Federal Government Opens Door to Paradigm Shift in Environmental Assessment

June 21, 2016 | By admin | Filed in: Environmental Assessment.

No less than six Cabinet ministers stood in the foyer of the
House of Commons yesterday to announce sweeping reviews of key
environmental laws. The details are not clear yet – in fact,
the government has (perhaps wisely) asked for public input
before it finalizes the review processes – but it is clear that
there is an opportunity to not only undo the damage that the
Harper government had done to environmental assessment and the
protection of fish and fish habitat, but to go much further and
fundamentally change our approach to environmental planning and
industrial development.

The federal government has announced that the Fisheries
and the Navigation Protection Act will be
reviewed by the relevant Parliamentary Committees once
Parliament resumes sitting on September 19, while the
Canadian Environmental Assessment Act and the
National Energy Board Act will be reviewed by
independent panels. The various reviews will have to be
coordinated, since these laws are quite closely related. The
ministries involved are:

  • Fisheries and Oceans
  • Environment and Climate Change
  • Transport
  • Science and Innovation
  • Indigenous and Northern Affairs
  • Natural Resources

Perhaps wisely, the government did not announce the panels
themselves, but rather opened a 30-day consultation with the
public before it makes any final determinations on the panels’
mandates and membership. Comments will be accepted at http://canada.ca/environmentalreviews
until July 20. Once they have been named, both expert panels
will travel the country and “consult broadly with Indigenous
peoples and the public,” reporting back in early 2017. Their
recommendations will then feed into the legislative process, as
new legislation will have to be drafted and reviewed before
becoming law – before the next federal election in 2019.

In addition, the panel reviewing the Canadian Environmental
Assessment Act
will receive advice from an expert
“multi-interest advisory committee” made up of Indigenous,
industry, and environmental group representatives.

Thirty years after the Brundtland Commission report,
decision-makers in government and industry still struggle with
the concept of sustainability – but reality has overtaken them;
green economies are quietly leaving extraction and exploitation
behind. While business leaders and politicians still talk about
‘trading off’ jobs and the environment in destructive
development, more jobs are being created in more sustainable
fields like alternative energy, where economic development
actually helps the environment. We finally have an opportunity
to catch up, and build an environmental assessment framework
based on sustainability rather than just ‘managing and
mitigating’ environmental destruction and human harm – a “next
generation” of environmental assessment, or better yet,
sustainability assessment.

We’re obviously excited about this possibility, but we’re also
very concerned that this opportunity not be lost – or stolen by
industry groups focused only on short term profit, who still
have massive political clout. The review process has to reflect
the incredible advances in the theory and practice of
environmental and social impact assessment over the past couple
of decades, but it also has to respond to the very real
concerns of the public. It also has to acknowledge the place of
Indigenous peoples in implementing their own decision-making
processes under their sovereign right to free, prior, informed
consent, recognised by the federal government through the
United Nations Declaration on Indigenous Peoples.

We’re also deeply concerned that the government is essentially
allowing the status quo to continue until new legislation is in
place. No projects will be deferred, and the “interim measures”
that the federal government introduced in January for pipeline
reviews have been
as inadequate, unclear, and unaccountable. While

Elizabeth May
has pressed to simply repeal the
Conservatives’ 2012 Bills C-38 and C-45, this would have thrown
work on the reviews back to agencies like the Department of
Fisheries and Oceans that no longer have the staff expertise
and capacity to do it – also thanks in large part to the
previous Conservative government. Nonetheless, if the
government is serious about “rebuilding trust” in the process,
it will have to take a much more cautious approach. It may seem
to add dreaded “uncertainty” for proponents and investors, but
let’s be honest – there’s precious little certainty already,
whether in the markets and project finance, or in getting
government approvals that aren’t worth the paper they’re
printed on.

Even industry proponents who quite like the existing system
have recognised it doesn’t work – they can get permits to build
their projects, all right, but they can’t get a “social
licence” because the public and Indigenous peoples, having been
essentially cut out of the review process, won’t allow them to
proceed, whether by legal action – or direct action.

There are some very obvious basic steps that need to be taken,
such as getting the National Energy Board and the Canadian
Nuclear Safety Commission out of the business of doing public
reviews, which they clearly can’t do, and focus on doing
whatever it is that they’re good at. (On the other hand, they
both suffer from incompetence and industry capture, so maybe
they should just focus on learning how to do basic regulation.)

But we have before us something much bigger. Whether for the
sake of public credibility, scientific integrity, or respectful
relations with Indigenous peoples, an ambitious and visionary
redefinition of environmental impact assessment for Canada is
more than an opportunity at this point. It is a necessity.

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