Scientists and environmental groups breathed a sigh of relief when Prime Minister Justin Trudeau quickly followed through on a campaign promise to modernize Canada’s environmental laws.
Within a year of being elected, the Liberals initiated four parallel reviews of key environmental legislation weakened or eliminated under former prime minister Stephen Harper.
But now, as that review process is coming to a close, experts are back to holding their breath.
The federal government’s response to bold recommendations for reforming the Canadian Environmental Assessment Act, the National Energy Board Act, the Fisheries Act and the Navigation Protection Act is “underwhelming,” Jacob said.
That response — released quietly this summer in the form of a 24-page, diagram-filled discussion paper — was so scant on details experts say it’s distressing.
“This was all under the radar in a very worrying way,” federal Green Party Leader Elizabeth May told DeSmog Canada. “I just get the feeling like someone’s pulling a fast one.”
“Releasing this at the end of June with a public comment period ending August 28th, I can’t begin to imagine the average person or even the attentive environmentalist was properly alerted to the content of this document.”
After multiple requests, the federal government recently extended the public submissions period until September 15.
May said the federal response lacked substance and paves the way for maintaining the devastating changes made to environmental laws under Harper.
“We’ve had all of these consultations with experts and citizens across Canada and now we end up — either by design or happenstance — with the federal government actually rejecting all the key recommendations by the panels without even explicitly saying so.”
“I’m apoplectic with rage that this is being proposed,” May said.
“Now we’re looking at mild tweaking as opposed to the massive repair of our gutted environmental laws.”
May said the regulatory system has been calibrated to serve the needs of industry.
“The changes to our laws have converted many of our agencies into a corporate concierge service to aid the approval of projects,” she said.
Linda Duncan, NDP member of parliament for Edmonton-Strathcona and Energy and Climate Change critic, said it’s troubling that the Liberals have continued to approve major resource projects while relying on “emasculated” laws and processes.
Federal approvals for several controversial projects, including the Kinder Morgan Trans Mountain pipeline, Enbridge Line 9 pipeline, the Site C dam and the Pacific Northwest LNG export facility, have been granted while the review process has been ongoing.
“The government continues to drag its heels on tabling the promised reforms,” Duncan said, adding onlookers have every right to be concerned appropriate actions won’t be taken to meaningfully restore Canada’s environmental laws.
“The initial concept paper issued by the government in response to their own expert review and public feedback is almost completely dismissive of the reforms called for,” Duncan said.
Environment and Climate Change Minister Catherine McKenna told DeSmog Canada in an e-mailed statement, “We are committed to making environmental assessment and regulatory changes that regain public trust, protect the environment, support reconciliation with Indigenous peoples and ensure good projects go ahead and get resources to market sustainably.”
The laws under review affect everything from fish to water to climate change to how we get energy.
“We entrust government to guide this process that helps us make decisions as a society on what kind of projects and infrastructure we want to see in our environment and on our lands,” said Katie Gibbs, executive director of the science-advocacy organization Evidence for Democracy. “That’s such a fundamental way government touches on and impacts our lives.”
Some of the most contentious project reviews in Canadian history have taken place in recent years.
The Enbridge Northern Gateway and Kinder Morgan Trans Mountain pipeline hearings were beset with problems stemming from what many have identified as a collapse of public trust in the process and Canada’s regulatory bodies.
Trudeau’s promise of environmental reform spoke directly to the question of how Canada could conduct more meaningful, credible scientific reviews of resource projects with a goal of selecting projects best situated to serve the public interest. (Although it’s important to note Trudeau did not follow through on an explicit promise to restart the Trans Mountain pipeline hearing under a new, modernized review process).
“These are some of the biggest challenges Canadians face today and we have a real opportunity to do things better,” Jacob said.
— DeSmog Canada (@DeSmogCanada) September 12, 2017
However, the federal government’s discussion paper takes a big step back from the panels’ bold recommendations, Jacob said.
In partnership with 24 other scientists, Jacobs spearheaded the writing of a report, Strong Foundations, that identifies gaps in the government’s response.
“Some of the gaps we talked about mentioned, for example, that we need to have decision rules. These rules would lay out how government — cabinet or the minister, whoever makes the final decision on an environmental assessment — how they came to that decision,” Jacobs said.
Environmental assessments incorporate multiple streams of information, including science produced on behalf of a project proponent, third-party reviews, academic research and traditional Indigenous knowledge.
“All of this information is taken into account in how we make decisions but unless you clearly lay out what role those things play in a decision, it remains a black box.”
Jacobs said the report also touches on the need for greater transparency in the use and sharing of data, incorporation of the precautionary principle, assessment of regional and cumulative impacts as well as impacts of projects on larger national goals like Canada’s climate commitments under the Paris Accord.
Gibbs said Canada has the opportunity to become much more strategic in how and when it uses environmental assessments and what role science plays in those processes.
“One big issue that is left unaddressed is what will even trigger an environmental assessment. Even if you do have an incredibly strong environmental assessment process, if you don’t have a strong evidence-based trigger for what projects actually go through that process, it could end up being meaningless,” Gibbs, a co-author of the Strong Foundations report, said.
Jacob, Gibbs and their co-authors submitted their report to the federal government as part of the discussion paper’s public comment period.
Chris Tollefson, lawyer with the Pacific Centre for Environmental Law and Litigation, said the Liberals could take a political hit for missing this generational opportunity to repair legislation.
”The government will have to realize the risk it’s taking here by potentially reigning in its aspirations and rolling over to industry pressure,” he said.
The government has been under tremendous pressure both in terms of lobbying and also tight review timelines, Tollefson said, and that could account for some of the gaps in its current position.
Of prominent concern to Tollefson, who has represented numerous individuals, environmental groups and First Nations in hearings and legal challenges of major projects, is the use of science bought and paid for by project proponents.
“In that respect the current model is fatally flawed,” he said.
One of the panel’s recommendations for environmental assessments is that Canada move to a model that relies on truly independent, cutting-edge science.
“That is a game changer,” Tollefson said.
“If we miss this opportunity to think more broadly about how we assess major projects, to put them into the proper social, environmental and economic context they deserve, that really is a missed opportunity we potentially won’t have for another generation.”
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