It’s easy to forget, with the current government’s overhaul of Canada’s environmental assessment laws, that it was another Conservative Government which, almost 20 years ago, committed internationally to developing a national environmental assessment process and to involving the public in environmental decision-making. It was Prime Minister Brian Mulroney who, in 1992 signed the Rio Declaration on the Environment and Economy on behalf of Canada.
This international agreement (at Principle 17) committed each country, including Canada, to carry out:
environmental impact assessment, as a national instrument … [on] proposed activities that are likely to have a significant adverse impact on the environment and are subject to a decision of a competent national authority. [Emphasis added]
The Canadian government delivered by enacting the Canadian Environmental Assessment Act in 1995, guaranteeing that an environmental assessment would occur for all federal government decisions likely to have a significant adverse impact on the environment.
20 years later, the world is gearing up for the United Nations Conference on Sustainable Development, known as Rio +20, and the Canadian government has just released details about its so-called “modernization” of the Canadian Environmental Assessment Act. Unfortunately, Canada is failing in the international commitment it made all those years ago by refusing to assess the environmental impacts of proposed projects before decisions are made about them.
A National instrument
The Rio Declaration emphasized that evaluating environmental impacts was a national responsibility. Let’s review what we know of the current Canadian government’s efforts to “streamline” the process.
It appears that “screening” level assessments – referred to by the government as assessments of “small projects” – will be eliminated. Currently, under the Canadian Environmental Assessment Act, government authorities are required to consider the following when doing a screening level assessment:
- the environmental impacts of their decision;
- how significant those impacts are; and
- whether there are ways to reduce those impacts.
The government authority may, but does not need to (and in fact rarely does), also provide the public an opportunity to comment, in which case public comments also need to be considered. If the project warrants it, a more detailed assessment might be recommended, but this is rare. As the Canadian Environmental Assessment Agency explains:
A screening is a systematic approach to documenting the environmental effects of a proposed project and determining the need to eliminate or minimize (mitigate) the adverse effects, to modify the project plan or [if necessary] to recommend further assessment through mediation or an assessment by a review panel. The responsible authority must ensure that the screening of the project is carried out.
Screenings will vary in time, length and depth of analysis, depending on the circumstances of the proposed project, the existing environment, and the likely environmental effects. Some screenings may require only a brief analysis of the available information and a brief report; others may need new background studies and will be more thorough and rigorous.
It’s a pretty basic process for the vast majority of government decisions – nothing like the more in-depth process reserved for large projects. But it requires the government to think about the environment and to consider alternatives that will avoid environmental impacts.
When the government bemoans the small projects that currently require an environmental assessment – like the construction of buildings or replacement of culverts – they want you to imagine a long, complicated and expensive process. But that’s simply not the case. These are quick reviews that serve to double check that environmental risks of a small project, like the destruction of fish habitat, are managed.
Just so you know – when the federal government talks about consolidating environmental reviews from 40 agencies into just 3, it’s the screening level assessments that will be eliminated. It’s not that currently 40 agencies are involved in each environmental assessment – it’s that currently 40 agencies are considering the environmental impacts of each of their decisions. The government turned responsibility for the larger assessments over to the 3 agencies (the Canadian Environmental Assessment Agency, National Energy Board and the Canadian Nuclear Safety Commission) last year; indeed, our preference would have been that a well-resourced the Canadian Environmental Assessment Agency with its long term experience and expertise be responsible for all large assessments. What’s changed this time is that the responsibility for each agency to consider the impacts of small projects has now been eliminated.
Screenings are not “duplicative”
But the fact is that many of the projects that get a screening level assessment are BIG or capable of causing very significant environmental problems, and that for many of them the federal screening assessment is the ONLY legally required environmental assessment. The federal government talks about removing “duplication” of environmental assessment, but screening level assessments, at least in British Columbia, are the least likely to be duplicative, because the province does not have anything similar in place.
For example, when the Tyson Creek Independent Power Project (IPP) was built on the Sunshine Coast, the only environmental assessment carried out by either level of government was the screening level assessment carried out by Natural Resources Canada. BC doesn’t do environmental assessments of IPPs unless they generate more than 50 MW of power (an arbitrary threshold that we think needs reviewing), and the Tyson Creek IPP generated only 9.3 MW: so no environmental assessment.
One might argue that the federal assessment that was done was not strong enough, because it failed to recognize serious problems with the Tyson Creek IPP which resulted in the massive dump of silt through the IPP into the Tzoonie River. One local resident described the impact:
[T]he environmental impact of bottom draining an alpine lake? How [about] two massive silt dumps, into the Tzoonie watershed right when fragile and defenceless alevins are migrating from their gravel beds to the sea? The magnificent Tzoonie is home to Coho, Chum, Sockeye, Steelhead, Cutthroat and Dolly Varden. Oh yeah...Coho fry spend a year in their home river.
And when friends pulled up their crab trap, in the normally crystal clear estuary June 6, 2010... containing a freshly fillet and bloody Red Snapper as bait...12 hours later, the trap was recovered - the snapper fillet was blanketed in glacial silt...a first in 20 years also. No crabs.
The Tyson IPP is really an example of why we need better environmental assessment, not why we need to eliminate the one level of assessment that applies to projects like these.
More examples of the types of projects which may no longer require an environmental assessment – unless provinces like BC strengthen their environmental assessment laws -- are found in Assessing the Smaller Projects: An essential step towards sustainability:
- A small mine project that requires many kilometres of new access road and sends industrial runoff into an aquatic ecosystem.
- The installation or replacement of a culvert that has potential to alter water level regimes and aquatic species movements between large areas of wetland.
- A single small bridge across a stream in a remote natural area that opens up several hundred square kilometres to resource extraction and public activity.
If there are projects which truly have no environmental impact at all, then let’s discuss whether those really do need an assessment, and how to identify them without doing an assessment. But the fact is, most federal government decisions about lands, funding, resources, etc. are likely to have some environmental impacts, many of them significant and some irreversible. Requiring government decision-makers to consider those impacts and look for ways to reduce them is not red-tape, it’s common sense.
On large projects as well, the federal government wants to get out of the business of doing environmental assessments, and instead turn them over to the provinces. While the idea of “one process” sounds good in the abstract:
- Not all environmental review processes are equal. As we’ve said previously, and repeatedly, the BC environmental assessment process is significantly weaker, in a number of ways, than Canada’s environmental assessment process. You can see that when you look at the specifics of the two processes, as we did in this 2010 response to BC’s speech from the throne, or when you look at the results of particular assessments (such as, notably, the Prosperity Mine assessment).
- The Canadian government has an international obligation to assess the environmental impacts of its decisions, even if another level of government is also looking at the same projects.
- The lack of national leadership on environmental assessment actually creates 13 processes – one for each province and territory – and a 14th for those projects that the federal government decides to remain involved in.
- Although it’s not year clear how the federal government will decide which projects are of sufficient “national scope” to warrant a federal review, questions are being raised about the uncertainty resulting from this type of subjective test.
That’s not to say that the Canadian Environmental Assessment Act is perfect. West Coast has put a lot of thought into what a strong and effective, but efficient, environmental review process looks like and recently made submissions to the Standing Committee on the Environment and Sustainable Development on how CEAA could have improved consistency between provincial and federal EAs:
We understand there is concern with the economic costs of the EA process in relation to the resulting environmental benefits and protections. There are currently unnecessary differences in EA process design between the federal and the various provincial EA regimes. We propose the solution to this is a national EA standard, agreed to by the federal government, provinces and territories, and Aboriginal governments. This would ensure the process is standardized and applied by provinces in a similar fashion and that proponents have a single set of requirements that responds to the issues under federal, provincial, and Aboriginal jurisdiction, to comply with for the conduct of EA.
Without this type of national standard, any attempt to delegate environmental assessment to the provinces will result in inconsistencies between provinces and will not ensure that the “one process” is also a “good process.”
Claims of duplication and inefficiencies make compelling speaking points, but what the federal government proposes will, among other things:
- Renege on Canada’s commitment to the world to assess the impacts of government decisions on the environment;
- Eliminate all environmental assessments for a great many projects, up to and including mines, hydroelectric projects, incinerators, bridges, etc.;
- Result in inconsistent, and often weaker, environmental assessment across the country.
No one is saying that environmental assessment law cannot be improved in Canada. But the current federal proposals will not solve the challenges we have and will reduce protection for Canada’s environment. We know that the vast majority of Canadians want to be able to depend on the federal government to safeguard our families and nature from pollution, toxic contamination and other environmental problems through strong environmental laws. Canadians deserve well thought out, stronger environmental laws, not government’s proposed reckless retreat from responsibility.
By Andrew Gage, Staff Lawyer
Graphic adapted from the Canadian Environmental Assessment Agency website.
Note: All opposition parties with representatives in the House of Commons are on the record as opposing the amendments to CEAA, as proposed.