Readers familiar with the former Harper Government’s series of omnibus bills — the ones that gutted so many important environmental protections back in 2012 — are no doubt pleased that the federal government is now reviewing a number of the environmental and regulatory processes that were affected.
Luckily, our friends at the Environmental Law Centre have recently published a “Review of Reviews,” providing an overview of the four reports that have been issued to date, covering the federal environmental assessment process, the National Energy Board, the Fisheries Act, and the Navigation Protection Act. Here are some of the highlights.
Environmental Assessment Process
The backstory
In 2012, the Canadian Environmental Assessment Act, 2012 was put into place. This Act reduced both the number of federal environmental assessments required and their scope. It included unrealistically short timelines for the review of documents, reduced the number of projects that were subject to review, and gave the political realm more responsibility over assessment decision making.
What was recommended?
In April, the federally-appointed Review Panel released the EA Report, which made a number of recommendations for improving the federal environmental assessment process. Some of the highlights include:
- Sustainability should be central to impact assessment (IA) and the decision to proceed with a project should be based upon that project’s contribution to sustainability;
- Public participation is identified as a “key element” in IA processes and therefore legislation should enable early and ongoing public participation, along with a participant funding program that is commensurate with meaningful participation;
- Where multiple IA processes apply, the primary mechanism for coordination should be cooperation, and substitutions should be available only on the condition that the highest standard of IA will apply;
- There will be three phases to a project IA: planning phase (resulting in a conduct of assessment agreement), a study phase (completion of the studies outlined in the conduct of assessment agreement), and a decision phase (resulting in a decision statement with clear, outcome-based conditions along with mandatory monitoring and follow-up programs).
If implemented, the recommendations made in the EA Report would result in improved and sustainably-focused federal environmental assessment laws and processes.
National Energy Board
The backstory
The National Energy Board, or NEB, is responsible for the regulation of oil and gas pipelines that cross provincial or international borders. Prior to 2012, the NEB was the only entity responsible for determining if a proposed project was in the public interest and either approve or deny the application. Now, the NEB takes a recommendation to the federal cabinet, who then make the final decision. What’s more, the NEB became responsible for conducting the environmental assessments of proposed projects, and strict timelines were put in place for conducting environmental assessments and for the approval processes.
What was recommended?
A number of recommendations designed to address these concerns were made in the NEB Report, released in May. One key recommendation is that the NEB be restructured into two separate bodies:
- A new, independent Canadian Energy Information Agency, separate from both policy and regulatory functions, accountable for providing decision-makers and the public with critical energy data, information, and analysis.
- A modern Canadian Energy Transmission Commission, which would replace the National Energy Board, governed by a Board of Directors, with decisions rendered by a separate group of Hearing Commissioners.
For those interested, the government is accepting comments on this report until June 14, 2017.
Fisheries Act
The backstory
In 2012, Canada saw the replacement of the established HADD provision (prohibition against harmful alteration, disruption or destruction of fish habitat) with a weaker version against causing harm to fish. The protections offered by the Fisheries Act were also narrowed to include only commercial, recreational or Aboriginal fisheries, as opposed to all fish habitat.
What was recommended?
In February, the Standing Committee on Fisheries and Oceans issued its Fisheries Report. Some of the key recommendations include:
- Reinstatement of the HADD provision and removal of the concept of serious harm to fish from the act;
- Take an ecosystem approach to protection and restoration of fish habitat by adopting sustainability principles, protecting the ecological integrity of fish habitat and protecting key areas of fish habitat;
- Expand the HADD provision to all ocean and natural freshwater habitats to ensure healthy biodiversity;
- Clearly define “fish habitat” and the parameters of what is considered a violation of the act.
The Standing Committee indicated that “the proposed amendments included in this report reflect the values of ecosystem-based management, sustainable development, the precautionary principle and co-management in addressing fish habitat protection and fisheries management.”
Navigation Protection Act
The backstory
In 2012, the Navigable Waters Protection Act was renamed the Navigation Protection Act and in doing so its scope was dramatically reduced. Rather than a universal application to all navigable waters in Canada, the act became applicable to only 164 waterways, which represent less than one per cent of all waterways in the country. Changes also excluded the new Navigation Protection Act from federal environmental assessment processes.
What was recommended?
The Standing Committee issued its report entitled A Study of the Navigation Protection Act in March. Essentially, the committee recommended that the changes implemented in 2012 remain in place:
- Maintain the Schedule but rapidly improve the process of adding waterways to the Schedule by making it easily accessible, easy to use, and transparent, and put a public awareness campaign in place to inform stakeholders of the process.
It was also recommended that Transport Canada be involved in the decision-making process for environmental assessments of pipelines and electrical transmission lines that cross navigable waters.