The Harper government is giving a wide range of new powers to cabinet ministers to decide the scope of environmental assessments, as it proceeds with an omnibus budget bill that overhauls the way Ottawa will review major resource projects.
Natural Resources Minister Joe Oliver has promoted the legislative changes as providing greater certainty to investors keen to develop Canada’s vast resources. But in some major ways, the government will make the system more opaque and subject to ministerial discretion.
The March budget and resulting legislation is as much about speeding up decision-making on resource projects like oil sands pipelines and new mines across the country, as it is about government finances.
Conservative House Leader Peter Van Loan confirmed Wednesday the government will not split the budget bill as opposition have demanded, but will send the environmental amendments to a special subcommittee.
The 430-page budget bill contains 170 pages of amendments on environmental assessment – not counting a few sections aimed at environmental charities – and amends a half dozen laws, including the National Energy Board Act, the Canadian Environmental Assessment Act, the Fisheries Act and the Species at Risk Act.
Regulation and discretion
An overall trend is to remove specific rules in the various acts, and replace them with regulation, which is easier to change, and ministerial discretion.
The bill will also allow Ottawa to shift responsibility for environmental assessments to the provinces, eliminate reviews for small projects and impose new penalties on companies that fail to complete mitigation measures ordered by regulators.
Ministers will have new discretion to decide what gets reviewed by whom and the scope of those reviews, including whether a fish species is important enough to warrant consideration.
“Discretion does require trust,” said Brenda Kenny, president of the Canadian Energy Pipelines Association and former staffer at the National Energy Board.
“But if you have a very rigid regime, it does not guarantee you are going to be spending the right amount of time on the right things.”
Who reviews what and for how long?
The legislation completes a shift that the government began in previous bills to transfer environmental assessment of pipeline projects to the National Energy Board and nuclear projects to the Canadian Nuclear Safety Commission from the Canadian Environment Assessment Agency (CEAA).
The agency will still be responsible for environmental assessment of developments like oil-sands projects and mines.
At the same time, departments and agencies that are participants in the reviews will no longer have decision-making powers, but will essentially serve as consultants for the three key agencies.
The agencies will also face new timelines, including 18 months for an NEB hearing, and 24 months for a full panel under the CEAA. The clock, however, does not start ticking until a company has satisfied the regulator that it has completed its environmental impact statement.
Stewart Elgie, an environmental lawyer at the University of Ottawa, said that, while there is a need for deadlines, strict timelines ignore that some projects are far more complicated than others, and thus deserve greater scrutiny and opportunity for public comment.
He noted that the Northern Gateway pipeline crosses mountain ranges, hundreds of waterways and dozens of first nations communities. The pipeline project will fall under the new assessment rules, though the government has not yet indicated how it will impose a new regime on a hearing process that is already under way.
What triggers a review and who determines its scope
Opposition MPs and many environmentalists agree that steps can be taken to eliminate assessments for small projects that have negligible impact. But they argue the government’s approach is overkill.
Under the Fisheries Act, for example, federal officials must review projects that can be expected to have an adverse impact on fish habitats. The omnibus bill would change that so reviews are completed only on projects that would impact important species – those valuable for commercial, recreation or first nations purposes – and the smaller species on which those important ones depend.
“There is the potential for things to fall through the gaps,” said Rachel Forbes, staff lawyer with the B.C. group EcoJustice. “The previous CEAA operated on the principle that ‘everything is being assessed unless it is excluded.’ Now, they’ve reversed that so nothing is being assessed unless it is specifically included.”
Ministers will also have discretion to define the scope of an environmental review – assessing the impact on migratory birds, for example, but not local species.
Policing the opposition
The budget bill also targets environmental groups by eliminating their ability to address environmental-assessment hearings unless they are directly impacted by the project or have specialized knowledge sought by the panel.
The legislation will force charities to provide more information on foreign funding that is aimed at political advocacy. Currently, charities must report foreign funding, and they must report spending on political activity, but they don’t have to track who, specifically, provides funds for advocacy.
Many charities, including Vancouver-based Tides Canada, say the changes won’t alter their funding practices, so long as the rules as to what constitute “political activity” are not changed. However, one group, ForestEthics, which was funded by Tides Canada, has set up a separate political advocacy group to protect the charitable status of its research and education arm.