Unless the Trudeau government takes a sharp turn from its current course, it’s starting to look as if fixing Canada’s environmental assessment law is going to be added to the growing list of bold commitments that it won’t deliver on. At the end of June, the federal government released a discussion paper outlining its plans. They amount to little more than tinkering with the Harper government’s devastating 2012 re-write of the Canadian Environmental Assessment Act.
In fact, the discussion paper actually says, “changes to the Canadian Environmental Assessment Act, 2012, are being considered…”
The Trudeau Liberals made a campaign promise to “make environmental assessments credible again,” and once in government, the Prime Minister’s mandate letter to Environment Minister McKenna repeated those objectives – to “immediately review Canada’s environmental assessment processes to regain public trust and help get resources to market and introduce new, fair processes.”
Likewise, in all of the Cabinet mandate letters Prime Minister Trudeau repeated, “No relationship is more important to me and to Canada than the one with Indigenous Peoples. It is time for a renewed, nation-to-nation relationship with Indigenous Peoples, based on recognition of rights, respect, co-operation, and partnership.”
Unless Minister McKenna and her Cabinet colleagues gets their act together, and quickly, they are in serious danger of betraying those promises. The discussion paper and related materials clearly point to government agencies (chiefly but not exclusively the Department of Natural Resources and its regulatory agencies) that are more concerned about figuring out what they should tell Canadians to convince them that they are meeting their commitments than they are about actually meeting them.
The discussion paper is the latest round of a public process that kicked off a year ago when the federal government appointed an Expert Panel to review federal environmental assessment processes. The Expert Panel’s report – Building Common Ground: A New Vision for Impact Assessment in Canada – was clearly rushed, but made dramatic progress in integrating the hundreds of submissions it received from all sectors of society in its cross-country hearings. Ironically, while the Expert Panel made a huge effort to fulfill one of the key principles of public engagement, and reflect back what it heard in reaching its conclusions, the discussion paper makes scant reference to either the Expert Panel’s report or the thousands of pages of testimony that it heard.
The Expert Panel criss-crossed the country, hearing from hundreds of people: community members, activists, experts (government and independent), and Indigenous and provincial governments alike. The Panel was repeatedly told – and reported – that the environmental assessment process needs a fundamental overhaul if it is to serve any useful purpose in building consensus and making informed and participatory development decisions.
There are certainly some positive elements in the discussion paper. It introduces gender-based analysis as a fundamental aspect of impact assessment; if properly implemented this would mean not just including gender-specific social and economic impacts, but a reframing of the entire process to make gender perspectives part of all aspects of information-gathering, analysis, and decision-making.
It also includes a recognition of the importance of assessing cumulative effects, both as part of regional studies and as a key element of sustainability – though it fails to build on this recognition to provide a useful framework for either regional assessment (i.e. looking at different development scenarios and projections in a geographical area) or sustainability assessment (i.e. seeking the greatest overall contribution to sustainability by integrating biophysical, social, cultural, economic, and health effects, as outlined by the Expert Panel).
Likewise, it does provide for direct engagement between Crown representatives and Indigenous peoples to address potential project impacts, and recognises (finally) the importance and integral nature of Indigenous knowledge – but it fails to allow for implementation of the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) despite making reference to it, and it makes only weak references to Indigenous jurisdiction, even under existing comprehensive land claims agreements. Indigenous peoples were not consulted in the formulation of the discussion paper, setting a poor precedent for further work on the issue.
“Lost protections” of waters – still lost
There are some outright failures – the promise to “restore lost protections” for navigable waters has been abandoned. The Harper government’s removal of tens of thousands of Canadian water bodies and waterways from the protection of the Navigable Waters Protection Act – and the environmental assessment process – was one of the key violations of trust that set off the Idle No More movement.
Yet the Trudeau government is proposing to basically leave things as they are. Projects affecting rivers and lakes that are not on the “Schedule” of protected waters don’t require permits, much less environmental assessments. While the government is talking about making it easier to add water bodies to the Schedule, including at the initiative of Indigenous peoples, it’s not clear how or when this will happen – or how it can be compared to the default blanket protections that used to be in place.
The public, and Indigenous peoples, will have very little faith that things can be “worked out” after the fact. The fact that the government can make such poor proposals on critical issues, a year into the review process, with all the information and analysis they have been given, does not inspire any confidence that it will follow through on anything that is not very clearly spelled out.
A ray of hope
There is one important detail. The government is proposing to require public notice in advance of a proposed work on any navigable water. It’s a small but very important concession. If projects are posted on a public registry, there’s at least the possibility of follow up monitoring and, where indicated, cumulative effects assessment.
It’s vastly inadequate, of course, since this wouldn’t apply to other areas of federal authority, where there would still be no provision for smaller projects to at least be registered. It also fails to address the need to screen a wide range of smaller projects for potentially serious impacts and “bump them up” to an environmental assessment where needed.
Speaking of which, what gets assessed?
Throughout the Expert Panel process there were clear demands from the public (and advice from experts) for a more comprehensive assessment law, one that would deal appropriately with small and large projects rather than just ignoring anything short of a “major project.” People specifically pointed to the need for mandatory assessment of projects on federal lands, in national parks or national wildlife areas, or requiring the disposal of federal lands – applying a suitable level of effort so that larger projects would get more in-depth attention, but assessing more like a few hundred projects a year across the country, as opposed to the present couple of dozen. No such commitment has been made, or even hinted at, in the discussion paper. Instead, it proposes leaving the Harper government’s “project list” in place, with a nod to adjusting it, but without proposing any specific process or criteria for doing so.
Likewise, while the discussion paper endorses strategic environmental assessment as a tool for applying environmental frameworks to government plans, policies, and programs – and promises one on the Pan-Canadian Climate Change Framework – it doesn’t acknowledge the importance of actually taking sustainability into consideration in designing those policies, and therefore making strategic assessment a legal requirement in developing federal plans, policies, and programs.
Assessments are to be done by a single agency – unless they aren’t
The discussion paper also proposes that all federal assessments be coordinated and reviewed by one agency, cutting out the National Energy Board (NEB) and the Canadian Nuclear Safety Commission (CNSC). Great! But this is a “no-brainer”, given that both of those agencies are widely seen as thoroughly captured by their “client” industries and incapable of running independent, neutral assessments. Clearly, they have a role to play, as regulators, in contributing their expertise to the assessment process, ensuring that regulatory requirements are being met, monitoring and enforcing regulatory conditions established through assessments, even contributing a panel member to panel reviews.
But wait, what’s this? The discussion paper turns around and proposes joint reviews between the EA Agency and the NEB and CNSC for projects that they regulate – and then compounds the error by adding the offshore petroleum boards, which have even less public legitimacy as assessors. Is there anyone who seriously thinks this is a good idea, aside from the agencies themselves and their client industries?
Public Participation
Likewise, the document recognises the importance of early public involvement, but undermines public participation by leaving early engagement and much of the content of the EA process in the hands of project proponents – and maintaining the legislated deadlines that make it so difficult for the public to engage fruitfully in the process (and Indigenous peoples even more so).
Back in March, before the Expert Panel report was published, we set out nine criteria we would judge it on: does the next generation assessment proposal:
- Account for all dimensions of sustainability?
- Respect Indigenous authority and governance?
- Tie together assessment and decision-making by different government levels?
- Ensure there is a meaningful system for follow-up, monitoring, and enforcement?
- Provide for full public participation, transparency, accountability, and rights to challenge decisions in court?
- Address climate change effects?
- Include strategic and regional assessment as fundamental components of the law?
- Include appropriate assessment of the thousands of smaller projects currently not being studied?
- Promote evidence-based decision-making?
The Expert Panel report in April addressed all of them quite encouragingly, some more solidly than others, but overall, it was an important step forward. Despite a few positive efforts, the June discussion paper falls far short.
It seems the Liberals are proposing to tinker with the Conservatives’ legislation, not repeal and replace it. We’ve warned them that while this may keep the captains (and cheerleaders) of industry happy, it’s not going to restore public confidence, much less build reconciliation with Indigenous peoples. Maybe that’s a price they’re willing to pay, but it will do little to help bring us to a sustainable and just future.
What can you do? You can submit your thoughts via the government’s discussion paper feedback site. You can also send a message via our online tool to your MP and key Cabinet Ministers, telling them not to squander the opportunity to get EA right. This is too important to let bureaucratic inertia and short-term extractive industry interests derail it.