Save Canada's Environment Laws - Backgrounder

The Conservative government is proposing to gut the Canadian Environmental Assessment Act (CEAA) through amendments included in Bill C-9, the proposed Jobs and Economic Growth Act, which is the legislation to implement the 2010 federal budget.

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These amendments:

•    allow the Minister of Environment to avoid doing detailed environmental assessments on large projects by breaking the projects up into smaller pieces.  This amendment undoes the recent victory by Mining Watch Canada and Ecojustice in the Red Chris Mine decision of the Supreme Court of Canada.  These new rules apply even to projects that are already in the environmental process but which had not been scheduled for the more detailed “comprehensive study” process because of the government’s refusal to acknowledge its legal obligation to do so.

•    exempt a host of major projects that are funded by federal infrastructure and other government sources from environmental assessment provisions.  These sections effectively give legal sanction to rules that were previously contained in regulations of questionable legality which are being challenged in court by Sierra Club Canada and Ecojustice.  In some cases this will mean that no environmental assessment will be conducted in respect of these projects.

•    hand over public panel reviews for pipeline and nuclear energy projects to the National Energy Board and Canadian Nuclear Safety Commission respectively away from the Canadian Environmental Assessment Agency. The Canadian Environmental Assessment Agency has significant expertise in environmental assessment and a strong record in facilitating public participation; the NEB and CNSC don’t have such expertise and a much weaker record.

Last year the Conservative government included amendments to the Canadian Environmental Assessment Act (CEAA) and regulations as well as the Navigable Waters Protection Act in the budget implementation legislation, thereby eliminating thousands of assessments that helped to ensure that development is sustainable.

This approach to passing laws is highly undemocratic.  A vote on budget implementation bills is an automatic vote of confidence, meaning that the opposition parties cannot defeat the bill without bringing the government down.  While this approach of adding riders to bills is common in the United States Congress, it has not been done in Canada’s Parliament—until the Harper Conservatives came to power. 

The amendments to CEAA have absolutely nothing to do with the budget and including them in the proposed Jobs and Economic Growth Act buries these 20 sections in a book-length (2208 sections) statute.  As a result, they are less likely to receive scrutiny from parliamentarians reviewing the other 2188 sections of the bill.  

CEAA itself mandates a public and transparent review (the “seven-year review”) which is required to begin by June 2010!  A previous review (the “five-year review) involved consultations with the public, Aboriginal groups, environmentalists, industry as well as involving opposition MPs in the process.  To make large scale revisions to the Act just before the government was supposed to consult the public flies in the face of the public process mandated by Parliament.

Since the late 1980s, the federal Environment Minister has had a multi-stakeholder committee the “Regulatory Advisory Committee” (or RAC), with representatives from industry, Aboriginal groups, the environmental community and others, to advise him on possible changes to CEAA and its regulations.  Environment Minister Jim Prentice has not asked RAC for input into these changes, or on anything else since the spring of 2008.

In the context of the current minority government, it is unlikely that the three opposition parties will join to vote down the proposed amendments to the Canadian Environmental Assessment Act and thereby trigger a federal election.
That is why the signatories to the attached letter are urging opposition party leaders to commit to restoring and reforming the Canadian Environmental Assessment Act as soon as they have the opportunity to do so. 

S. Hazell, Ecojustice  and Andrew Gage, West Coast Environmental Law
April 26, 2010