Government of Canada enacts changes to environmental assessment processes

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May, 2018: A new report shows that there is a demand in Canada to strengthen science-based research in environmental assessments. Photo by Matt Jacques

On June 21, 2019, the federal government of Canada (Canada) passed Bill C-69, new legislation that will materially reform the federal environmental assessment regime in Canada. The reforms will see the National Energy Board (NEB) replaced by the Canadian Energy Regulator (CER) and the Canadian Environmental Assessment Act, 2012 (CEAA 2012) replaced by a new Impact Assessment Act (IAA). See our initial reviewof the proposed reforms.

Bill C-69 was subject to a review by the Standing Senate Committee on Energy, the Environment and Natural Resources. On June 5, 2019, after hearing from interested parties across the country, including members of Osler’s Regulatory, Environment, Aboriginal and Land Group, the full Senate passed a suite of close to 190 amendments to Bill C-69. Canada agreed to accept roughly half of these, but largely rejected the proposed amendments put forward by Conservative senators as well as several amendments proposed by independent (formerly Liberal) senators that would have improved the Bill. Although the final amended version of Bill C-69 can be considered an improvement over the original draft, the new legislation introduces considerable uncertainty into the federal environmental assessment processes, and key issues that plagued Bill C-69 from the outset remain.

Bill C-69, as amended, introduces considerable uncertainty into the review process

Bill C-69 will exacerbate the ongoing issues of regulatory uncertainty and protracted timelines that currently exist under CEAA 2012, which are seriously impairing Canada’s ability to attract investment. Environmental assessments under the IAA will continue to take longer than necessary and will provide Canada with the opportunity to repeatedly “stop the clock,” thereby raising the spectre of indefinite delays. In addition, Bill C-69 allows for a degree of public participation that will not serve to provide the Impact Assessment Agency of Canada (Agency) or CER with the best available, relevant evidence. Rather, all interested persons, many of whom may have no connection to the project being reviewed, will be allowed to opine on and object to the project on unrelated grounds that may be completely outside the proponent’s control. Overall, the process has become increasingly politicized and represents a shift away from decision-making by expert quasi-judicial bodies. Further, while Bill C-69 attempts to address perceived public concerns with the current regulatory regime, in our view it will likely serve to make the process less efficient and will not improve the environmental outcomes of the regulatory process.

Summary of noteworthy amendments proposed by the Senate and passed by the House

The following summarizes some of the noteworthy amendments to the original version of Bill C-69 that were included in the final version of the Bill that was passed into law, including some of the few amendments that improve the Bill relative to its earlier version: MORE

Insiders reveal how Canada used dubious research to approve major industrial projects


Workers take soil samples as crews work to contain and clean up a pipeline spill at an oilsands facility near Fort McMurray, Alta., Wednesday, July 22, 2015. Photo by Jeff McIntosh/The Canadian Press

In the world of environmental assessments, few words carry as much significance as “significant.”

Simon Halfyard* knows that better than most. A biologist who works as an environmental consultant in British Columbia, he works for a company that was hired by a sub-consulting firm to do an assessment of the risks and impacts associated with a large-scale natural gas project on the province’s north coast, which was going to consume hectares of land. (He asked that his real name not be used for fear of reprisal.)

It became clear to him that a large amount of critical fish habitat was going to be lost to the footprint of the project.

“So in my interpretation of this, I declared this particular project to be a ‘significant’ risk,” he says. “You want to try and avoid significant effects.”

His assessment wasn’t well-received by his manager, who made it clear he was going to have to tone down his language and focus on the minimum requirements — to strive, Halfyard says, “for mediocrity.”

“‘You can’t say significant,’” Halfyard recalls being told by his manager. “‘You’re putting the project at risk.’”

The pressure persisted — from his own company, as well as the company that had sub-contracted them. Statements were removed from his report, and he was called out by the project manager as uncooperative in abrasive emails to his employer.

“I had two levels of censorship,” he says. “I didn’t understand why I should be unfairly pressured to undermine my professional judgment.”

Halfyard is one of several scientists who spoke to National Observer about their experiences with environmental assessments on major industrial projects that got approved after their proponents submitted dubious evidence in their applications. The consultants all experienced similar pressure to overlook evidence that might make it difficult for projects to get approved by regulatory agencies.

National Observer reached out to them over the past five months as part of an investigation into how federal and provincial officials review the environmental impacts of major industrial projects. The investigation was triggered by tips from several scientists about what they perceived as weaknesses in the current regulatory system. National Observer spoke to more than a dozen sources who held or continue to hold different positions in government and industry that are related to environmental reviews and oversight as part of this investigation.  MORE

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Senate changes to environmental assessment bill are worse than Harper-era legislation: experts

©Garth Lenz --1618
Tailings for Imperial Metals’ Red Chris Mine perch above a B.C. lake. Proposed new rules for reviewing major projects like mines and pipelines have been majorly revised by the Senate. Photo: Garth Lenz / The Narwhal

Following intensive lobbying by the oil and gas industry, the unelected Canadian Senate has approved more than 180 controversial amendments to Bill C-69. Experts describe the amendments as incoherent, badly drafted and an attempt to dodge climate change considerations

Jason Kenney travelled to Ottawa only days after he was sworn in, telling members of the Senate’s energy committee that Bill C-69 was the “culmination of a full-frontal attack” on Alberta’s economic prosperity.

But the Senate’s surgery is so extreme, with many of its wide-ranging amendments mirroring requests from the oil and gas industry, some verbatim, that environmental law experts say Canada would be better off leaving the Harper-era environmental assessment legislation in place.

Following a report from an expert panel that travelled across the country, hearing from stakeholders in 21 cities, federal Environment Minister Catherine McKenna introduced Bill C-69 in February 2018, saying the new legislation would ensure “more timely and predictable project reviews” that would attract investment and development.

The 340-page bill replaces the Canadian Environmental Assessment Agency with the Impact Assessment Agency of Canada. The bill also makes changes to the Navigable Waters Act and overhauls the beleaguered National Energy Board, replacing it with a Canadian Energy Regulator.

The new impact assessment agency would review all major projects in the country, assessing not just the environmental impacts but also the social, economic and health impacts, as well as the effects on Indigenous peoples.

The bill establishes timelines for assessments and requires that impacts on Indigenous rights and culture be considered early on in the planning process. MORE

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Senate Playing With Fire on Environmental Bills

When it comes to environmental laws, oil companies shouldn’t make the rules


Photo by James Wheeler from Pexels

The good news: Canada is in the final stages of developing a new federal law that will modernize our environmental assessment laws. The bad news: this practical and relatively modest goal has been the subject of an extensive misinformation campaign by the oil and gas industry.

The latest step in the campaign to Kill the Bill is a tour by Canadian Senators that kicks off the second week of April, duplicating over two years of consultations and a 20-stop tour already undertaken for this legislation.

The oil & gas industry (CAPP) has been lobbying non-stop against environmental assessment bill C-69, at one point averaging a meeting per workday just on this legislation,” writes @CanadaGray

It’s probably not a surprise to anyone that Canada’s oil and gas industry does not want climate to be a major consideration when energy projects are reviewed. As a result, the Canadian Association of Petroleum Producers (CAPP) is demanding that the Senate include regressive amendments to Bill C-69. Although Bill C-69 — which will fulfill the government’s platform commitment to take steps to fix Canada’s broken impact assessment process — is not perfect, it is a major improvement in how we will assess the health and environmental impacts of major projects. For the first time, a project’s impact on Canada’s climate change goals will be an important consideration.

CAPP is essentially demanding that Canada stick its head in the sand. The world is up against a hard deadline and we need to reduce greenhouse gas emissions, fast. In fact, the bill should go further than it currently does to consider the cumulative impact of projects on reaching our national climate targets. Of course, no individual project will single-handedly blow through our climate goals — but taken together, they can. If the federal review process doesn’t take into account industry’s overall impact on the climate, when exactly is that supposed to happen?

Federal impact reviews are supposed to be Canada’s opportunity to see both the forest and the trees. The point of this bill is not, as some have asserted, to find a new way to get pipelines approved. Rather it is to consider the complex impacts and tradeoffs that many types of industrial projects present for the lives of Canadians and our natural environment. Climate is the most urgent of these factors.

Think about it another way: the Trans Mountain pipeline has been in the ground for more than 60 years. Shouldn’t industrial projects that will still be impacting the landscape, the neighbourhoods and the atmosphere more than half a century from now be rigorously considered from all angles before shovels go in the ground?

Yet, it appears that there is no level of oversight or public accountability that CAPP and its members will view as acceptable. Under the current federal climate plan, emissions from oil and gas are actually expected to rise, even while transportation, buildings and other sectors will have to cut emissions drastically.  MORE

The water justice movement’s fight against commodification and extractivism

Photo: Peg Hunter/Flickr

An overview of the water justice movement in Canada and the ways in which power is manufactured and deployed in water governance.

Water is a cross-cutting issue among many social movements in Canada and in Indigenous nations. The water justicement movement here is diverse and includes grassroots groups, individual activists, Indigenous nations and groups, environmental and labour organizations, scientists, workers and many others.

They work on broad range of issues including calling for justice in the face of drinking water advisories in First Nations communities, Nestlé and other bottled water takings, oil and gas drilling, pipelines, mining, fracking and liquefied natural gas (LNG), public-private partnerships, nuclear waste and other threats. There are also localized movements fighting mega quarries, logging and so much more.

The various struggles within the water justice movement overlap at times. The underlying messages and principles throughout all of these fights are often “water is life,” “water is sacred,” “water is not for sale” and “water is a human right.”

Power is manufactured and deployed through:

  • The creation of laws or policies: For example, Bill C-69 which includes the Canadian Navigable Waters Act, has significant impacts on water, yet fails to obtain free, prior and informed consent from Indigenous nations, cutting many out from decision-making processes.
  • Policing and criminalization of dissent: There are a lot of examples where governments and police criminalize Indigenous peoples and settler activists for defending lands and waters such as the Line 9 pipeline, the Trans Mountain pipeline, fracking in Elsipogtog First Nation and the raid on Wet’suwet’en territory earlier this year, and protect corporate interests instead.
  • Land or property: Whether land is designated Crown land, private property or recognized as Indigenous territory gives some people power and leaves others out of decision making.
  • Messaging, language and framing particularly in the media: Messaging can be based on false assumptions. For example, messages like “the fossil fuel industry is the only way to create jobs” or “pipelines, fracking and bottling water are good for the economy” are based on the false assumption that the current capitalist economy is good for everyone.
  • Knowledge and access to information: Public-private partnerships are often kept secret — like in the case of Winnipeg — and that inhibits a community’s ability to engage in genuine democratic debate.

MORE

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Breakthrough: Water Apocalypse

Despite Earth’s surface being covered with water, there is very little water to drink. Saltwater oceans make up 97 per cent of the water on Earth. Glaciers at our polar caps lock up two per cent of our fresh water. Seven billion people and millions of animal species share just one per cent of the water available on our planet. With climate change savaging weather systems and our population rising, scientists and engineers are struggling to find local solutions for the global water problem.

England could run short of water within 25 years

‘Livelihoods are at stake’: Senate under pressure to overhaul controversial Bill C-69

Industry lobbying senators for changes to proposed environmental assessment laws


Opponents of the Kinder Morgan oil pipeline protest outside a Liberal Party fundraising event in Vancouver, B.C. Industry groups representing virtually every natural resources sector in Canada are warning the government’s environmental assessment overhaul needs a major overhaul. (Ben Nelms/Reuters)

The federal Liberal government’s controversial overhaul of environmental assessment legislation has united virtually every major natural resources industry association in opposition — and they’re asking the Senate committee studying Bill C-69 to make some fixes to avoid threatening the viability of key sectors of the economy.

Amid the barrage of criticism, the government itself has recognized it may have to agree to some tweaks to get the legislation — expected to be one of the last major pieces of the Liberal agenda to pass before the fall election — through the Red Chamber.

Speaking last week at an event for Canada’s mining companies — one of the few sectors that has offered support for the elimination of some federal and provincial regulatory duplication in Bill C-69 — Trudeau thanked miners for their “measured” approach to the legislation.

“Quite frankly, [a] number of thoughtful submissions and amendments to that, to improve it, [came] from this industry,” Trudeau said.

Since the Senate began its study of Bill C-69 last month, however, industry representatives from the oil and gas, hydro, nuclear and uranium sectors have appeared before the energy committee with a long list of suggested amendments. Rather than a few tweaks, these industries are proposing major rewrites. MORE

Bill C-69 is our chance to level up Canada’s environmental laws, and we can’t afford to miss it

Parliament buildings (Photo: Shane Zurbrigg via Flickr)

Canadians depend on the federal government to safeguard our families, our health and the environment from pollution, toxic contamination and other potential harms. But in 2012, our environmental safety net was drastically weakened, leaving Canadians with toothless laws and flawed decision-making processes that put the environment and public at risk.

Right now, we have a chance to rebuild and strengthen these fundamental legal protections, through the legislative changes contained in Bill C-69. The Impact Assessment Act proposed in the bill will be a much-needed replacement for Canada’s existing assessment law—a law that isn’t working for the environment, communities or project proponents, as we’ve seen repeatedly in recent years.

Unfortunately, a small but vocal group of opponents is attempting to kill Bill C-69 as it works its way through the Senate. The majority of criticism comes from groups based in Alberta or connected to the oil patch—such as the convoy that rolled into Ottawa this week spreading divisive messages about everything from pipelines to immigration. Most of the critiques aimed at Bill C-69 are misleading, and many are blatantly false.

And while detractors hint at widespread controversy over the bill, recent polling paints a very different picture. The latest nationwide poll by Abacus Data found that 63 per cent of Canadians who are aware of Bill C-69 agree that it is a step in the right direction. MORE