It's been just over a week since Bill C-69, Canada's new impact assessment legislation was presented for first reading in the House of Commons.
The Bill fell quickly on the heals of the much-needed update to our Fisheries Act, which I was happy to see reversed the changes made under the Harper government and even went steps further to protect small inshore fisheries and communities from corporate take over and supports the Minister in restoration of our fish stocks. Given the fact that about half of fish stocks in Canada are either over-fished, close to being over-fished, or we don’t know enough to know if they are overfished, this is a good place for a Fisheries Minister in 2018 to focus their efforts!
Two days later, the approximately 400-page Bill C-69 amending the Canadian Environmental Assessment Act - and a suite of Acts that tie into the Act - was presented.
Environment and Climate Change Minister McKenna was tasked with bringing the complex bill before the House and the media, and other MPs across the country shared the message with their constituents. This was the government keeping its promise for #BetterRules for projects like pipelines, they said (because what law drops in 2018 without a hashtag?)
Only these aren't entirely better rules.
The response to the new Bill is still being filed from experts across the country (please see analysis here, here, here, and here if you want to read more), and goodness knows there is much work to do before the Bill comes before Parliamentary Committees.
I have experienced environmental assessment as a practitioner and a community member, contributing knowledge and gathering knowledge about impacts from community members. To be frank, one often was cynical going into these processes, as under the old Act, denial of projects was pretty much unheard of, whether they were new coal mines or pipelines or coastal mega-quarries (OK we won than one – sort of!) The best one could hope for was reducing bad impacts (referred to as "significant adverse effects"), with the side benefits of raising awareness and engaging communities in monitoring and reducing the damages to come.
And this was before the Harper government diminished environmental assessments even further to pave the way for industry - a move that backfired because Canadians lost faith in the process entirely.
But Canadians voted in a government that wanted to make "environmental assessments credible again" in 2015. And this is why we had asked you several months ago to write in to our leaders to ask them for key improvements.
For the past week, I've been trying to figure out: were you heard?
Who Will Decide?
As you will know, one area we are very concerned about is the power given to NS and NL offshore petroleum boards in reviewing projects.
It should be noted that the National Energy Board and the Canadian Nuclear Safety Commission cannot lead up environmental assessment for things like pipelines or nuclear power plants under the new Bill. But they are given the ability to place members on review panels that will assess and make recommendations on projects. The Act even leaves it open for the majority or entire membership of a review panel to be drawn from these regulators. A dangerous, drafty door to exactly the type of thing the reforms of the Act were designed to prevent.
In the case of the oil boards in Atlantic Canada, we are extremely alarmed at the new powers given. The draft legislation says two or more members of assessment panels (which can have 5 or more panel members, total) can be drawn from oil boards. These boards are mostly made up of people who have worked for the oil and gas industry and the Board's themselves have a mandate to promote oil and gas development - a clear conflict of interest for anyone to determine where, when, how seismic blasting or drilling will occur in over 85% of the ocean surrounding Nova Scotia and Newfoundland and Labrador that is open to oil and gas development.
Both the draft rules and the WAY the offshore boards received this increased power gives us reason to be very concerned about Bill-69.
It became clear to us late last summer that the oil industry and provincial governments were pushing for a greater role in the environmental assessments. And in the draft legislation, it looks like they got what they wanted.
In and of itself this is poor lawmaking (regulators should not play a role in planning processes like assessments), and breaks the Liberal promise to make environmental assessment credible again.
But the influence of the oil industry on the process of drafting Bill-69 itself should raise red flags for all Canadians in other ways.
Discretion - Not Obligation
Bill C-69 grants the new Impact Assesment Agency, the Minister and Cabinet discretion in making many decisions regarding environmental assessment, including whether an assessment will be performed at all.
The Environmental Assessment (EA) Expert Panel that consulted Canadians on environmental assessment offered numerous ways to make assessments less susceptible to political pressure, but they did not make it into the draft bill:
1. The EA Expert Panel recommended peer-reviewed, independent science be part of the assessment process. Those who have never been involved directly in an assessment may not know that the study of the impact of a project is actually produced in large part by the company (or consultants hired by the company) wanting to do the project. Time and again information is papered over, risks minimized, and any negative responses from consultations with communities are underplayed. Sometimes information is just plain wrong. Bill-69 does not require peer review of science presented in assessments.
2. Bill-69 leaves the final determination on a project: the YES or NO that comes at the end of all the expert submissions and public participation – to the Minister or Cabinet. The EA Panel pointed to a commission that would take the information gathered in environmental assessments and make the decision if the project should be approved or not.
3. The Minister or Cabinet will make their decision based on whether the project is in the “public interest.” Factors taken into "consideration" to determine whether or not a project is in the public interest include: contribution to sustainability, impact on climate change commitments, impact on indigenous peoples and rights, and the damage the project will do and the degree that this damage can be mitigated. However, there are no strict “tests” or standards for deliberating these factors.
4. Rather than obliging the Minister to obtain free, prior and informed consent, as required by the UN Declarations of the Rights of Indigenous People, the Bill, to paraphrase Minister McKenna, “tries very hard” to increase opportunities for participation and consultation on the part of indigenous people. In some cases indigenous governing bodies can carry out reviews themselves. But still decisions regarding these roles and final decision-making on projects will still rest with the Agency and federal government, rather than embracing the concept of "collaborative consent" outlined by the Expert Panel.
When so much of the new Bill is discretionary, how will industries pushing for a certain outcome influence even the most environmentally friendly government - never mind any future government that is actively against environmental protections?
Mind the Gap
It is important to note, one critical area in particular remains a blank slate.
We don't know what projects will actually be reviewed at all - and we don't know how government will make this decision. The consultations on what will determine what make this list are happening now, but this is a critical piece of the puzzle.
For instance, will in situ oil sands extraction be on the list? Will seismic blasting in our oceans be there? Under the Harper government, one of the key changes made was restricting what actually got scrutiny and it is to be expected that as part of the Liberal agenda this list will be expanded, but not providing the list with the legislation leaves a big gap.
The lobbying from the oil industry and provinces has clearly influenced Bill-69. And be assured, when the time comes, they will also be there, pushing for certain outcomes on drilling, seismic, pipelines, and mines.
Our oceans are in trouble, climate change is a global emergency. The continued existence of thousands of species such as the right whale hang by a thread.
What a moment in history to be re-writing our environmental laws! We’ve got to get it right. And in the case of Bill-69, we want an improvement on #BetterRules.
National Program Director