I have often wondered when we stopped thinking. In 2016, when Liberals approved the Kinder Morgan pipeline, I looked in vain for any cost-benefit analysis. As an intervenor in the National Energy Board pipeline hearings, I knew that the NEB had refused to look at any evidence on jobs and the economy. The only evidence that the pipeline would be good for the economy was that environmentalists and Greens were against it.
When the Liberals decided to buy the pipeline in 2018, ditto. No cost-benefit analysis. No independent valuation of the viability of the project—even from a solely economic viewpoint. What made the national media also assume the project was good for the economy? Because environmentalists oppose it.
When then-prime minister Stephen Harper took an axe to Canada’s environmental laws, he used the excuse that the environmental review process was obstructing new oil sands mines and pipelines.
In reality, under the Canadian environmental assessment laws, not one pipeline, not one oilsands mine, had ever been rejected.
When the Liberals decided to bring forward Bill C-69 in 2018, national environmental groups rallied round to pass it. Where was the evidence it was worth passing? Only that Alberta Premier Jason Kenney called it the “No More Pipelines Act.”
It could have as easily been called the “Pro-Pipeline Act.” I voted against it. I railed against it. I pointed out that its approach to environmental assessment had become unmoored from its Constitutional anchors. It fails to require assessments for thousands of projects in federal jurisdiction that must be reviewed—but now are not.
My long and painful history in environmental assessment (EA) could fill a book. I participated in Canada’s first environmental review (the Wreck Cove hydro project in Cape Breton in 1977). Graduating from law school in 1983, I practiced environmental law and worked on strengthening EA. In 1988, when the federal environment minister broke environmental assessment rules and signed the permits for the Rafferty-Alameda Dams, without any environmental review, I resigned in principle from my position as his senior policy adviser. As a member of Parliament in 2012, I stayed at my desk in the House of Commons for 24 hours of voting on my 400+ amendments to stop the destruction of EA.
I lament the massive failure that Canada’s Impact Assessment Act represents.
For Conservatives, here is the irony. The architecture of C-69 that made it unconstitutional was put in place by Stephen Harper. For Liberals, here is their irony. Given a chance to pass effective and predictable environmental assessment law, they passed a law that dramatically reduces environmental protections while maintaining Harper’s approach.
We forgot the purpose of federal EA, which is to review actions of the federal government. It is to start before irrevocable decisions are made and allow for modifications of projects to reduce environmental impacts.
Its earliest manifestation was a 1970s order-in-council calling for reviews whenever federal land, federal money, or a decision in an area of federal jurisdiction is involved. In 1984, it was revised as the Environmental Assessment Review Process, confirmed as mandatory and constitutional in the 1989 Federal Court decision in Rafferty dam (the issue over which I had resigned) and the 1992 Supreme Court decision in Friends of Oldman River.
Work began under Progressive Conservative prime minister Brian Mulroney and was finalized by the Liberal government of Jean Chrétien to create more detailed, clear, and mandatory legislation. The 1992 Canadian Environmental Assessment Act (CEAA) maintained the same constitutional frame, but added certainty. It required an EA whenever federal land, federal money, or a decision in an area of federal jurisdiction is involved. But rather than a vague description of federal areas of authority, it created a “law list.” That list set out the permit making authorities of federal ministers—primarily under the Fisheries Act, the Navigable Waters Protection Act.
Harper’s spring 2012 omnibus budget bill (implemented in bills C-38 and C-45) destroyed the whole regime. The Fisheries Act, Navigable Waters Protection Act were wrecked. The new EA approach was to review only those projects the minister decided to put on a “project list.” The minister had vast discretion and no federal mooring lines. The impact was to reduce the number of reviews from 4,000 a year to fewer than a hundred.
When Justin Trudeau formed government in 2015, the mandate letters to new ministers required that the environmental legislation be restored. The Fisheries Act was successfully repaired by former minister Dominic LeBlanc. The Navigable Waters Act was nearly totally fixed by former minister Marc Garneau. The EA law remained a disaster.
Then-environment minister Catherine McKenna set in place an expert panel. Johanne Gélinas, former commissioner for the Environment and Sustainable Development; Rod Northey, environmental lawyer; Doug Horswill, Teck Resources; and Renée Pelletier, an expert in Indigenous law, held intensive cross-country hearings. They called for the pre-Harper approach to be restored: “The panel recommends that federal interest be central in determining whether an [Impact Assessment] should be required for a given project, region, plan, or policy.”
The panel’s recommendations were rejected by the Canadian Environmental Assessment Office. As one senior CEAA executive told me, “We don’t want to throw the baby out with the bathwater.” The agency convinced the minister’s staff to keep Harper’s model.
Only large projects would be reviewed based on a completely discretionary project list, leaving thousands of potentially damaging projects within federal jurisdiction, unstudied. C-69 was just plain bad legislation.
Let’s forget an appeal and start fixing EA in Canada.