Proposed Federal Improvements for Environmental Protection
The Federal government has been undergoing a review of federal environmental assessment processes. After receiving input from committees and others, a document has been produced: Environmental and Regulatory Reviews Discussion Paper, Gov. of Canada of June 2017
Comments on the document by Anne Dumbrille July 27, 2017 follow:
Goal: This discussion paper outlines the changes the Federal Government is considering for Canada’s environmental assessment and regulatory processes aimed at regaining public trust, protecting the environment, advancing reconciliation with Indigenous peoples and ensuring good projects go ahead and resources get to market.
In fact, the proposed changes will replace legislation that the Harper government removed (see comments on the Act of 2012, below), and may help with pipeline approval. Aboriginal involvement is stressed.
Included projects: The Federal Environmental Protection Act and revisions appear to be specific to that which is presently federal responsibility – nuclear as well as off-shore gas/oil/renewable energy/transmission lines. There is a list of applicable projects which will be updated.
Neither the present Act nor the proposed changes directly apply to land-based turbines or other projects presently under provincial jurisdiction, or those that might be transferred to provincial assessment.
They do apply to off-shore wind turbines, and to potential adverse environmental effects that cross international and provincial boundaries. So if a project affects birds in the USA and Quebec, i.e. migrating birds, the Act may apply.
Process: The Federal proposal will add the inclusion of consideration of safety, economic, environment, social and/or health impacts. “Canada’s new environmental assessment system must consider impacts on more than just the environment. The economic, social and health effects associated with a project must be considered.” “…to support more holistic and integrated decision making in areas of federal jurisdiction”. Previously, the health and socio-economic conditions, and physical and cultural heritage of aboriginal peoples only were considered. This broadening of scope is a welcome addition.
In Ontario, the Green Energy Act (GEA) does not allow the ERT review process or the O.Reg 359/09 to consider social and economic impacts to a community. Regarding human health, an ERT can only be based on proven serious harm to health. This is inconsistent with the province’s Environmental Protection Act (EPA), which defines “adverse effect” to include injury or damage to property, harm or material discomfort to any person, loss of enjoyment of normal use of property, and interference with the normal conduct of business. (Environmental Protection Act, RSO 1990, c E.19. https://www.canlii.org/en/on/laws/stat/rso-1990-c-e19/latest/rso-1990-c-e19.html) The EPA, but not the GEA, is consistent with legislation federally and provincially across Canada, and internationally which recognizes human participation in and connection to the “environment” by defining the environment and related terms to include human uses and property. Yet there is no evidence of economic, social or health impacts in the approval process of wind turbines in Ontario.
The Federal proposal stresses that decisions be made based on best available science and Indigenous knowledge, and include the cumulative effects of development.
In Ontario, the GEA does not require solid science. For example, the implementation process only requires that proponents complete surveys regardless of the quality of the surveys. The MOECC staff not enforcing data quality standards for REA submissions violates both the science based approach, the adaptive management approach, and the requirements of monitoring and assessment.
The GEA does not allow consideration of cumulative effects; it abandons the precautionary principle, instead putting a reverse onus on decisions about projects that must demonstrate serious and irreversible harm to a significant value. Clearly, the Federal proposals represent a superior approach.
A guiding principle of the Federal document is transparency and inclusive and meaningful public engagement — consultation and participation from the public, and more particularly from aboriginal communities. Regarding the courts striking down an oil and gas project this week, the Courts said: “The duty to consult requires a meaningful opportunity for dialogue with indigenous groups whose rights may be impacted.” It is not clear to what extent the general public would share such rights.
Regarding consultation, it is important that “consideration” of all input not be just lip-service, as many in The County and elsewhere in Ontario feel has happened at the provincial level. As written in a Globe and Mail editorial July 27, “For a consultation to pass constitutional muster, it must be real and substantial. It can’t be just about collecting complaints and suggestions, and then ignoring them.”
In Ontario, regarding approval of wind turbine projects, the review and decision-making process is far from transparent – it is a black box. Even recent ATIP requests requesting information regarding the reviews are blocked.
The revision proposes increasing and improving the role of the aboriginal people in the assessments and processes, including allowing for the sharing of administrative authority and management responsibility.
It has been presented in the courts that the widespread exclusion of aboriginal decision making from federal and provincial decisions that profoundly affect the environments in which aboriginal peoples live amounts to a fundamental omission of a constitutional right of participation. (Aboriginal rights: Molested And Disturbed: Environmental Protection by Aboriginal Peoples through Section 35 of the Constitution Act, 1982 p.7. Theresa McClenaghan, Canadian Environmental Law Association, 1999. http://www.cela.ca/sites/cela.ca/files/uploads/376aboriginal.pdf) Provincial infringement is described pp. 49 of that article. Section 35 rights, and the Crown’s obligations under it are not clearly defined (see Taking Section 35 Rights Seriously: Non-derogation Clauses relating to Aboriginal and treaty rights Final Report of the Standing Senate Committee on Legal and Constitutional Affairs, 2007 https://sencanada.ca/content/sen/committee/392/lega/rep/rep05dec07-e.pdf). I do not have the knowledge to expand on it further.
Changes to the National Energy Board Act would include adding provisions to provide authority to regulate renewable energy projects and associated power lines in offshore areas that are under federal jurisdiction. More detail is required regarding this role of the NEB before the benefit can be determined.
Canadian Environmental Assessment Act 2012: https://www.canada.ca/en/environmental-assessment-agency/corporate/acts-regulations/legislation-regulations/canadian-environmental-assessment-act-2012.html
This was enacted as part on an omnibus budget Bill C-38 (replaced the Act of 1992).
Complaints have been that it restricts the quality and quantity of information necessary for making sound decisions, reviews too few activities and shuts citizens out of decision-making, forcing them to take to the courts and the streets for a fair consideration of their concerns. The new act limited assessment just to the type of projects listed in this regulation. It decreased initial input from biologists, overall public input, and accelerates movement of the project to the legal hearing stage. With it, the National Energy Board for example, may issue licenses and permits without an environmental assessment, may conduct their own assessment, and may cancel existing assessments currently in process. Information on environmental effects is limited to effects on fish, aquatic species, and migratory birds. Previously, information on terrain, air, vegetation, all wildlife, and all habitats was also required. https://en.wikipedia.org/wiki/Canadian_Environmental_Assessment_Act
Under CEAA 2012, an environmental assessment focuses on potential adverse environmental effects that are within federal jurisdiction. This includes federal lands, effects that cross provincial or international boundaries, and changes to the environment that are directly linked to or necessarily incidental to any federal decisions about a project. It includes effects that impact on Aboriginal peoples, including any change that may be caused to the environment on health and socio-economic conditions, physical and cultural heritage, the current use of lands and resources for traditional purposes, or any structure, site or thing that is of historical, archaeological, paleontological or architectural significance.
An environmental assessment will consider a comprehensive set of factors that include cumulative effects, mitigation measures and comments received from the public.
The new Federal proposals represent a more comprehensive, inclusive, science-based and potentially transparent approach to environmental assessment – a welcome change from the CEAA 2012.P