For the second year running, the Conservative government has proposed a major weakening of Canada’s environmental laws under cover of omnibus legislation to implement the federal budget.
The March 2009 budget implementation statute included amendments to the Navigable Waters Protection Act that had the effect (combined with other regulatory changes) of eliminating thousands of assessments that helped to ensure proposed developments such as dams and bridges are environmentally sustainable.
These amendments were clearly not related to the budget. Further, they received little public or parliamentary discussion, partly because of the perceived urgency to spend federal money quickly on infrastructure projects to stimulate the flagging Canadian economy.
The Senate finance committee denounced the use of omnibus legislation for budget implementation in a report commenting on the 2009 budget, and urged the government to cease and desist. But Prime Minister Stephen Harper and Finance Minister Jim Flaherty ignored that advice for the 2010 budget, even without an economic stimulus package to hide behind.
Bill C-9, the omnibus bill to implement the 2010 budget, further weakens federal environmental law, amending the Canadian Environmental Assessment Act and regulations to:
• allow the minister of Environment to avoid doing detailed environmental assessments on large projects by breaking them up into smaller pieces. A tarsands mine can now be “scoped” down to a stream crossing for the purposes of federal environmental assessment;
• exempt from environmental assessment a host of federally funded infrastructure projects by operation of statute; and
• hand over public panel reviews for pipeline and nuclear energy projects from the Canadian Environmental Assessment Agency to the National Energy Board and the Canadian Nuclear Safety Commission, respectively.
The Commons finance committee had the unenviable task of reviewing the mammoth — several thousand sections — C-9 over the course of a few weeks. In the end, the committee chose to recommend no changes to the bill in its report back to the Commons despite the protestations of Ecojustice Canada and other witnesses that the CEAA amendments be referred to the Commons environment committee.
The 2010 CEAA amendment overturned the Supreme Court of Canada decision in the Red Chris Development Co. Ltd. mine case, MiningWatch Canada v. Canada (Fisheries and Oceans), and short-circuited another Ecojustice judicial review application arguing that two 2009 CEAA regulations are unlawful. The government’s approach seems to be: when you do something unlawful, simply change the law.
Why is the government weakening federal environmental law through quick-and-dirty amendments in budget bills?
The Conservative government’s unstated policy seems to be to let the provinces manage natural resource development without public discussion on, or federal nagging about, climate change, pollution, and biodiversity.
Unfortunately, many provinces have also been quietly downsizing their environmental assessment laws for years. Ontario just exempted from its process a major proposed cars-and-trucks bridge crossing the Ottawa River, and Alberta continues to ramp up tarsands mines and coal-fired generating plants using its process as a fig leaf for business as usual.
Politically, omnibus budget legislation has been convenient in this minority Parliament because it tied the hands of Liberal leader Michael Ignatieff. His Liberals could not vote against any budget provision without triggering another election.
Saving Canada’s environmental laws does not hold a candle to Ignatieff’s political survival. And Harper knows it.
Still, gutting key environmental laws without serious public discussion and parliamentary debate is undemocratic and dangerous to the health of Canadian communities and ecosystems. (Let’s remember that the exemption from environmental assessment of BP’s drilling contributed to the Gulf of Mexico oil spill.) It would be helpful if all of the opposition party leaders would say so publicly — the prime minister too if he could see the error of his ways.
There is no doubt the Canadian Environmental Assessment Act needs reform. As it happens, the Commons environment committee is starting the mandatory seven-year review of this law within months. The environment committee is surely a better forum than the finance committee to discuss legislative reform comprehensively, in order to improve CEAA’s effectiveness and efficiency and ensure that key federal environmental priorities such as climate change are addressed.
Of course, the finance committee did not stand up to the government in either 2009 or 2010. Both budget implementation bills sailed through the committee and Commons without touching the provisions that gut environmental law. Now it falls to the environmental committee to do a proper job in the CEAA seven-year review. Or will this review be conveniently sidelined by the government as well?
Stephen Hazell is an Ecojustice Canada lawyer and former executive director of Sierra Club Canada.