New environmental reforms show promise, yet leave a lot to be desired

In early 2018, the Canadian federal government introduced a suite of new environmental legislation. This legislation provides for some welcome changes to the Canadian environmental landscape while leaving a lot to be desired.

A significant change to current legislation is the tabling of Bill C-69. Bill C-69, to be named the Impact Assessment Act, has been enacted to replace the Canadian Environmental Assessment Act and the Canadian Energy Regulator Act, as well as to amend the Navigation Protection Act (renamed the Canadian Navigable Waters Act).

Other changes that we will see are the replacement of the National Energy Board Act by The Canadian Energy Regulator Act, while the Fisheries Act keeps its name and welcomes some positive changes. With all these replacements and name changes, what does it mean?

The Good

The Impact Assessment Act brings about welcome changes to current federal Canadian environmental agencies. These include increased transparency by requiring the Minister and Cabinet to provide reasons for environmental approvals, as well as to streamline the process of project reviews by providing for a guaranteed government decision within two years of each major project proposal.

Bill C-69 helps to restore credibility, and public trust after the debacle of the Kinder-Morgan Pipeline, in which calls for collusion were made.

The new Canadian Navigable Waters Act will increase the scope of Ministerial powers. The Minister will be able to order that any person who obstructs or potentially obstructs a navigable water to repair, secure, move, remove, dismantle or destroy it in the manner that the Minister would consider appropriate.

The Fisheries Act aims to restore environmental protections that were removed by the previous government. The Stephen Harper government removed protections against “harmful alteration, disruption or destruction” of fish habitat, stating that it was burdensome red tape. The improved legislation will see this prohibition reinstated.

The Fisheries Act will also help to reconcile relations with Indigenous people further. The new legislation will provide the Minister with authority to enter into agreements, or consult with, Indigenous governing bodies. The Minister must also consider any adverse effects that a decision will play on the constitutional rights of Indigenous peoples, and must factor in any traditional knowledge provided by Indigenous peoples to consider habitat decisions.

Needs Improvement

While the Impact Assessment Act aims to increase transparency and streamline the review process, it does so with limitations. For a project to be eligible for review, the Impact Assessment Act maintains current legislation by requiring projects to be “major” and provides for discretion to exempt “non-major” projects from review. This discretion means that projects may be dismissed or approved without adequately considering the proper environmental considerations and impacts being adequately considered.

The Canadian Energy Regulator Act will replace The National Energy Board Act, but with moderate changes. The National Energy Board Act was primarily responsible for the debacle of the Kinder-Morgan Pipeline, and the new regulations fail to set in place an independent task agency to review environmental assessments – which was a key ask in the Environmental and Regulatory Review: Discussion Paper.

This leaves things as they are in which there are currently three agencies responsible for environmental assessments:

  • The National Energy Board (NEB)
  • The Canadian Nuclear Safety Commission (CNSC)
  • The Canadian Environmental Agency (CEA)

The Navigation Protection Act shows to be the most disappointing new legislation yet. The bill expands the number of waters reviewed for potential obstructions of navigation. However, there seems to be no consideration of the environment when it comes to navigation reviews.

While the Fisheries Act shows much promise, the Minister holds a lot of discretion as to taking precautionary and ecosystem approaches to decision-making. These should not be left up to discretion, but be made into legal requirements of the Minister.

What’s Next?

Now that the proposed legislation has completed its first reading, the second reading is now being undergone in Parliament. Next, we would like to see the proposed bill strengthened by seeing elements of the Ministers discretion in various areas become legal requirements.

This will ensure stronger legislation and environmental protections for Canadians and the environment.

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