. Canada has until Sept. 28 to officially respond, although it could request a 30-day extension for “exceptional circumstances.” The secretariat then figures out whether or not to proceed with the “factual record.” It can either decide that it’s satisfied with the response and won’t proceed further, or recommend the preparation of the “factual record.”

But here’s the thing.

In order for the factual record to actually be prepared, the environment ministers of the three countries have to agree by a two-thirds majority to it. In other words, two of the three NAFTA environment ministers have to say “yes,” otherwise it won’t proceed further.

That’s a very real possibility. Cosbey said there have been at least five instances in the past decade in which the secretariat recommended the preparation of the factual record, and the council of environment ministers shot it down. In total, there have been 30 submissions made in the last 10 years, with only three resulting in the creation of a factual record.

In fact, almost this exact same submission was shot down at the council level, despite a recommendation from staff at the Commission for Environmental Cooperation.

Canada’s initial argument against it was that there was an ongoing court case (which would mean that a factual report couldn’t have been completed). As it turned out, the court case wasn’t proceeding at the time. At the time, CBC reported that assistant deputy minister for Environment Canada, Dan McDougall, then declared that the commission had no jurisdiction to investigate domestic law, which appears to contradict the entire point of the commission.

McDougall still works as assistant deputy minister for Environment and Climate Change Canada.

What are the chances that Canada will fight this?

It’s impossible to say.

The country does have a long track record of opposing the process, with Canada blocking two other investigations in 2014 with Mexico’s support.

But we’re now living under what Cosbey described as a “supposedly now-environmentally friendly Liberal government.”

As noted by Gray, the federal government is embarking on a series of modernization processes, including of the Canadian Environmental Assessment Act, Fisheries Act, Navigable Waters Act and National Energy Board.

“This is a clear example of where the tarsands industry has been violating the existing legislation, even in its poor form,” Gray said. “I would expect that once it becomes clear that the facts around this case are not really able to be argued with that they would take some action.”

It will be a big deal whether the submission gets quashed or allowed. After all, the council has never refused to make the factual record public, meaning that we would be given a fascinating window into the argument made by Canada for or against acting on tailings leakage.

Gray said the factual record would help embarrass the government for inaction and encourage them to actually comply with their own legislation. Furthermore, it could be used in a legal case against the government if it refuses to act.

The Trudeau government has already indicated on multiple files it’s willing to break its promises. So we’ll have to wait and see. Plus, the re-negotiation of NAFTA itself will provide an additional window into their thought process.

What about the re-negotiation of NAFTA?

Well, the three countries don’t exactly like what they created with the Commission for Environmental Cooperation. It’s effectively embarrassing and inconvenient to them.

That’s why Cosbey would “bet a lot of money” that the ongoing re-negotiation of NAFTA will involve shutting down the Commission for Environmental Cooperation, terminating the North American Agreement on Environmental Cooperation and putting all provisions within NAFTA itself.

“I can guarantee you we’re not going to see anything as strong as this,” he said. “Guaranteed. We’re taking steps backwards here.”

And as you might have gathered, the current system isn’t even particularly strong. Compare it to, say, the framework in the European Union, which results in binding directives from the European Court of Justice to fall in line with the rules.

Recent regional trade agreements like CETA and TPP have involved “token nods” to the system that NAFTA currently uses, but are much weaker provisions in practice.

So this may be one of the last opportunities that a concerned individual or organization has the chance to challenge the country in this manner.

“It’s possible,” Gray concluded. “I don’t know if anyone knows the timelines of the NAFTA renegotiations. But I’m hopeful the Canadian government would be looking to improve environmental protections, not erode them.”

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The National Energy Board (NEB) is a “captured regulator” that has “lost touch with what it means to protect the public interest.”

That’s what Marc Eliesen — former head of BC Hydro, Ontario Hydro and Manitoba Hydro, and former deputy minister of energy in Ontario and Manitoba — told the NEB Modernization Expert Panel on Wednesday morning in Vancouver.

“The bottom line is that the board’s behaviour during the Trans Mountain review not only exposed the process as a farce, it exposed the board as a captured regulator,” he said to the five-member panel.

“Regulatory capture exists when a regulator ceases to be independent and objective.”

The Trans Mountain pipeline was reviewed with what many consider a heavily politicized NEB process, one that Trudeau had committed to changing prior to issuing a federal verdict on the project.

That process included what Eliesen describes as gutted environmental legislation, the removal of “essential features of a quasi-judicial inquiry” including the cross-examination of evidence and the limiting of participation of intervenors in such a way it “predetermined the outcome in favour of the pipeline proponent.”

Eugene Kung, staff counsel at West Coast Environmental Law, said in an interview with DeSmog Canada that the hearings for the project were the worst he’s seen in almost 10 years of practising regulatory law.

But that doesn’t seem to be an accident. Eliesen — who withdrew as an intervenor from the NEB review of the Trans Mountain project in 2014 due to the “fraudulent process” — argues the problems go far deeper than just the Trans Mountain review, predominantly linked to the “revolving door” between industry and the board.

“This ‘modernization’ is some spinmaster’s term,” he said. “It’s about public trust and the fact the NEB has lost this trust to the Canadian public.”

Move of NEB Head Office to Calgary Arguably Compromised Independence

In 1991, the NEB’s head office was moved to Calgary, and legislation was changed to require all permanent members to reside in Calgary.

It’s a decision that Eliesen says was completely unexpected and ultimately a political move by former Prime Minister Brian Mulroney; most other regulatory agencies are located in Ottawa to prevent being influenced by the industry in which they’re supposed to regulate (including finance regulators, even though Toronto is often considered Canada’s finance city).

If it was indeed politically driven, the plan seems to have worked.

More than two-thirds of the staff didn’t move to Calgary, and their positions were subsequently filled by former employees of the oil and gas sector. This has resulted in what some call a “revolving door” between the two; as Eliesen pointed out in his presentation, some former NEB chairpersons have been inducted into the Canadian Petroleum Hall of Fame.

“I’m not suggesting any nefarious activities,” he says. “It’s just that you adopt the headspace and the attitude of the energy industry of Alberta. When you have the legislation changed as well to ensure that all the permanent members reside in Calgary, then you have a major, major bias.”

It’s something he argues got worse under former prime minister Stephen Harper, who took full advantage of it in his final months (appointing many former industry veterans to key positions with the board, including Steven Kelley, who previously worked as a consultant for Kinder Morgan on the Trans Mountain project).

Even one of the five members of the NEB Modernization Expert Panel previously served as president of the Canadian Energy Pipeline Association. That same person, Brenda Kenny, signed a 2011 letter to key cabinet ministers petitioning for regulatory overhaul.

“She is in a real conflict of interest,” Eliesen says. “She’s the last person to be on a panel trying to evaluate how to bring back to the public trust to the National Energy Board.”

How to Fix the National Energy Board, Canada's Captured Regulator https://t.co/mHjDbb2iRj #cdnpoli #EnergyEast #TransMountain @james_m_wilt pic.twitter.com/8So7hzWUQ1

— DeSmog Canada (@DeSmogCanada) February 10, 2017

Many Structural Changes Required to Fully ‘Modernize’ the NEB

Kung, who also presented to the expert panel on Wednesday, expressed concerns about the relationship between the NEB and industry. He says there are many structural ways that such capture can be fixed.

Currently, the NEB receives a majority of its funding from industry, something Kung suggests should be addressed.

Its “very important role” in data collection and forecasting (such as the exhaustive “Canada’s Energy Futures” reports) don’t currently consider climate commitments such as the Paris Agreement, with the latest NEB report imagining a “business-as-usual” world that features an increase of four to six degrees Celsius in average global temperatures. That’s another thing that Kung says needs to change in the modernization.

Patrick DeRochie — climate and energy program manager at Environmental Defence — agrees, arguing that the NEB needs to better align climate and energy policy: “It’s not there right now. With this energy transformation we’re seeing for renewables right now, it’s not adequate. We need to bring that into the 21st century.”

(Conversely, Eliesen disagrees and suggests the NEB be solely a quasi-judicial agency and the energy information and advisory mandate be removed).

A key concern for Kung is also about NEB personnel. He acknowledges the board possesses technical expertise and that it’s tricky to find that kind of knowledge in people who haven’t worked in the industry at some point.

“But the way you can separate it structurally is making their role slightly different so they’re not making a decision, for example, about national or public interest,” he says. “Because that’s an impossible decision to make by a captured regulator.”

Proposed Solutions Include Replacing Board Members, Relocating Head Office

Eliesen proposed two major solutions to the review panel.

First, remove all current board members and replace them with people that reflect a broad range of background and expertise, not just the oil and gas industry. And secondly, relocate the NEB’s head office back to Ottawa.

These two decisions would create a firewall of sorts between industry and the board.

In addition, he suggested that environmental assessments be undertaken outside of the NEB, enforcement of pipeline safety be increased, and proponents be required by the NEB to provide alternative routes for pipelines.

Vancouver was only the third stop of 10 for the expert panel. The final “engagement session” in Montreal will conclude on March 29.  The panel is required to submit a report and recommendations to the Minister of Natural Resources around May 15.*

It’s a timeline that DeRochie suggests has made the process “really rushed,” noting that some of the 12 discussion papers weren’t even posted on the NEB Modernization Panel website by the time the first engagement sessions started in Saskatoon. However, DeRochie presented at the engagement session in Toronto on Feb. 1, and said that he went in “kind of cynical” but emerged feeling like they “really did seem like they wanted to engage us and fix this regulator.”

“It’s either get this right or face a bunch of political and legal challenges to every single energy project moving forward,” he says. “I think all stakeholders — industry, government, indigenous communities and ENGOs — want to avoid that.”

* Update: Feb 9, 2017. This article originally stated the panel report was due March 31, as stated on the National Energy Board's website. However, the date has been updated to May 15, as stated in the National Energy Board's terms of reference for the review panel.

Images: Natural Resources Minister Jim Carr. Photo: Canada 2020 via Flickr (CC BY-NC-ND 2.0)

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

Last year the Canadian government enjoyed a positive reception at the UN climate talks in Paris. After 10 years of climate inaction under a Conservative government, the international community anticipated the new Liberal government would mean good things for the nation’s climate governance.

But Canada’s contribution to the world’s first climate treaty remains “inadequate” according to a new report released by the Carbon Action Tracker in light of the climate talks.

The Paris Agreement, designed to limit global warming to as close to 1.5 degrees Celsius as possible, was signed in France last year and ratified, with incredible speed, less than one year later on November 4. Although a proud signatory of the agreement, Canada will not meet its climate targets, according to the new analysis.

Prime Minister Justin Trudeau adopted the same climate targets as the previous Stephen Harper government, pledging to reduce Canada’s emissions 30 per cent below 2005 levels by 2030.

“Under its current policies, Canada will miss both its 2020 pledge and its 2030 [Nationally Determined Contribution] targets by a wide margin,” Climate Action Tracker states.

The group estimates that based on current climate policies Canada’s emissions will increase by three to 18 per cent by 2030.

Last month Trudeau announced a national carbon tax that will price carbon at $10/tonne in 2018 and increase to $50/tonne by 2022.

But according to the analysis of four prominent environmental groups, Canada’s fossil fuel subsidies eliminate the supposed benefits of that carbon tax.

Canada Must Phase Out $3.3 Billion In Fossil Fuel Subsidies

“It makes no sense to put a price on carbon while continuing to give handouts to oil and gas companies,” Alex Doukas, senior campaigner and author with Oil Change International, told DeSmog Canada. 

“That's like pouring water on the fire with one hand while spraying gasoline on it with the other.” 

Doukas added Trudeau promised to eliminate fossil fuel subsidies when campaigning last year.

“Now his government has to deliver.”

Canada first committed to phasing out fossil fuel subsidies in 2009 along with other G20 nations. That commitment was later affirmed at a 2015 G7 meeting and named as a priority for Finance Minister Bill Morneau in a mandate letter from Trudeau.

“Unless Canada phases out massive subsidies to oil and gas companies, Trudeau’s carbon price will do little to encourage polluters to cut carbon emissions,” Dale Marshall, national program manager with Environmental Defence, said in Marrakech.

“The three billion dollars in annual subsidies could be put to much better use by investing in climate action, health care and other initiatives.”

In Marrakech, Minister of Environment and Climate Change Catherine McKenna participated in the Carbon Pricing Leadership Coalition, an international group pushing for more integrated market-based climate solutions.

“In light of Minister McKenna’s participation…we take the opportunity to remind Canada that leadership requires coherent fiscal policies,” Annie Bérubé, Director of Government Relations at Équiterre, said.

“Finance Minister Bill Morneau must announce a predictable phase-out of all remaining preferential tax treatment to the oil and gas sector starting in Budget 2017.”

Canada’s #ClimateAction Called ‘Inadequate’ at UN Climate Talks in #Marrakech https://t.co/KpTN378mXJ #cdnpoli @cathmckenna @JustinTrudeau

— DeSmog Canada (@DeSmogCanada) November 15, 2016

More Opportunity for Canadian Leadership at UN Climate Talks

She added there is some work to be done, however, to bridge the gap between Canada’s international climate commitments and decision-making domestically.

“This is a core question that Canada has to reconcile,” she said.

“Can we build a national climate plan that allows us to achieve the 2030 target with deeper reductions over time?”

Canada has come under harsh criticism recently for approving the Pacific Northwest LNG export terminal on the coast of B.C.  The LNG facility is estimated to be the largest single point source of emissions in Canada, adding the equivalent of 1.9 million cars to the roads.

Analysts have pointed out the approval of the LNG project is a serious obstacle to Canada meeting its climate commitments.

Flanagan said she sees an opportunity for Canada to really “do the math” on its climate targets.

“That’s really what this COP is about,” she said. “It’s about taking the rhetoric and turning it into plans that will drive the change we need to see.”

Image: COP22 signage in Marrakech, Morocco. Photo: Carol Linnitt/DeSmog Canada

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

Kinder Morgan’s Trans Mountain pipeline proposal cannot proceed without a serious reassessment of its impacts on climate change commitments, indigenous rights and marine mammal safety.

That was the conclusion of the “Report from the Ministerial Panel for the Trans Mountain Pipeline Expansion Project,” released to the public on Nov. 3 by the three members of the self-described “omissions panel” that was formed to make up for perceived flaws in the National Energy Board review process.

“Surprisingly, I think it did do its job,” says Patrick DeRochie, climate and energy program manager at Environmental Defence.

“It’s kind of the icing on the cake of a fatally flawed Kinder Morgan review process. It shows the social, environmental and economic rationale for approving this pipeline simply doesn’t exist. The only viable option coming from this report is the rejection of Kinder Morgan by the federal government.”

The report — produced by the trio of Kim Baird, Annette Trimbee and Tony Penikett — was the culmination of 44 public meetings conducted during the summer, which included 650 direct presentations and 35,259 responses to an associated online questionnaire.

It was published on the same day that Kinder Morgan Canada president Ian Anderson appeared to question climate change by stating: “I’ve read the science on both sides and don’t pretend to be smart enough to know which is right.”

Review Panel Criticized For Lack of Clear Mandate, Hastily Organized Meetings

Critics had suggested the “review of the review” lacked a clear mandate, repeating the flaws of the original NEB process.

Such alleged faults included a lack of clarity on how the cabinet would use the report, a failure to conduct proper outreach to key participants including municipal and First Nations leaders, a lack of proper note taking and an alleged conflict of interest due to Baird’s previous business relationship with Kinder Morgan.

“And yet, their report reinforced what we’ve been hearing from British Columbians about this project,” Sierra Club BC campaigns director Caitlyn Vernon says. “How do you do this in the face of First Nations opposition and the UN Declaration on the Rights of Indigenous Peoples. You don’t. How do you do this in the face of Canada’s climate change commitments? You don’t.”

Report Pointed Out Major Concerns About Climate Change, Spills, Killer Whales

The 58-page report, submitted on Nov. 1 to Minister of Natural Resources Jim Carr, outlined concerns about the potential impacts of the new pipeline on upstream greenhouse gas emissions, oil spills, reconciliation with indigenous peoples and the endangered southern resident killer whales; it noted that “as the panel moved west, opposition increased markedly.”

It concluded by posing six incisive questions to cabinet, including “can construction of a new Trans Mountain Pipeline be reconciled with Canada’s climate change commitments?” and “how might Cabinet square approval of the Trans Mountain Pipeline with its commitment to reconciliation with First Nations and to the UNDRIP principles of ‘free, prior, and informed consent’?”

“The part that gave me real delight was the six questions that they framed, and seeing that, rather than attempting to gloss over or evade the issues, they addressed them square on,” says Karen Wristen, executive director of Living Oceans.

Ministerial Panel on #KinderMorgan Pipeline Actually Nails It https://t.co/GMcRh9LW7f #bcpoli #cdnpoli #Burnaby #TankerBan

— DeSmog Canada (@DeSmogCanada) November 7, 2016

Trudeau Promised Review of Environmental Assessments Would Include Kinder Morgan

During the federal election, Prime Minister Justin Trudeau said that the “modernization” of the National Energy Board and Canadian Environmental Assessment Agency “applies to existing projects, existing pipelines as well.” In addition, the Liberal platform pledged to “restore robust oversight and thorough environmental assessments of areas under federal jurisdiction.”

Yet the National Energy Board recommended a conditional approval of the Trans Mountain pipeline — which would triple the amount of oil flowing to Vancouver — relying on the same processes that were implemented by former Prime Minister Stephen Harper and the Conservative Party.

That review didn’t include an assessment of upstream greenhouse emissions associated with the new pipeline or impacts on marine environments, and denied intervenor or commenter status to over 460 people. Serious concerns have been raised by indigenous communities including Tsleil-Waututh Nation and Squamish Nation over the quality and scope of consultations.

The review panel was formed as an ad-hoc substitute.

Vernon emphasizes the panel “did not remedy the flaws of the original NEB process.”

‘If Cabinet Takes the Questions Seriously, There’s No Way This Pipeline Can Be Built.’

The federal cabinet must issue its final verdict on the project by Dec. 19. Recent reports indicate Trudeau is leaning toward an approval.

Carr has suggested the new review panel will lend “credibility” to the environmental assessment process. However, there’s no clear understanding of if and how the report will be used by cabinet as it isn’t legally binding.

DeRochie says the review asked “key questions about the fundamental future of this country [that] have not been answered yet,” noting that his organization has been calling for a suspension of the process until the National Energy Board and Canadian Environmental Assessment Act have been “modernized” as promised.

He also emphasizes the conversation isn’t just about British Columbia, but pertains to national issues around credible review processes, commitments to reconciliation and the future of pipelines in Canada.

It appears that this review panel’s report will be the final assessment conducted prior to cabinet’s verdict. Many agree it poses questions that undermine the possibility of the Trans Mountain pipeline in its current form.

“If cabinet doesn’t take these questions seriously, approving this project would be abandoning any commitment to climate action, abandoning a commitment to reconciliation with indigenous peoples, imposing a death sentence on the endangered killer whale and inviting the economic and ecological disaster,” Vernon says.

“If cabinet takes the questions seriously, there’s no way this pipeline can be built.”

Image: Justin Trudeau via Prime Minister’s Photo Gallery

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

Thicker insulation may not be the first thing one imagines as a top solution to climate change (heck, it probably doesn’t even crack the top five list).

But a new collaboration of Canadian environmental organizations want to change that via the development of a national energy efficiency strategy that focuses on constructing and retrofitting buildings.

Earlier this week an open letter was sent to Environment and Climate Change Minister Catherine McKenna and Natural Resources Minister Jim Carr, signed by 11 groups including the Pembina Institute, Canadian Energy Efficiency Alliance, the Toronto Atmospheric Fund, Environmental Defence and Architecture Canada.

New Standards Requested

The requests, all tied to meeting the 2030 emissions targets recently set in Paris, are certainly lofty.

Revamp the national building code. Conduct deep energy retrofits in the form of energy reduction (between 25 and 50 per cent) of 30 per cent of buildings. Create a vast system of rebates, financing and loan guarantees.

It doesn’t stop there: the collective also called for the proliferation of universal standards for appliances, making data more publicly available and understandable via consumer feedback systems, and ensuring that buildings owned by the federal government lead by example with retrofits of their own.

All up, there are dozens of recommendations. They’re not kidding around.

“Despite the complexity of the industry, it’s one of the easiest things to do,” says Tom-Pierre Frappé-Sénéclauze, a senior advisor for the Pembina Institute who specializes in building efficiency.

“We know how to do it, it puts money back into the pocket of homeowners and businessowners. And that money, because it tends to be redeployed locally, means the economic benefits of energy efficiency are important.”

Half of Toronto’s Emissions Come From Home and Buildings

To be sure, many organizations concerned with energy efficiency have long pushed for such goals. After all, a quarter of national emissions come from energy consumption in buildings, making it a very significant source of carbon dioxide. In Toronto, half the emissions come from homes and buildings; in Calgary, that number is pegged at 55 per cent.

But this particular combo of forces is notable, especially given the moves that both provincial and federal governments are attempting to make to meet emissions targets.

“The technology is ready,” says Frappé-Sénéclauze. “We have low-energy buildings from residential homes built to passive house standards — or net-zero even — all the way to more complex buildings to LEED certification and Living Building Challenge.

“We have a fair number of high-performance buildings: it’s just a question of bringing that savoir faire and that technology to the bulk of buildings worth building,” he says.

11 Organizations Call on Federal Government For New Energy Efficiency Standards https://t.co/GQS0mGowVS #bcpoli #cdnpoli

— DeSmog Canada (@DeSmogCanada) August 12, 2016

Incentives Key to Retrofits

As indicated by Frappé-Sénéclauze, there are two distinct issues at play: constructing new buildings and retrofitting existing stock.

The latter is arguably the more difficult of the duo.

Bryan Purcell — director of policy at the Toronto Atmospheric Fund, an arm-length agency of the City of Toronto — says the municipality has a limited set of tools to address it, as existing buildings are privately owned and can’t legally require owners to act.

However, Purcell notes that governments can offer financial incentives and educational tools in an attempt to encourage action: for instance, energy audits of homes can be subsidized by governments, something the Alberta NDP is currently in the process of implementing.

“For most building owners — whether it’s a homeowner or a larger building — energy consumption and climate change is not a primary motivation for their actions,” he says.

“It’s very hard to get people to make the leap to all the work involved, putting aside the expense: just the effort to decide to do major improvements to home or building and plan out what those are, and procure and execute them.”

Federal Government Has Power to Standardize Many Household Appliances

Purcell says it’s a matter of figuring out what might motivate a resident or business owner: cost savings, climate change, corporate social responsibility or something else. And then acting on it.

Often the solution requires funding to counteract the high upfront costs and long paybacks required for deep efficiencies.

“The federal government’s really got the financial resources to do that more than any other level of government,” Purcell says.

There are other ways to approach the issue, too.

Frappé-Sénéclauze says that demands of household appliances, known in the industry as “plug loads,” can be addressed via universal standards. There could be an expectation, for instance, that every new fridge is 10 to 15 per cent more efficient than the last model.

For while it’s not something we probably spend much time thinking about, the federal government has been involved with equipment standards for almost every appliance in our home or workplace: boilers, air conditioning units, lights, fans, fridges and TVs.

There was a five- or six-year delay on that front under the previous federal government, Purcell says. That can change very quickly, he says, harnessing tools like the EnerGuide Rating System and Energy Star Portfolio Manager to ensure a base level of efficiency.

Information plays a great part of this. In many cases, it can be tricky for owners and other stakeholders just to get reliable data on everything from how much energy they use, to how that translates into carbon dioxide, to how much potential they have to reduce emissions. And thus, how to choose certain appliances or retrofits for their buildings.

That’s where a “national vision” comes in.

‘We Need All Of This To Happen Faster Than What We’ve Seen Before’

But such a vision must be accompanied by action on new buildings. Because whether municipalities choose to continue sprawling or rezone for infills, there will be new buildings as populations continue to rise.

Codes are ultimately interpreted by and written by the provinces. But the guiding material is written up by the federal government.

In some cases, the province can even extended a “stretch code” to allow local governments to mandate more energy efficiency than the base code. The Toronto Atmospheric Fund is currently in discussion with the city about a timeline for when it could drive the local standards to net zero (an agreement will likely come out in early 2017, Purcell says).

A move that requires new buildings to have nearly energy by 2030 would almost certainly need to come from Ottawa, representing a single, large push that helps proliferate a standard of passive homes and zero energy buildings.

“We’ve had energy efficiency improvements over the last few codes,” Frappé-Sénéclauze says. “It’s not something that’s new. What’s new is the pace of change. We need all of this to happen faster than what we’ve seen before, and that’s going to stress the system.”

There’s some pushback each time there’s a code change, he says. Part of it’s because many construction companies are small entities: in B.C., nine of every 10 have fewer than ten employees. Retraining may be required. Rapid change can be undesirable, to say the least.

Industry Can’t Be Blindsided

That’s why there has to be plenty of notice given prior to such a change, Frappé-Sénéclauze says. What annoys industry more than anything is “to be blindsided and to have things happen at the last minute in a rushed manner.”

Because it’s not just about the actual construction of the home or building. The industry is massively distributed and intensely complex, meaning that changing one thing (for instance, the standard of insulation or doors used) will send ripples down the chain of contractors and manufacturers.

“The supply chain gets ready if there’s clarity of where the codes are going,” he says. “And if the supply chain is there, the cost of components decrease and the cost of the improvement decreases. A lot of this is managing just the stress of change.”

Another key thing to remember is that codes were originally designed as representing the worst possible building that can be built, akin to the minimum wage of construction.

Frappé-Sénéclauze emphasizes they were never meant to drive innovation — just to safeguard against the potential dangers around accessibility, safety and fire protection.

Improving Energy Efficiency a Win-Win

In other words, a new national code won’t save the day. It has to be accompanied by “programs to support the leaders and a code to ratchet up to catch the laggards.”

And there are dozens of those kicking around. An Alberta-focused report published by the Pembina Institute in 2014 provided a long list of practices including mandatory building energy labelling, energy audit grants, energy efficiency financing paid via bills, home energy reports, real-time energy feedback and efficiency rebates.

Other jurisdictions provide inspiration too, with France working on energy positive buildings that include on-site generation. Europe’s aiming for nearly zero energy by 2020, Frappé-Sénéclauze says, with California and Washington State representing similar goals.

After all, Canada is at least in the preliminary phases of making many major moves on the climate change front. It would seem a bit of a waste to eventually generate so much electricity by solar, or wind, or geothermal, or biomass for it to only leak out of buildings that aren’t properly insulated or wasted by appliances that don’t feature state-of-the-art efficiency standards.

“I’m sure whatever they do won’t be perfect: there’s always room for improvement,” says Purcell, noting that other climate mitigation issues can result in a lot more divisive regional equity issues.

“But this is something the federal government can act on that benefits people in all areas of the country equally and can generate employment and economic benefits. There’s really no-one who loses out when we improve energy efficiency in buildings.”

Image: Earth Day green building tour in Vancouver. Photo: Pembina Institute via Flickr

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After decades of insufficient or insincere attempts to address emissions from Canada’s fastest growing source of climate pollution, a new government-sponsored oilsands advisory group may help resolve political gridlock surrounding the nation’s most contentious natural resource by bringing together industry, environmental and indigenous stakeholders.

The Oil Sands Advisory Group (OSAG) is tasked with helping the province implement a new emissions cap for the oilsands that limits greenhouse gas output to 100 megatonnes per year and will also advise on reducing the overall environmental impacts of production, according to a government statement released Wednesday.

According to Tzeporah Berman, the group's co-chair and a well-known environmentalist, the composition of the advisory group represents a notable shift in the political landscape.

“Let's be clear: under previous governments environmental leaders had very little access and were outright ridiculed by many ministers and departments,” Berman told DeSmog Canada. “First Nations leaders were simply shut out. Climate change was denied.”

“A lot has changed in a year in Alberta and it is opening up new conversations.”

Alberta announced new climate legislation last fall that for the first time in the province’s history put an end to the notion of endless oilsands growth. Upon release of the new plan, Premier Rachel Notley, flanked by leaders of industry, prominent environmental organizations and local First Nations, said, “This is the day we stop denying this is an issue, and this is the day we do our part.”

The climate plan marked not only a new era of climate leadership (it was called a “pigs fly” situation) but a fresh approach to resolving the political gridlock that for years has pitted climate advocates and environmental groups against a seemingly entangled block of government and industry.

Berman, who stood with Notley during the climate plan announcement in November, said she’s optimistic that, working together, these strange bedfellows can make real change to a stagnant climate leadership environment and “move past the polarization of the oilsands.”

“The fact that the government just appointed people like me, who have been fierce critics shows its resolve to face and solve the hard stuff,” she said. “So instead of trading opinions through the media, those of us who have been 'adversaries' will be sitting down with a common purpose and a shared mandate.”

Dave Collyer, group co-chair and former president of Canadian Association of Petroleum Producers, echoed the sentiment: “It is the diversity of this group and its problem-solving focus on emissions leadership, local environmental performance and innovation that will help de-escalate conflict and contribute to the ongoing success of this important industry.”

According to the Conference Board of Canada, Canada ranks among the worst in the world for per capita greenhouse gas emissions, following the U.S. and Australia. Although Alberta accounts for only 11 per cent of the population, it contributed 36 per cent of national emissions in 2013.

The oilsands are Canada’s fastest growing source of greenhouse gas emissions and those emissions are projected to grow enough to nullify emissions reductions in other sectors and jurisdictions across the country.

“The simple fact is Alberta can’t let its emissions grow without limit,” energy minister Margaret McCuaig-Boyd said in a statement, “but we can grow our economy and our market by showing leadership, including reducing our carbon output per barrel.”

Simon Dyer, member of the new advisory group and director of the Pembina Institute in Alberta, said Alberta is finally treating oilsands environmental management and climate change “as they deserve to be treated: as serious public policy issues that need big change.” 

“I’ve been working on these issues for more than a decade and it was always traditionally framed as just a communications, PR air war,” Dyer told DeSmog Canada, adding the change in government engagement is “very welcome.”

There are still lots of issues in the oilsands that need to be resolved, Dyer said, “but they are only going to be resolved by a lot of people talking about them and the government making substantive changes.”

Alberta is playing catch up when it comes to environmental management and embracing renewable energy, Dyer said.

Earlier this week the government announced new incentives for enhanced oil and gas programs, something many in the environmental community were distressed to see. Equally distressing for some climate advocates is the province’s staunch support of building new oil export pipelines.

“I think what the government is trying to do is allay concerns they are anti-oil and gas and at the same time recognizing that a new economy is going to have to be based on renewables so we have to expand the clean economy,” Dyer said. “That’s the political reality in Alberta. It’s unfortunate but we’re behind and playing catch up.”

“That something like moving to 30 per cent renewables could be considered risky or out of step with the mainstream just shows how far behind Alberta has been and this government has to make big strides going forward,” Dyer added. “But they have to bring the rest of Alberta with them.”

#Alberta Brings Former Adversaries Together for New #Oilsands Advisory Group https://t.co/zzYjqLfAtJ #ableg #cdnpoli pic.twitter.com/AXGeaio0HG

— DeSmog Canada (@DeSmogCanada) July 18, 2016

For years the oilsands have faced growing civil society opposition, especially with respect to expansion, impacts on First Nations treaty rights and the construction of new or expanded oilsands export pipelines.

Adam Scott from Oil Change International said his organization is encouraged the new body  “can help start a real discussion” about Alberta’s energy resources.

Although he cautions, “there is no acceptable climate scenario where Alberta would be allowed to grow the tar sands and build new pipelines like Kinder Morgan and Energy East.”

Tim Gray, one of the 18 members of the advisory group and executive director of Environmental Defence, said Alberta — as an oil-producing jurisdiction that has an interest in building new pipelines — faces some significant challenges.

“Industry — and the Alberta government to a lesser degree — has been adamant that they want to build more pipelines and they’ve tied the completion of those to a lot of economic promises and it’s not clear if those will be achieved or not even if they did build a pipeline."

Gray said he remains unconvinced pipelines are the best strategy for Alberta and that more work needs to be done to determine if any need for new pipelines will remain once the cap put on emissions is put into place.

He said his organization remains opposed to pipeline projects like Energy East.

But, he added, he is encouraged such questions are being put to the diverse group of people that comprise the oilsands advisory group.

“I think the fact that you have organizations around the table that have very divergent views on the necessity of pipelines and what is the best way forward for an oil jurisdiction that is interesting and will make for challenging circumstances for the development of recommendations,” he told DeSmog Canada.

“But I think it shows a level of maturity by the government that they’re willing to have people with those divergent opinions and trying to work through them and bring data to bear.”

Berman said the group will begin the immediate work of creating new rules to keep oilsands emissions under the 100 megatonne cap.

“This is one of the first times in the world that an oil jurisdiction has voluntarily set a limit and we are breaking new ground,” Berman said. 

“Our goal is recommendations in the fall and then we will move on to designing reviews for cumulative impacts on water, air and biodiversity.”

“Within two years we will have made recommendations on all of those issues plus developed proposals for developing a long-term pathway on climate leadership between now and 2050.” 

For a province that has consistently failed to implement meaningful climate regulations on the oil and gas sector, the task at hand is enormous — but it's encouraging to see Alberta's willingness to bring together strange bedfellows and tackle the thorny questions head on.

Image: Suncor/Flickr

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An article published last week in the National Post that claims a “secret” deal was struck between oil companies and environmentalists has ruffled many feathers — from corporate big wigs in Calgary to environmental activists on the West Coast.

According to Claudia Cattaneo’s story, Alberta’s climate change plan — which introduced a carbon tax, phased out coal-fired electricity and put a cap on oilsands emissions — was “the product of secret negotiations between four top oilsands companies and four environmental organizations.”

I’m not sure how secret any of that was given that all of those players could clearly be seen on stage with Alberta Premier Rachel Notley when she announced the plan, but the story goes on to state: “The companies agreed to the cap in exchange for the environmental groups backing down on opposition to oil export pipelines, but the deal left other players on the sidelines, and that has created a deep division in Canada’s oil and gas sector.”

The remainder of the story goes into how various oil companies have their knickers in a twist over the deal.  You’d think environmentalists would be dancing in the streets about that, but no — it’s actually hard to say who’s more outraged: environmentalists, who bristle at the idea of a secret deal and who don’t think the agreement is strong enough, or oil companies, who don’t think the new regulations will help them gain the market access they’re so desperately seeking.

Let’s just all hold our horses for a second.

First off, let’s look at the source. Cattaneo has spewed quite a bit of industry drivel over the years and her interpretation of Canada’s energy politics leaves much to be desired. Has she exhibited much understanding of how social movements actually work? Nope.

Secondly, was there a deal to stop opposition to oil export pipelines? There were at least five environmental groups on stage for the announcement: Forest Ethics, the Pembina Institute, Clean Energy Canada, Equiterre and Environmental Defence.

Forest Ethics has publicly stated that its campaign against Kinder Morgan’s Trans Mountain pipeline won’t change.

Environmental Defence’s executive director Tim Gray told DeSmog Canada that its work on pipeline issues from a climate, water, biodiversity and community impact perspective will continue. The organization is now looking to the feds for a revised review process for pipelines, which includes a climate test that takes into account all infrastructure, including trains, and respects Alberta’s cap on oilsands emissions.

The Pembina Institute’s executive director Ed Whittingham told DeSmog Canada that Pembina’s oilsands advocacy work will continue. Pembina’s advocacy around pipelines has always been out of concern for upstream impacts — not surprising for a group founded in Alberta, on the heels of a deadly sour gas well blowout.  While many of Pembina’s climate-related concerns have been addressed by Alberta’s climate plan, “lots of air, land and water concerns remain,” Whittingham said.

Clean Energy Canada never campaigned against pipelines in the first place. And Equiterre couldn’t be reached, but I’d hazard a guess they’re in the same boat as the others.

So, sounds to me as though there was no deal of the sort that Cattaneo described.

Thirdly, even if there was a deal, a deal with four environmental groups wouldn’t be worth the hypothetical notepad it was jotted on given the breadth of opposition to new oil pipelines in this country — from municipalities like Vancouver and Burnaby to First Nations to grassroots activists to the umpteen environmental groups that weren’t on that stage.

“People who think climate policy in Alberta will ‘buy market access’ through B.C. don’t understand concerns around Indigenous rights, tanker traffic, oil spills or the grossly unequal distribution of economic risk and benefit,” said Kai Nagata, energy and democracy director at B.C.-based Dogwood Initiative.

It’s not helping the industry’s case that a landmark study released on Tuesday by the U.S. National Academy of Sciences confirms that diluted bitumen, such as that carried by Kinder Morgan’s Trans Mountain pipeline, sinks in water if not cleaned up immediately, making for a nightmare scenario.

The study, Spills of Diluted Bitumen from Pipelines: A Comparative Study of Environmental Fate, Effects, and Response, concluded that diluted bitumen poses unique risks compared to other blends of crude oil.

Which brings me back to my point: the pipeline deal-breaker in B.C. has always been the risk of oil spills. Alberta’s action on climate change doesn’t move the needle on that.

Now, to the climate plan itself. Many environmentalists aren’t terribly impressed with it. Take this revealing infographic by Barry Saxifrage, which shows how Alberta’s emissions will continue to grow until 2030. (Canada has promised to reduce emissions 30 per cent from 2005 levels by 2030.)

However, we must take into consideration that Alberta has already issued permits for another six million barrels a day of oilsands production. The new cap means that, at current emissions levels, three million barrels of those barrels will stay in the ground. That’s a seriously bold move in a province that has an economy 70 per cent based on oil — and that has already seen 40,000 layoffs in the energy industry this year.

All of the enviro grousing of late has reminded me of Rebecca Solnit’s stellar piece in The Guardian a few years back, written to her dismal allies on the U.S. left.

“If I gave you a pony, you would not only be furious that not everyone has a pony, but you would pick on the pony for not being radical enough until it wept big, sad, hot pony tears,” Solnit wrote. “Can you imagine how far the civil rights movement would have gotten, had it been run entirely by complainers for whom nothing was ever good enough? To hell with integrating the Montgomery public transit system when the problem was so much larger!”

Environmentalists are fighting the richest industry in the world — an industry that has spent millions of dollars to confuse the public about climate change science. They are finally starting to see some victories. The climate change plan enacted in Alberta was unimaginable a year ago. It has the “100 per cent” support of Athabasca Chipewyan First Nation Chief Allan Adam.

If we want any policy to stick — not to be struck down like former Alberta Premier Ed Stelmach’s royalty review — it needs to have broad support. Part of the job of the environmental movement should be to help build that support.

To quote Solnit again: “Being different (from the radical right) means celebrating what you have in common with potential allies, not punishing them for often-minor differences. It means developing a more complex understanding of the matters under consideration than the cartoonish black and white that both left and the right tend to fall back on.”

The fact industry and environmental leaders met informally over the past year, found some common ground and ended up standing on stage together to announce a major step forward on Alberta climate policy is a great thing. (And saying that does not mean I don’t acknowledge that while great, it’s not sufficient for Alberta to do its fair share to keep the planet from warming more than two degrees.)

As Tzeporah Berman, adjunct professor in the faculty of environmental studies at York University, wrote recently: “To say a policy is great does not mean there is not more work to be done.”

Without further ado, may the pipeline battles continue.

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A new report released Thursday by the Ontario Energy Board finds the risks of TransCanada’s Energy East pipeline, destined to carry Alberta oilsands crude to eastern refineries and export facilities, outweigh the project’s benefits.

The board’s vice-president, Peter Fraser, said the report, prepared at the request of Ontario Minister of Energy Bob Chiarelli, finds “an imbalance between the economic and environmental risks of the project and the expect benefits for Ontarians.”

The Energy East pipeline, projected to transport 1.1 million barrels of oil per day, is the continent’s largest proposed pipeline, outsizing the company’s controversial Keystone XL pipeline, which has become a political boondoggle in the U.S. in recent years due to growing concerns over oil spills, private property and climate.

The Ontario Energy Board traveled to communities along the pipeline route to gauge public sentiment about the project and, according to the report, found fears over potential water pollution running high throughout the province.

“The top concern expressed was the risk of an oil spill as the pipeline runs new or across many waterways,” Fraser said. “Our advice is that for the existing pipeline, when it is too close to environmentally sensitive areas, it should be rerouted unless it can be justified by TransCanada as necessary.”

The report states concerns over water were “routinely expressed” at community meetings and mentions a First Nations elder who put the question to the board by saying, “Would you put something in your mother’s blood that would poison her? Your mother wouldn’t be able to hold you then.”

The report recommends TransCanada “pay particular attention to protecting Nipigon Lake, Trout Lake, the Ottawa River, the Rideau River, the Oxfard-Marsh Aquifer, the Nepean Aquifer, and other areas where there is elevated public concern.”

The report stated the Crown's "duty to consult" with Canada's First Nations was high on the minds of many community members and said it considers this responsibility "a very important issue" when considering the fate of the pipeline. The final decision-making authority over the pipeline rests with the federal government, as does the duty to consult.

The board also noted Ontario’s own requirement that pipeline projects have the “highest available technical standards” for protection of the public and the environment.

Yet the board did not find TransCanada met those reqirements.

“We cannot state that the project meets the highest available technical standards, as the proponent, TransCanada Pipelines Ltd, has not yet filed a complete application,” Chair and CEO of the board, Rosemarie Leclair, said.

The board said construction of the pipeline, which involves converting and redirecting a pre-existing natural gas pipeline as well as constructing a new extended portion of the line, could create as many as 114,000 full-time equivalent jobs and add $12 to $19 billion to the province’s GDP.

But the report also noted the costs associated with an oil spill “could easily surpass $1 billion.” As a result, TransCanada “needs to demonstrate that, in the event of a spill, the amount of crude oil that could be released will be as low as reasonably possible,” the report’s authors write.

The authors recommend an examination of TransCanada’s safety record during the National Energy Board’s Energy East hearings.

The report also finds the project will take an existing natural gas line out of operation, potentially driving up gas prices. The report states: “We are concerned that, even with the new natural gas pipeline that TransCanada is proposing to build in eastern Ontario, Energy East will reduce the supply and increase the price of natural gas for consumers in that region.”

In February the Ontario Energy Board released a report on Energy East’s climate impacts, prepared by Navius Research, that was widely criticized for downplaying the pipeline’s influence on oilsands expansion and the country’s rising greenhouse gas emissions.

Adam Scott from Environmental Defence said the board’s recent report “raises serious concerns about Energy East.”

Scott said the report makes clear the environmental risks of the pipeline are high, especially for a “risky project” that “does not have the support of communities along the pipeline route in Ontario.”

“Many participants also raised concerns that Energy East would directly facilitate the expansion of the Alberta tar sands, increasing Canada’s greenhouse gas emissions. This would make Canada an irresponsible player in a world where more and more countries are working hard to reduce their impact on the climate.”

He added the board’s analysis of the project’s climate impacts was “disappointing” and “based on outdated and inaccurate information.”

A report by the Pembina Institute, an Alberta-based energy think tank, found the oil needed to fill the Energy East pipeline would account for an additional 30 to 32 million tonnes of carbon emissions release into the atmosphere each year.

Pembina estimated that’s the equivalent of adding more than seven million cars to Canada’s roads and is “higher than the total current provincial emissions of five provinces.”

The board discussed Pembina’s findings in its recent report, saying “climate change was one of the key issues mentioned by people when they discussed the impacts of Energy East,” adding people felt addressing the impacts of the project without discussing climate change was inadequate.

Image Credit: TransCanada via Youtube

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The release of a University of Victoria study calling for updates to Canadian charitable law created quite a stir last week.

The study, prepared for DeSmog Canada, was covered by the Toronto Star, Vancouver Sun, Victoria Times Colonist, Canadian Press, Macleans, The Tyee, Yahoo! News and CFAX.

The report called for the Canada Revenue Agency (CRA) to clarify rules around “political activities” — defined as any activity that seeks to change, oppose or retain laws or policies — and to provide a more generous limit on allowable policy advocacy in line with other common law jurisdictions such as Australia and New Zealand. It also called for the creation of a politically independent charities commission to remove the potential for political interference in audits.

The findings were raised in the House of Commons by Victoria NDP MP Murray Rankin, who stated the report “analyzes the alarming lack of clarity in the rules governing political activities for charities.”

Tim Gray, executive director of Environmental Defence, said the recommendations put “what’s going on in Canada in the context of what’s going on in other common law and western countries … It gives a sense of how far Canada is behind on these things.”

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Environmental Defence was one of 18 Canadian charities that called on the country’s politicians to enhance the ability for charities to engage in public policy debates earlier this month.

“The lack of a level playing field between business and citizens around public policy is particularly evident in the debate around climate and tar sands,” Gray told DeSmog Canada. “There’s massive spending going on by the oil sector to influence public policy and every dollar they spend on lobbyists in Ottawa or on television ads, they deduct from their gross income and therefore reduce the income tax that they pay to build roads and run hospitals.”[view:in_this_series=block_1]

Citizens who donate money to a charity only receive a 17 per cent tax benefit and charities are limited to spending 10 per cent of their resources on policy advocacy work, described as “political activity” by the CRA.

Fifity-two charities have been audited for their “political activities” under a $13.4 million audit program launched by the federal government in the 2012 budget.

“It’s already unfair and the rhetoric that’s out there right now is to say that that level of unfairness should be enhanced,” Gray said. “It would be a huge move to favouring involvement by corporations in public policy at the expense of citizens.”

Gray also said citizens are confused by the current talk around “political activities,” which many assume to mean “partisan activities,” which charities are banned from taking part in.

Bill Schaper, director of public policy and community engagement for Imagine Canada — which advocates for the charitable sector — said his group has been hearing more and more about re-thinking how we define charity over the last couple of years.

“It’s something that’s been percolating,” Schaper told DeSmog Canada.

But he also noted that there are risks associated with opening up charitable law for major changes. National Post columnist Andrew Coyne, for instance, has argued that we should get rid of charitable status altogether.

“As much as the grey zones are causing issues right now, sometimes grey zones are better than too much clarity because you might not like the clarity you get,” Schaper said.  

He noted that the charitable sector can do a better job of educating itself in terms of what constitutes “political activity” and said there would need to be much more discussion before Imagine Canada would push for specific changes to the law.

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A report released today by the University of Victoria’s Environmental Law Centre calls for sweeping reform of Canadian charitable law in line with other jurisdictions such as the U.S., Australia, New Zealand and England.

Current rules around “political activity” — defined by the Canada Revenue Agency (CRA) as any activity that seeks to change, oppose or retain laws or policies — are confusing and create an “intolerable state of uncertainty,” the report says.

“This has created a confused and anxious charitable sector and detracts from them carrying out their important work,” Calvin Sandborn, legal director of the Environmental Law Centre, said.

The report — prepared for DeSmog Canada — comes as 52 charities are being targeted in a $13.4 million audit program launched by the federal government in 2012 to determine whether any are violating a rule that limits spending on political activities to 10 per cent of resources. Those charities include Environmental Defence, the David Suzuki Foundation, Canada Without Poverty, Ecology Action Centre and Equiterre.

Australia and New Zealand, also common law jurisdictions, have modernized their laws in recent years to allow charities to conduct more policy advocacy in carrying out their missions.

The report, Tax Audits of Environmental Groups: The Pressing Need for Law Reform, calls for Canada to establish clearer rules about what constitutes “political activity” and provide a more generous limit on allowable “political activity.”

Canada’s Charities Law Urgently Needs Update: New @ELC_UVic report http://t.co/EUj828Va94 #UpdateCharitiesLaw #cdnpoli

— DeSmog Canada (@DeSmogCanada) March 25, 2015

“U.S. charity regulation is superior to current Canadian law because it is less vague and more respectful of the value that charities bring to public policy debates,” the report states.

Many European countries place no limit at all on a charity’s political activities.

Earlier this month, 18 Canadian charities called on the country’s politicians to enhance the ability for charities to engage in public policy debates.

“Our society has evolved and our legislation hasn’t,” said Eric Hebert Daly, executive director of the Canadian Parks and Wilderness Society, a group that signed on to the letter.

The new University of Victoria report calls on Canada to modernize the definition of what qualifies as charitable to rectify instances such as the CRA’s ruling that Oxfam can not have a charitable goal of “prevention of poverty.”

“In modern society the law should recognize that a poverty-relief organization can often relieve poverty more effectively by lobbying for affordable housing laws than by operating a soup kitchen,” the report says.

In October 2014, the Broadbent Institute released a report, which raised questions about whether the recent audits have been targeted at charities critical of the Harper government. The report said several right-leaning charities are reporting zero “political” activity while engaging in work that appears to meet the CRA’s definition.

There is a direct structural chain of command from the Minister of National Revenue to the charities directorate (which audits charities), the University of Victoria report notes before calling for the removal of any potential for political interference by establishing a politically independent Charities Commission like the one in England and Wales.

“Regardless of whether the audits are targeted or not, an obvious way to address this issue would be to reform the law to eliminate the potential for political control over CRA audits,” the report reads.  “This has been done in other jurisdictions.”

“The perception that audits may be targeted at charities critical of government policies creates a chilling effect,” the report says — adding that with such vague rules, charities can end up spending an “inordinate amount of energy and resources protecting themselves from an audit.”

The report also notes the contrasting treatment of business and charities under the Income Tax Act:

Since businesses can deduct advertising expenses from their income, they can lobby the public through advertising without any imposed statutory restrictions. A recent example has been the omnipresence of the multimillion-dollar [Enbridge] Northern Gateway radio, television, internet and newspaper ad campaign favouring the project. All of these advertisements would presumably be tax deductible and therefore subsidized by general taxpayers.

In contrast to companies’ tax-deductible political advertising campaigns, charities must carefully ensure that all activities of a political nature are kept within the 10 per cent limit. This contrasting treatment of business and charities under the Income Tax Act has the effect of encouraging businesses to take political action in support of commercial and private interests — while hindering the counterbalancing efforts of charities working to protect public interests.

The report provides the example of cigarette companies fighting smoking laws to defend profits while cancer societies advocated smoking laws for the public good (to prevent cancer). The “political activities” of the cigarette companies would have been tax deductible, whereas the charities advocating tougher smoking laws would have had to follow the ten per cent rule.

“This impairment of charities’ pursuit of the public interest has been magnified by the recent spate of audits and their repercussions on the charitable sector,” the report says.

Policy advocacy by Canadian charities has resulted in measures addressing acid rain, regulations on smoking, laws against drunk driving and regulations on toxic chemicals.

Canadian charities and non-profit organizations account for more than eight per cent of Canada’s GDP. As of the end of 2013, there were more than 86,000 registered charities in Canada.

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This is a guest post by Tim Gray, executive director of Environmental Defence. It originally appeared on the Toronto Star.

It was troubling last week when Liberal Leader Justin Trudeau seemed to suggest that provinces could just do their own thing on climate action without much federal involvement other than hand holding. Government action addressing climate change is evolving quickly at the provincial level but that does not absolve the federal government of its responsibility to set a level playing field and spur action.

It would have been great had the federal government implemented a pan-Canadian climate change plan eight years ago — when it promised to. Or better yet 13 years ago, when the Canadian government ratified the Kyoto Protocol. But it’s not too late for the federal government to act, especially given the big advantages to doing so: fairness and effectiveness.

To ensure that carbon pollution from all sources and all provinces decreases over time, a multi-pronged approach is needed. To make such an approach coherent and effective will require the federal government to act in areas where it has jurisdiction and to set common standards for initiatives undertaken at the provincial level.

The federal role should ensure fairness, so that there is a level playing field for all sectors and all provinces. Allowing any sector to avoid reducing its carbon pollution will undermine the final result and the willingness of other sectors to do their fair share.

An effective climate change plan would address all the major sources of carbon pollution, including industry (manufacturing, oil and gas, and others), electricity, transportation, buildings (commercial and residential), agriculture, and waste. Carbon emissions from some of these sectors, like those from oil and gas, are increasing while those from other sectors, like electricity, are declining. The same is true for provinces. Some are increasing emissions while others are squeezing them downward.

Provincial policies to address carbon pollution are still at a nascent stage. And they vary widely. British Columbia’s carbon tax is really the only carbon pricing policy in Canada that could be said to be reducing carbon emissions. It is still too early to evaluate whether Quebec’s cap-and-trade agreement with California will be effective and its small carbon tax has generated some revenue for the government but experts agree that it is too small to reduce emissions.

Alberta’s policy to tax carbon emissions on a per-barrel of oil basis is also small, and since it applies to a small share of Alberta’s total emissions, is ineffective at stimulating pollution reductions. Ontario appears serious about putting a levy on carbon but no one knows yet whether that will be a carbon tax or whether Ontario will join an existing cap-and-trade system.

What would the role of the Canadian government look like? Setting a price on carbon that is roughly equivalent across the country would be a key policy leveller. It is the ingredient that market mechanisms like a carbon tax or cap-and-trade system need to have to be fair and effective.

A minimum carbon price could be set for the country, with provinces deciding whether they want to match or exceed that level through a carbon tax or a floor price for permits as part of a cap-and-trade system. Any province that establishes such a system would be able to keep the tax revenue.

The federal government would also continue to pass regulations in areas that it has jurisdiction, such as energy efficiency standards for equipment and appliances, fuel efficiency standards for vehicles and carbon pollution levels for electricity generating stations.

All of this could be administered through an approach similar to Canada’s health care system, where clear, minimum standards need to be met for the federal government to transfer resources from the federal budget. In this case, that money could be for clean energy development and sustainable infrastructure projects, such as public transit.

The provinces have taken the lead in Canada on climate change, given a federal government that has gone AWOL on the issue. However, the correct response from our federal parties is to commit to remedying this situation, not to suggest that they will wash their hands of the matter or stand by and whisper encouragement and hope that will be enough.

Image Credit: Justin Trudeau via Flickr

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