By Jamie Kneen, MiningWatch Canada, and Rachel Forbes, staff lawyer at West Coast Environmental Law, with research by Taylor Hunt, student intern with West Coast Environmental Law
NERD ALERT: DISCUSSION OF TEDIOUS YET VITAL REGULATORY PROCEDURE AHEAD.
This past spring, the federal government, through its omnibus ‘budget’ bill C-38, introduced an entirely new, and spectacularly diminished, environmental assessment law for Canada: the Canadian Environmental Assessment Act 2012 (CEAA 2012). Environmental groups, experts, and many members of the public were horrified at the new limits on what projects – and what potential impacts – would be reviewed, as well as the limits on public participation and opportunities for Aboriginal peoples to be consulted. The new law has been called a regulatory information-gathering exercise – not an environmental assessment process at all.
The government, naturally, has been working hard to restore a patina of integrity to the new law. Well, not really. The initial suite of regulations that the new law needed in order to function were hurriedly copied and pasted from the previous version with no chance to make them relevant to the very different structure of the new law. There was no public consultation or discussion to allow regulations to be developed that were relevant to the structure of the new law and the potential environmental impacts of major projects.
Despite a 25-year history of work on precisely these questions, members of the Canadian Environmental Network’s Environmental Planning and Assessment Caucus were astonished and frustrated to find that just as with the development of CEAA 2012 itself, our input on developing the regulations was to be limited to submitting comments that the government would not even respond to, and that the government would provide no meaningful rationale for the proposed changes.
Putting the cart before the horse
CEAA 2012 is based on a ‘project list’, which lists all activities or projects that might be required to undergo an assessment. This list is fundamental to the Act because it determines what projects the law will apply to, but it was not made public – even in draft form – during the abbreviated debates on CEAA 2012/Bill C-38.
As it turns out, the project list was not attached to CEAA 2012 because it did not yet exist. Although the new law couldn’t “enter into force” without the list, this would normally not be a problem since the government could wait until the regulations had been thoroughly consulted and reviewed. But the government chose to bring CEAA 2012 into force just one week after Bill C-38 passed into law on June 29, leaving the responsible federal department (the Canadian Environmental Assessment Agency) in a bind. With some minor editing, the old Act’s Comprehensive Study List Regulation was attached to CEAA 2012 as the new Project List, formally known as the Regulations Designating Physical Activities (RDPA).
It was at this point that the government decided it might want to ask the provincial governments, industry groups, First Nations, environmental groups and others what they thought a Project List should or should not look like. The Agency called this a ‘pre-consultation’ because IF the Minister did decide to go ahead and amend the copied-and-pasted Project List, the proposed amendments would go through the minimal standard process of being published in the Canada Gazette, Part 1, for comment before being finalized and published in the Canada Gazette, Part 2. (The Canada Gazette is the official record of government decisions and regulations. We all read the Canada Gazette faithfully, right?) With the Act and the Regulation already in force, it might have been more appropriately called a post-consultation. Nonetheless, in August 2012, the Caucus and many of its member organizations made submissions to the Agency, recommending many major changes to the RDPA that we felt would help improve what would still be a massively inadequate regime (see some of the on-the-ground observations about CEAA 2012’s shortcomings in this blog post).
Stakeholder summary short on substance
During the “pre-consultation” process, 44 stakeholder groups raised series of issues and concerns that were summarized by the Agency in a document titled “Stakeholder Pre-Consultations Summary of Issues Raised.”
A number of stakeholders, notably Aboriginal groups, did not have an adequate chance to participate or could not participate in the “pre-consultation” process at all, and the absence of any actual discussion among stakeholders as part of the process forestalled the possibility of developing any kind of broad agreement on recommendations or even on what criteria should be used to develop recommendations. The Agency’s summary does not make any attempt to evaluate the potential impact or value of the range of proposals made by various stakeholders –– either in relation to the purposes of the Act or in terms of the integrity of the federal environmental assessment process –– or to seriously evaluate the rationale and justifications behind those recommendations.
It is deeply troubling that recommendations made by parties that are seeking to further limit and weaken the application of the Act should be given the same consideration as the practical proposals to reinforce the integrity of the Act made by other participants. Simply observing that some commenters said one thing and others said something different is not an adequate substitute for taking participants’ reasoning and rationales into account to come up with a logical and coherent set of recommendations.
It’s also ridiculous, bordering on irresponsible, to write and promulgate regulations without input from people who have direct experience and knowledge about their application. That’s why the Regulatory Advisory Committee, which the government has not convened for four years, was set up in the first place – to develop the key regulations underpinning the old CEAA. It’s also why standard-setting bodies like the CSA or the ISO use extensive multistakeholder conversations to develop standards, as recently explored on CBC Radio’s Ideas program, The Screw That Changed the World. Such discussions can be very useful, developing criteria, seeking consensus, and establishing broad agreement – or at minimum, clear decision points – across various sectors.
It is asking an awful lot of the Agency to be able to hammer a diverse array of recommendations into a decent regulation on its own, without much background information on a range of industrial activities and potential environmental impacts – especially in the absence of clear criteria. Concrete examples abound: say, what factors should determine whether a tannery or textile plant should undergo an environmental assessment? Is there a reasonable size threshold, or location criteria – relative to a wetland or water body, for example – that might be relevant? And without involving people with experience and knowledge of that sector, how can one make an informed decision?
Where we’re at – and where to go from here
The government has made much ado of the new Act’s supposed contribution to making the environmental assessment process more efficient and predictable. Its harsh deadlines, limited applicability, restricted scientific content, and drastically reduced opportunities for public involvement supposedly support these objectives. On the other hand, the new Act already suffers from inconsistencies and contradictions due to its hurried and non-democratic drafting. The clearest example of this is that the government has already gone back and amended the new CEAA 2012 once it noticed its own drafting mistakes. The government’s arbitrary and capricious approach to developing and amending the Project List can only contribute to the inefficiencies and uncertainties surrounding the Act’s implementation.
Currently, the Agency’s ‘Summary of Issues Raised’ document is before the Minister of Environment, to decide whether and how the Project List should be amended further. Supposedly the Minister was to make a decision in mid-autumn. As the clock has been ticking, we wanted to remind the Minister of the importance of this regulation to CEAA 2012, of the inadequate process by which the current regulation came into being, and the real need to work with all interested stakeholders to draft a better Project List.
The Caucus sent a letter to the Minister, copied to the Agency, on December 6. We reviewed he situation and urged him to “direct the Agency to proceed with more comprehensive consultation to allow meaningful stakeholder involvement – and the development of more coherent and positive recommendations.”
We are, of course, hoping to hear back from the Minister soon, and look forward to working further with the Agency on developing improved regulations.