Trudeau Town Hall

Three Gaping Holes in Trudeau’s Attempt to Fix Canada’s Environmental Laws

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.

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.

Like a kid in a candy store
When those boxes of heavily redacted documents start to pile in, reporters at The Narwhal waste no time in looking for kernels of news that matter the most. Just ask our Prairies reporter Drew Anderson, who gleefully scanned through freedom of information files like a kid in a candy store, leading to pretty damning revelations in Alberta. Long story short: the government wasn’t being forthright when it claimed its pause on new renewable energy projects wasn’t political. Just like that, our small team was again leading the charge on a pretty big story

In an oil-rich province like Alberta, that kind of reporting is crucial. But look at our investigative work on TC Energy’s Coastal GasLink pipeline to the west, or our Greenbelt reporting out in Ontario. They all highlight one thing: those with power over our shared natural world don’t want you to know how — or why — they call the shots. And we try to disrupt that.

Our journalism is powered by people just like you. We never take corporate ad dollars, or put this public-interest information behind a paywall. Will you join the pod of Narwhals that make a difference by helping us uncover some of the most important stories of our time?
Like a kid in a candy store
When those boxes of heavily redacted documents start to pile in, reporters at The Narwhal waste no time in looking for kernels of news that matter the most. Just ask our Prairies reporter Drew Anderson, who gleefully scanned through freedom of information files like a kid in a candy store, leading to pretty damning revelations in Alberta. Long story short: the government wasn’t being forthright when it claimed its pause on new renewable energy projects wasn’t political. Just like that, our small team was again leading the charge on a pretty big story

In an oil-rich province like Alberta, that kind of reporting is crucial. But look at our investigative work on TC Energy’s Coastal GasLink pipeline to the west, or our Greenbelt reporting out in Ontario. They all highlight one thing: those with power over our shared natural world don’t want you to know how — or why — they call the shots. And we try to disrupt that.

Our journalism is powered by people just like you. We never take corporate ad dollars, or put this public-interest information behind a paywall. Will you join the pod of Narwhals that make a difference by helping us uncover some of the most important stories of our time?

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