Bill C‑38 creates open season on Canada’s natural environment

June 8th, 2012 by Laura Bowman and Paula Boutis

On April 26, 2012, the federal government tabled Bill C-38, the 2012  Budget Bill.  The Bill was reviewed before the Standing Committee on Finance which just released its report recommending that part 3 of the Bill be carried as written.  Part 3 of Bill C-38 contains several significant changes to federal environmental legislation, including:

  • the Canadian Environmental Assessment Act,
  • the National Energy Board Act,
  • the Canadian Oil and Gas Operations Act,
  • the Nuclear Safety and Control Act,
  • the Fisheries Act,
  • the Canadian Environmental Protection Act and
  • the Species at Risk Act.

Here we describe highlights of the two most important legislative changes, to CEAA and the Fisheries Act.

CEAA, 2012

The Canadian Environmental Assessment Act is repealed and replaced with the new Canadian Environmental Assessment Act, 2012 (CEAA, 2012).   One of the changes is to move from federal approval “triggers” currently housed in the law list triggers to a designated projects list.  We do not yet know what projects will be designated.  Projects can also be designated by order. (section 14(2))

Designated projects will be “screened” by the Canadian Environmental Assessment Agency (CEA Agency) to determine if an environmental assessment is required.  No more “screening” EAs will be done, and no more comprehensive studies will be done. (sections 8‑12)

The responsible authority (which under s.15 is either the Canadian Nuclear Safety Commission, the National Energy Board, or the CEA Agency) will commence and conduct the EA, if required (s.17‑27).

All federal EAs will cover only effects to fish, birds, aquatic species at risk or projects on federal lands or impacting aboriginal people, extra provincial effects and effects on federal lands.  Other environmental effects will be excluded unless they are listed in the Schedule or directly linked to a permit. (section 5(1) and 19(1)).

While Review Panels and participant funding programs remain in place, (sections 38‑51) the scope of the hearings are narrowed and participation at the hearing is limited to those who are “interested parties” under the new definition.  This is defined as a person who is “directly affected” by a project or who has relevant information or expertise.  We do not yet know how this will be interpreted by review panels.  Otherwise public consultation is still required for EAs (s.24) and “public comments” can still be submitted to Review Panels (s.43(1)(d)(ii)).

The Minister of the Environment (Minister) has new powers to authorize another EA process to be used as a substitute (including any other regulatory processes) for the EA process under CEAA 2012.  This includes EAs conducted by provinces and foreign jurisdictions: (see s.32‑37)

  • In cases where a province requests it, the substitution is mandatory; however there will not be a final federal exemption decision under CEAA unless Cabinet feels it meets certain criteria including ensuring implementation of mitigation measures (see s.37).
  • In cases where it is not requested, substitution may be ordered by the Minister and the Minister must still make a decision.
  • The Minister must not approve substitution for Canadian Nuclear Safety Commission or National Energy Board EAs (s.33).

CEAA, 2012 sets the following time limits within which the Minister or the Agency must render a decision pertaining to the EA with some opportunity for extension:

  • 45 days for screening decisions by the CEA Agency.
  • One year for EAs conducted by the Canadian Environmental Assessment Agency;
  • 18 months for EAs conducted by the National Energy Board;
  • Two years for Review Panel EAs;

The new CEAA also creates numerous “escape hatches” from the federal EA process that leads many to question whether there will ever be another federal environmental assessment.  These include the ability to exempt by order, the ability to substitute other processes, the ability to cancel an EA that is already underway and the ability to change the designated project list very easily.  All of these are essentially at the whim of federal Ministers and Cabinet.

The language of the new CEAA is retroactive to existing projects, creating major questions of fairness for those participating in existing panel reviews who will suddenly be subject to new standing requirements.

The Fisheries Act:

Section 35(1), which prohibits the harmful alteration, disruption or destruction of all fish habitat is repealed.  There are two new s.35(1) provisions to be brought in force sequentially, the first one is not a major change, however in about six months DFO plans to bring into force the final new provision.

The final, long term new s.35(1) is a recipe for ecological tipping points to be reached and amounts to a near complete abdication of the federal role in protecting fish habitat.  It prohibits only “serious harm” to a commercial, recreational or aboriginal fishery.  Only subsistence or licenced aboriginal fisheries are protected, making it of questionable constitutionality since permanent alteration to habitat of other fisheries, such as unlicensed aboriginal commercial fisheries, would not be regulated.  Further, the amendments grant powers to Cabinet to exempt fisheries from the definition of aboriginal, recreational or commercial fisheries by regulation.

 

Serious harm is defined as the death of fish or any permanent alteration to, or destruction of, fish habitat.  For harm to cause the death of fish in a fishery it would potentially be ecologically catastrophic.  Much depends on how serious harm to a “fishery” would be interpreted, and likewise serious harm to fish that are part of a fishery as used in the final new s.37(1).  Fishery is currently defined only as the area where fish are harvested and equipment used, rather than fish habitat as a whole upon which a fishery depends or fish stocks themselves.  It would seem that the use of the term death of fish implies the protection of fish stocks, but how extensive that protection is remains unclear.  Do only some fish have to die from the activity or does the whole “fishery” have to collapse?  How will the boundaries of a particular recreational or commercial fishery be defined?  The new Fisheries Act answers none of these questions.

 

Meanwhile, permanent alteration of habitat in any location where harvesting in one of the above “fisheries” takes place would require a permit.   It remains unclear if it was intended that all fish habitat relied upon by fishers would be protected or only in harvesting locations.   If only in harvesting locations, this is plainly inadequate.  Notably, most recreational fish licences don’t require you to fish in a specific location, and there is no comprehensive information on the locations of recreational fisheries in Canada.  Further, the current definition of fishery leaves ambiguous the protection of water bodies closed to licensed fishing due to the need to recover low fish stocks.

The new amendments are also intended to allow DFO to engage in the designation by regulation of minor works and waters (similar to what was done under the Navigable Waters Act after the 2009 Budget) that are exempted from the habitat and/or pollution protections, in addition to limiting habitat protection to the above.  Thus even if the actual location of a commercial fishery would be destroyed, if it is located in such a minor water or would be altered by a minor work no permit would be required.  Presumably, such items as minor shoreline alterations by cottagers would be designated as minor works.

Both the new CEAA 2012 and the Fisheries Act represent major setbacks in environmental law for Canadians.  Where we once had adequate federal participation in the environmental assessment process we will likely have little to none.  Fish habitat is certain to be severely impacted by the fallout from CEAA 2012 if it is enacted.

Keep in mind that there was no aboriginal or public consultation on these changes and they will be considered only by the finance committee before becoming law.  Deputations to the finance committee by various environmental organizations occurred in late May.  However, even placing these fundamental changes in a budget bill with deputations to the finance committee clearly shows the current government’s failure to take seriously major policy changes that are normally left to other committees with the mandate to oversee changes to environmental legislation.

For a truly enlightening statement by Green Party Leader Elizabeth May on the very questionable approach taken by the government in tabling this “omnibus budget bill”, we direct you to her comments made in the House on June 4, 2012, on a “point of order.”

 

Filed in: Energy and Resources, Environment

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