This bill is tragic because we could do better and we used to do better

On Thursday, June 7th, 2018 in Debate, Environmental Assessment, Parliament

Elizabeth May

Madam Speaker, I rise this morning to speak of a really terrible tragedy, which is the destruction of environmental law in this country, how it was done in 2012, and how the current government, despite promises, has failed to repair the damage. I do not enjoy watching a government make mistakes, even if they cost them it in the next election. I do not enjoy saying that the Prime Minister made a promise and now has broken another promise.

It is tragic because we could do better and we used to do better. I will briefly cover the history of environmental assessment in this country and why this bill is not acceptable as it currently stands. It could be made acceptable by accepting a lot of the amendments, particularly those put forward by the member for Edmonton Strathcona and by me. This bill is an omnibus bill that attempts to repair the damage, but first let us look at what was damaged.

Starting back in the early 1970s, the federal Government of Canada embarked on a commitment to environmental assessment. We were late, later than the U.S. government under Richard Nixon, which brought in something called the National Environmental Policy Act, which remains to this day far superior to Canadian law on environmental review.

By fluke, I actually participated in the very first panel review of environmental assessment in Canada in 1976. When I walked into the high school gym in Baddeck, Nova Scotia, I had no idea that it was the first time there had been a public panel review of a project, but the Wreck Cove hydroelectric plant on Cape Breton Island was the first. I participated in environmental reviews thereafter as a senior policy adviser to the federal minister of environment from 1986 to 1988.

I worked with the Canadian Environmental Assessment Agency and its then head, the late Ray Robinson, on getting permission to take the guidelines order, which was a cabinet order for environmental review, and to strengthen it by creating an environmental law, the Canadian Environmental Assessment Act, which was brought in under former prime minister Brian Mulroney and received royal assent under former prime minister Jean Chrétien.

That bill made it very clear, as did the previous guidelines order from 1973 onwards, that any time federal jurisdiction was affected, the government had an obligation to do an environmental review. Since the early guidelines order of the 1970s, federal jurisdiction was described as federal money, federal land. Any time federal jurisdiction, which over time was narrowed down to decisions made by federal ministers under certain bills, or any of those triggers were set off, there had to be at least a cursory screening of the projects. That was the state of environmental law, with many improvements, from the early 1970s until 2012.

The previous government, under Stephen Harper, brought in amendments in 2010. I certainly know that the committee heard from industry witnesses, the Mining Association of Canada in particular, that it thought everything was just about perfect in 2010. There was an attempt to avoid duplication, there was one project one assessment, early screening, and comprehensive study. Everybody knew what was happening.

Then in the spring of 2012, the previous government brought in Bill C-38. It was an omnibus bill. It changed 70 different laws in over 430 pages. When the Conservatives complain of lack of consultation on this one, they are right. However, they are in a glass house, and anyone who fought Bill C-38 has a huge pile of stones, because there was no consultation. We did not have briefings and the government did not accept a single amendment between first reading and royal assent. That bill repealed the Canadian Environmental Assessment Act brought in under former prime minister Brian Mulroney, and it devastated the prospect of any environmental review in this country when federal jurisdiction was impacted, unless it was a big project on a short list. That is the easiest way for me to explain what happened.

The Conservatives changed the triggers by eliminating federal land, federal money, and federal jurisdiction. They just said that if it were a big project, and this is their short list, then they would do a review, but would exclude most of the public and keep the review fast. This was a Harper invention, and it was really diabolical to say that when it were an environmental assessment of a pipeline, the Environmental Assessment Agency would not run it, but the National Energy Board; that when it were an environmental assessment of a nuclear project, it would be run by the Canadian Nuclear Safety Commission; and that if it were an environmental assessment of drilling on the offshore in Atlantic Canada and off Newfoundland, it would be the Canada-Newfoundland Labrador Offshore Petroleum Board, and if it were off Nova Scotia, it would be the Canada-Nova Scotia Offshore Petroleum Board. This collective, which I will now refer to as the “energy regulators”, had never played a role in environmental assessment before. They are part of what was broken in Bill C-38.

My hon. friend from Lakeland wants to know why the Kinder Morgan mess is such a mess. It goes back to that assessment being handed to an agency not competent to do it, and giving it very short timelines, which forced Kinder Morgan to say that it could no longer respect procedural fairness even for the few intervenors it let in the door because of the timeline. The attitude was that we have cut out cross-examination of expert witnesses; we have to move this thing fast; we are just going to barrel through and ignore most of the evidence because of the short timeline. The mess that this country is in right now over Kinder Morgan can be layed directly at the door of Bill C-38 in the spring of 2012.

This legislation should have repaired all of that damage. That was a promise in the Liberal platform and the commitment in the mandate letter to ministers. What do we have now? We have an omnibus bill that deals with the impact assessment piece, that deals with the National Energy Board, to be renamed the Canadian energy regulator, and deals with the disaster that happened in Bill C-45 in the fall of 2012 when the government of the day gutted the Navigable Waters Protection Act.

These three pieces of legislation are fundamental to environmental law in this country and to energy policy, and they all need fixing, but should not be fixed in one omnibus bill.

I completely agree with the member for Lakeland that this legislation was forced through committee, but it was forced through the wrong committee. The environmental assessment piece should have gone to the environment committee. The NEB/Canadian energy regulator piece should have gone to natural resources committee. The Navigable Waters Protection Act piece should have gone to transport committee.

The omnibus bill in front of us, Bill C-69, has been inadequately studied despite heroic efforts by the chair of the environment and sustainable development committee. She did a great job. The government committee members worked really hard to improve the bill, but no members had enough time. We had a deadline. A hammer fell at 9 o’clock at night on the last chance to look at it. By 12:30 in the morning, most of the amendments that were accepted were never debated at committee, much less adequately studied. It is a tragedy.

Here is how “Harper-think” has survived and owns Bill C-69 in terms of environmental assessment. We have not restored the triggers. Federal funding of a project no longer triggers an environmental review, full stop. Federal lands still do, but federal jurisdiction decisions made by the Minister of Fisheries on the Fisheries Act do not trigger an environmental assessment. Decisions made by the Minister of Transport under the Navigable Waters Act do not trigger an environmental assessment. It will again be on the short list of big projects that we have still not seen because it is under consultation. The triggers are inadequate.

The scope of the reviews will move from there being about 4,000 to 5,000 projects a year being at least given a cursory review in the pre-2012 period to the current situation bequeathed to us by former prime minister Stephen Harper of a couple of dozen a year.

I should mention that there were two expert panels, one on the NEB and one on environmental assessment. Huge consultations were carried out. The speeches by the Liberals will probably reference the enormous level of consultation that took place before this legislation came out. It needs to be said on the record that the advice of the expert panels was ignored in both cases.

In terms of environmental assessment, what was ignored was the call to go back to the same triggers we have had since 1974: federal land, federal money, federal jurisdiction. The Liberals did not pay attention to that recommendation. They claim to have taken into account the recommendation that it be a single agency, but the bill says that when the impact assessment agency sets out a panel review in the case of a pipeline, the members of the Canadian energy regulator, which was the NEB, have to be on that panel.

More egregiously, despite the amendments accepted in committee, the government has rejected the one that says if it is the Canada-Nova Scotia Offshore Petroleum Board or the Canada-Newfoundland and Labrador Offshore Petroleum, board member of the panel can also sit as chairs. Only in those two instances were the amendments accepted at committee rejected by the government, and those boards were created by statute with the mandate to expand offshore oil and gas.

This bill is so bad that after decades of fighting for environmental assessment, I have to vote against it. That is why it is tragic. I would like to break down right now and weep for the loss of decades of experience. We know better than this.

Mark Gerretsen Member for Kingston and the Islands

Madam Speaker, I appreciate the comments from the member for Saanich—Gulf Islands. She is extremely passionate about this particular topic, as we know. I will not question her wisdom in terms of the information that she brings to the table in regard to this debate.

I will say that when the Liberal Party ran in the last election, Liberals had a lot of concerns over the way that things were previously being done with respect to engaging on our environmental commitments. I know that the member is concerned that three bills are being merged into one and has expressed her desire to vote against the bill.

I am interested to hear more of her comments. Looking more holistically at all of it instead of drilling down into particular items, would the member not at least agree that this bill is better than what we had before, in terms of its commitment to providing the necessary safeguards we need to protect our environment?

Elizabeth May

Madam Speaker, that is a tough question.

When the Minister of Finance announced that we were buying a 65-year-old pipeline, I heard him claim that the Kinder Morgan environmental review was:

…the most rigorous process and environmental assessment in this country’s history.

It is, in point of fact, the worst. The very worst environmental review in Canada’s history was the one the NEB did on Kinder Morgan. I have been involved in dozens of these reviews, and it is not hyperbole. It is a fact, and anybody in environmental law would tell us that.

Is this somewhat better than what Harper left in place? Maybe, but here is the problem: if we accept a fundamental review of this many acts now in 2018, we will not get this fixed for another decade.

This bill stinks, so I have to vote against it.

Robert Aubin – Member for Trois-Rivières

Madam Speaker, I thank my colleague from Saanich—Gulf Islands for her remarks, which are always relevant. She summarized a lot of history in 10 minutes, and that was greatly appreciated.

I was wondering whether she saw another similarity between the previous Conservative government and the Liberals, specifically their habit of giving more and more power to ministers in their bills. That is what Liberals are doing in Bill C-69, which already proposes an inadequate solution that the environment minister can get out of when she sees fit.

Elizabeth May

Madam Speaker, I thank my colleague for his comment. I wholeheartedly agree with him.

It is clear that this part of omnibus Bill C-69 gives more discretionary powers to the environment minister. The proposed amendments make improvements in that they seek to guide the minister’s decisions, but the fact remains that this bill gives the minister more powers and does not reinstate the regulations or the transparent process that were in place before Mr. Harper’s changes.

Nick Whalen – St. John’s East

Madam Speaker, I would like to thank the hon. member for Saanich—Gulf Islands for her views on this topic. They are informed and important.

In the case of Newfoundland and Labrador, I think most Newfoundlanders and Labradorians are very proud of the Atlantic Accord. They appreciate the role the life cycle regulator plays. We understand that when the regulator says “no”, it says “no”, but it does not just say “yes”; it asks “how?”

Why does the member not feel that the life cycle regulator has an important role to play in setting conditions at the impact assessment stage?

Elizabeth May

Madam Speaker, we know that the expert panel recommended that the regulator not play a role. I have watched, and I know Newfoundlanders are very proud of the Canada-Newfoundland and Labrador Offshore Petroleum Board, but it has a mandate in law to expand offshore oil and gas. With all due respect, how on earth can it be seen to be unbiased when it is looking at a project to expand offshore oil and gas? This is the clearest example of an inappropriate allocation of review processes and review powers to any agency in Canada’s history.

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