Federal Government Moves Quickly to Bypass Supreme Court Ruling, Undermine Environmental Assessment

Jamie Kneen Communications and Outreach Coordinator responsible for: strategic research, social media, and public engagement; our Africa program, environmental assessment, and uranium mining.

Our Supreme Court win re-established the integrity of the Canadian Environmental Assessment Act (CEAA), but the government has moved quickly to undo it. The Budget Implementation Bill, C-9, introduced March 29, 2010 and passed into law on July 12, makes a mockery of the independence and objectivity of the federal environmental assessment process.

MiningWatch joined other national environmental groups and coalitions to roundly denounce changes to CEAA buried deep in the almost-900-page Budget implementation bill. The changes will effectively reverse the January 2010 Supreme Court decision on the Red Chris mine project (the “MiningWatch case”) and ensure continued delays and confusion on environmental assessments of major projects, as well as allowing the public to be excluded from arbitrarily redefined review processes. The groups strongly criticised the changes themselves as well as the secretive, unaccountable, and anti-democratic way they were introduced.

Specifically, the Budget bill gave the federal Minister of the Environment the discretion to redefine the scope of an environmental assessment, allowing him (or her) to split projects into component parts or exclude parts of the project from the assessment. It also legalised the exemption of federally-funded infrastructure projects from EA and formalised the role of the Canadian Nuclear Safety Commission and the National Energy Board in carrying out Panel reviews – despite both agencies’ poor track record in public engagement.

MiningWatch staff testified before both the House of Commons and Senate Finance Committee on the inappropriate use of Budget legislation to bypass proper Parliamentary scrutiny as well as the deeply problematic nature of the changes themselves.

The government’s stated agenda is to minimise and “streamline” the federal role in EA, by reducing the overall number of projects being assessed, centralising the administration of assessment processes within the Canadian Environmental Assessment Agency, handing over the actual assessment processes for large projects to other agencies like the CNSC and the NEB, and ultimately handing over the process to the provinces. Legally, the federal government cannot hand over jurisdiction to the provinces in areas like fish and fish habitat, migratory birds, navigable waters, and of course Aboriginal consultation and accommodation, but they can essentially vacate the field, devolving the assessment process to the provinces and thereby constraining the range of decisions that can be made, if not actually abdicating federal decision-making.

The proposed Prosperity copper-gold mine in British Columbia is a good example of the value and importance of a strong and consistent federal role in environmental assessment (see elsewhere in this newsletter). A federal review panel has been hearing evidence from affected communities, independent fisheries experts, and social scientists (MiningWatch was an intervenor). Serious shortcomings in the proponent’s proposals have been identified and led to the review panel finding that the project would have significant adverse environmental effects. In contrast, a provincial review had already led to approval by the BC government with only minimal conditions – and without the participation of the Xeni Gwet’in First Nation, the Tsilhqot’in National Government, the Secwepemc Nation, or the Union of B.C. Indian Chiefs.

Without a federal review, there would not have been a robust and public consideration of significant issues around the project’s impacts on water and fisheries, and the interests of the Xeni Gwet’in First Nation and the Tsilhqot’in National Government.

With this latest attack on CEAA already passed into law, the next challenge will be the scheduled legislative review of the Act, to be undertaken by the House of Commons Standing Committee on the Environment and Sustainable Development in the fall. We believe the government will take the opportunity to try to diminish the law even further. This cannot be allowed to happen; the damage that has been done to the Act must be repaired. At the same time, there is an opportunity to go further, and bring forward proposals to try to address some of the real shortcomings of the Act, to make the environmental assessment process more effective and enforceable, better integrated into decision-making, and more responsive to the public.

We are working with the Environmental Planning and Assessment Caucus of the Canadian Environmental Network and a number of other groups to bring attention to the government’s attack on the CEAA. There is a Facebook group and a web-based campaign urging people to write and visit their Members of Parliament to make sure they understand the seriousness of this issue.