Ottawa’s new environmental assessment process creates more confusion and future strife

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Appeared in the Globe and Mail, July 9, 2019
Ottawa’s new environmental assessment process creates more confusion and future strife

In the politically loud June run-up to the passage of Bill C-69—which overhauls the federal environmental-impact assessment process through what is now Canada’s Impact Assessment Act—a group of premiers wrote to Prime Minister Justin Trudeau. They complained about the act’s potentially sweeping powers and the risk of provoking a constitutional crisis, then asked that the government accept amendments then on the table.

Prime Minister Trudeau, with apparently unintentional humour, responded that the premiers were being divisive by having said anything about it. But the premiers had a good point. The next Parliament would be wise to address their issues with another look at the act, with amendments that would improve clarity and limit fresh incursions on provincial responsibilities—since the federal government seems intent on injecting uncertainty over the constitutional law that holds our federation together.

The conflict, at its core, revolves around our Constitution’s 1867 framework, which divvies up federal and provincial powers and responsibilities. This division and the arguments it generates are good things, because when courts are strict in how they interpret the division, they defend our freedoms.

Quebec’s 1937 “padlock law” made it illegal to use any building “to propagate communism or bolshevism by any means whatsoever.” When Canada’s Supreme Court overrode the law in 1959 as an unconstitutional provincial incursion on criminal matters, many Quebeckers saw it as British imperialism, but most, including the Court, saw it as a win for freedom of expression. The Court’s decision depended on clarity in provincial versus federal powers.

The question of how natural resources should be developed within a province, and whether they should be, is undoubtedly within the given province’s constitutional domain. When transporting the product means crossing provincial or international borders—for example, through transmission lines or pipelines—the federal government has the final say. Ottawa can order the building of a pipeline or transmission line, even if a province doesn’t want it. And when it comes to environmental matters, responsibility is shared.

There’s the rub. The new act hands the federal government authority and discretion over which projects get designated for review, under what criteria, by whom and when. The word “may” appears many hundreds of times, as in, “The Governor in Council may, by order…” add or remove any environmental, health, social or economic matter on the list of review criteria. The criteria could be absolutely anything.

The act’s review requirements could apply to just about any project, other than on lands subject to a land claims agreement, so some First Nations projects would get a bye. Amendments proposed by the Senate would have excluded the construction or expansion of in situ oilsands extraction operations and excluded wind and solar projects. It’s not surprising that cabinet rejected the first idea, and probably for the better that they rejected the second.

Another rejected amendment would have excluded “greenhouse gas emissions generated from another physical activity or designated project located downstream from the designated project” from the review criteria. If you are proposing a natural gas pipeline, others may have standing to object on the basis that the gas feeds some other activity that emits carbon dioxide.

Cabinet also rejected amendments imposing shorter and firmer timelines on various approval stages. A long process is one thing, but embedding uncertainty about a decision timeline into the law is bound to further chill investment proposals.

And cabinet rejected the Senate’s simple proposal to mitigate the act’s stress on national unity, which was to make explicit that nothing in the act would alter provincial environmental protection law—suggesting Ottawa is intent on overriding provincial environment law.

Admittedly, Ottawa could override just about anything through amendments to the Criminal Code, but that would be heavy-handed and messy. From Ottawa’s perspective, it would be better to wield the hammer through environmental law.

While cabinet accepted some of the Senate’s amendments, none would have reined in the act’s potential jurisdictional mischief. And in choosing what to put in the new act and what to leave out, the federal government has signalled more regional conflict over environmental matters—and that few pipelines or much else will be built for a long time.

The premiers and the Opposition are right to cry foul. But whoever forms the next government should be aware that some easy and non-embarrassing fixes to the new act are readily available. And changes should be made, if we want much to ever be built in our energy-resource sector.

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