As a result of the omnibus budget bill, C-38, of spring 2012, Canadian environmental assessment has been converted from a predictable, professional process to a dog’s breakfast of wildly disparate review standards. Projects caught in the pre-2012 thorough review process under the Canadian Environmental Assessment Act get one standard of review. Those under the new CEAA2012 created by C-38 can be directed to a number of different pathways – none of them adequate.
The basics are often ignored. The vast majority of projects that used to be reviewed no longer get any review at all. Many of these are projects of the Government of Canada. Strangely the mining industry has seen its required reviews increase. Many industry representatives preferred the previous EA, pre C-38. The process was predictable and to the extent that there was any federal-provincial overlap, that had been sorted out before C-38 wrecked everything.
I have heard representatives of government as well as journalists ascribe one set of expectations to projects caught in a vastly different web. Political interference has muddled the standards of environmental review. It is my hope that this primer is of use to people as a reference tool to understand where projects are stuck and why – as well as to appreciate why we must return to the pre-C-38 version of environmental review as soon as possible. Unfortunately, the process announced on June 20 by six federal ministers will result in a process to make recommendations by January 2017. Every day the C38 version of CEAA is in place, more serious errors will happen and more projects will receive no review at all.
1) First Example: Site C
Site C had an excellent environmental review under pre-2012 CEAA. It went to a joint federal-provincial review. The panel was chaired by highly respected former federal deputy minister Harry Swain.
The panel found that the project would create economic problems for BC. The panel found there was no demand for the energy and that BC Hydro had failed in its mandated direction to explore geothermal. It established as fact that the project would cause permanent environmental damage that cannot be mitigated. It found as fact that it would cause permanent loss of treaty rights to Treaty 8 First Nations.
Problem: The Conservative Cabinet made a determination that the economic importance of the project outweighed the damage it would do. There was no evidence from the panel report to justify this conclusion. Now the media reports that Minister McKenna does not want to revisit the Environmental Assessment, but no one is asking for her to do so. Neither is anyone asking the new government to violate their principle that no project has to start over.
The Royal Society of Canada, our premiere scientific academy, has described the Site C joint panel review report as the strongest and most negative review ever to be ignored by government. The vast numbers of experts, First Nations and environmental groups want the Trudeau Cabinet to reverse the ideological pronouncement of the previous Cabinet. Royal Society scientists and lawyers say this is a bellwether for the Trudeau administration. “The honour of the Crown is at stake.”
2) Second Example: Woodfibre LNG
Woodfibre LNG received its approval from the federal government earlier this year. Minister McKenna signed off on the environmental assessment saying it had gone through a robust, science and evidence based process.
Problem: Woodfibre went througha doubly-degraded environmental assessment. Its review commenced after the passage of C-38 and the establishment of a weak federal process under CEAA2012. It was further weakened as the previous federal government agreed to have the review substituted by the BC process and run by the government of BC. For context, recall that the proposed Taseko Fish Lake Mine was rejected (twice) by the pre-2012 CEAA federal process (rejected by both Environment Ministers Jim Prentice and Leona Agluqqak) but approved by the BC EA.
3) Third Example: Donkin Coal mine
The proposal to build a new underground, sub-sea coal mine off Donkin Cape Breton went through an environmental review under the pre-2012 CEAA process. Former Environment Minister Peter Kent signed off on the environmental assessment.
Problem: Political interference in the review led to the exclusion of GHG emissions as a problem for the mine. There was a condition that a GHG management plan be developed before the mine can proceed.
4) Fourth Example: Kinder Morgan pipeline
The Kinder Morgan review was conducted under the post C-38 CEAA. It is the first major project with a review conducted solely by the National Energy Board. (Enbridge Northern Gateway was in process when CEAA2012 came into effect, so a joint review was struck between the NEB and CEAA).
In this disastrous review the violations of rights of procedural fairness were legion. The hearings were closed. The intervenors restricted to those “directly affected” as required under C-38. The NEB refused to exclude evidence proven to have been falsified. The scope of review was narrow. And the procedure excluded any testing of the evidence. The NEB ruled that oral cross-examination would take too long. So written interrogatories and an entirely paper process replaced normal evidentiary process – as it had always been on regulatory issues before the NEB and as it had always been under environmental reviews before the NEB got into the act. The paper exchange meant that those contracted by Kinder Morgan to prepare evidence never had to answer questions.
Problem: Having campaigned in the 2015 election that no project could be approved based on this broken process, the Liberal government has added an interim process of further review. This process is to increase the project’s review by adding consultation with First Nations and a broader view of environmental impacts, to include climate change. It is unclear how those who were excluded or whose rights were violated under the NEB process will be engaged in the additional “interim” process.
5) Fifth Example: Old Harry
This proposal for a deep water oil well in the Gulf of St. Lawrence doesn’t fall under the NEB or CEAA for review. Due to C-38, its environmental assessment is under the Canada-Newfoundland Labrador Off-shore Petroleum Board (CNLOPB). The Gulf of St. Lawrence is an extremely biologically productive area – virtually an inland sea. It is surrounded by five provinces. Due to its counter-clockwise tides, if an accident occurred in the Gulf the oil would be moved with the tides to the south coast of the Gaspe, the west coast on New Brunswick, all coasts of the Magdalens and Prince Edward Island, the north coast and Northumberland Strait of Nova Scotia and the west coast of Newfoundland. Currently, there are no fossil fuel production facilities in the Gulf.
Problem: Former environment minister Peter Kent promised a comprehensive EA of the whole notion of developing the Gulf of St. Lawrence for oil and gas. That review never happened. The proponent Corridor Resources has been granted three extensions over the last four years on its license to explore the Old Harry site. CNLOPB has waived the required $1 million fee, four years in a row. The CNLOPB has a legislated mandate to promote oil and gas. Due to C-38 it is also supposed to conduct a neutral EA. It has not yet started its review.
6) Sixth Example: Darlington
The proposal by Ontario Power Generation to rebuild the four aging reactors at Darlington is being assessed for environmental impact by the Canadian Nuclear Safety Commission.
Problem: Like the NEB and CNLOPB, the CNSC has never conducted environmental assessments before. This is a new process created due to C38. The intervenors are having the same difficulties as pipeline intervenors in getting access to experts and participating in the process.