Earlier this month, the Senate Standing Committee on Energy, the Environment and Natural Resources passed 187 amendments to Bill C-69, the federal government’s attempt to restore some credibility to, and public trust in, Canada’s environmental assessment regime for major projects following its near-dismantling in 2012. Unfortunately, some of the amendments will undermine the rigour and effectiveness of the assessment process. The proposed changes to the Bill should be rejected by the Senate or, if necessary, by the House of Commons when it returns to that chamber.

For example, one amendment would require that a major project’s impacts on the environment and climate change be considered “on a global level.” Of course, under that rubric the impact of every project would be deemed insignificant (as Shell Canada argued with respect to the greenhouse gas emissions associated with its Jackpine oil sands mine expansion project).

Another amendment would require the proposed impact assessment agency, when requesting information and studies from project proponents, to respect some hitherto unknown “principle of proportionality.” The proportionality would be measured between the time and money required by such studies and the “nature and complexity of the project.”

If Bill C-69’s critics are truly concerned about new and uncertain terms contained in the legislation, it is hard to imagine a more uncertain provision that to my knowledge has no precedent in other countries’ environmental assessment regimes. What is the correct proportion between a project’s assessment costs and its potential impacts? How are these to be weighed, bearing in mind the difficulty in quantifying environmental benefits and values? In addition to this idea of proportionality being ambiguous, it is also bound to generate conflict, litigation and delay. Proponents will balk at every additional study or information request, claiming disproportionality. If adopted, this provision would become a major pinch point in every contentious assessment.

When considering the provisions in a piece of legislation like C-69, it is useful to ask, “What problem is this attempting to solve?” For example, the inclusion of Canada’s climate change commitments as a factor for consideration in major resource projects addresses a long-standing deficiency in the assessment process. Similarly, assessing a project’s contributions to “sustainability” is meant to address the reality that focusing exclusively on avoiding “significant adverse environmental effects” is a bad proxy for identifying and encouraging projects with lasting benefits. And a “duty of scientific integrity, honesty, objectivity, thoroughness and accuracy,” added unanimously to Bill C-69 by the House Standing Committee on Environment and Sustainable Development, is meant to address the documented lack of scientific rigour in Canada’s assessment regime.

But what problem is the Senate trying to solve by adding a requirement that the global impact of a project be considered? Keep in mind that the existing federal assessment regime already has a 95 percent approval rate for projects since 2012 (including projects with significant GHG emissions, such as the Pacific NorthWest LNG project).

What problem is a “principle of proportionality” intended to solve? Presumably, a problem of the agency making outlandish demands for further studies and information. But this problem does not exist. The opposite is true: proponents regularly resist further information requests and studies without consequence, with predictable results.

All of this brings me to a second, broader point. Such amendments betray a fundamental misunderstanding about Canada’s environmental laws and policies: a belief that they are somehow sufficient to the task. This misunderstanding has led to scale-backs of environmental protections, as was done by the previous federal Conservative government in 2012 and as is now being done by the current Ontario government.

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The reality about our environmental protection regime is the opposite: while some federal and provincial environmental laws may look good on paper, their actual implementation and effectiveness tell a different story. Objective comparisons tend to rank Canada poorly among peer countries: in 2016, the Conference Board of Canada gave Canada a “D” in its environment report card, ranking it 14th out of 16 similar countries. Even broader international comparisons do not rank Canada highly; Yale’s Environmental Performance Index (2018) placed Canada 25th out of 180 countries.

Admittedly, international comparisons are difficult. More accurate and useful are the various federal and provincial auditor general reports that regularly assess our regulatory regimes. Federally, the Commissioner for the Environment and Sustainable Development has reported that departments and agencies don’t have a handle on environmental liabilities; on whether companies are in compliance with Canada’s environmental laws or taking corrective measures in those rare instances where noncompliance has been identified; on how much fish habitat is being lost in Canada on an annual basis; and on assessing and managing cumulative effects in the oil sands region, to name but a few.

The same is true provincially. In the wake of the Mount Polley spill, British Columbia’s auditor general found the province’s mine monitoring and inspection activities to be inadequate, and Alberta’s auditor general has repeatedly raised concerns over that province’s environmental liabilities policy. In a recent and unprecedented collaborative effort, federal and provincial auditor generals also found that “most governments in Canada were not on track to meet their commitments to reducing greenhouse gas emissions and were not ready for the impacts of a changing climate.”

Then there is the peer-reviewed research: a review of 10 recent environmental impact assessments in BC found that professionals hired by resource companies generally find ways to diminish the significance of health and environmental impacts. Another study that looked at 30 different assessments filed in the oil sands region between 2004 and 2017 found that each assessment considered different factors in different ways, and few independently checked their conclusions, but those that did were notably less confident about the industry’s ability to restore what it had disturbed. My own research has shown that, under the guise of taking an “adaptive management” approach (essentially learning by doing), industry and regulators will often punt the identification of effective mitigation measures down the road, but then fail to commit the resources and do the work required by this approach.

Recent reports say Canada is warming at twice the rate of the rest of the world, and that globally biodiversity is declining faster than at any time in human history. Viewed this way, many of the Senate committee’s proposed amendments appear entirely divorced from Canada’s ecological — and economic — reality, and should be rejected.

Photo: Shutterstock/By Oleg Mayorov

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Martin Olszynski
Martin Olszynski is an assistant professor in the University of Calgary’s Faculty of Law. Previously he was counsel with the federal Department of Justice, practicing environmental and natural resources law in the legal services unit at Fisheries and Oceans Canada (2007-13).

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