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Good Environmental Laws Require a Government that’s not Afraid of Public Debate

March 30, 2010

UPDATE - APRIL 26, 2010 - See our new blog post and Facebook Group.

On December 30th, 2009 Prime Minister Stephen Harper prorogued Parliament – shutting down Parliamentary debate on dozens of bills and avoiding difficult political questions about torture in Afghanistan.  Proroguing Parliament might seem like an esoteric point of Parliamentary procedure, yet Canadians were deeply troubled by what it said about this government’s commitment to accountability and public process. 

Rick Mercer said it best:

This is what I love about Canada: Yes, we are apathetic, but the minute anyone tries to use our apathy against us, suddenly we start to care BIG TIME. 

So if Canadians thought that proroguing Parliament demonstrated that the Prime Minister has an undemocratic streak, what will they make of the government’s latest attempt to by-pass public consultations that have been planned for 7 years and to hide the gutting of one of Canada’s major environmental laws in a tome of a statute that should have little to do with environmental matters?BudgetImpl.jpg

I’m referring, of course, to yesterday’s revelations (reported in today's Globe and Mail) that nestled way at the back of the 2010 Budget Implementation Act are a whole series of amendments to the Canadian Environmental Assessment Act (or CEAA for short).  These amendments will do three main things. 

  • First, they will allow the Minister of Environment to avoid doing detailed environmental assessments on large projects by breaking the projects up into smaller pieces.  This undoes the recent Supreme Court of Canada decision in the Red Chris Mine case.  These new rules apply even to projects that are already in the environmental process but which had not been scheduled for the more detailed “comprehensive study” process because of the government’s refusal to acknowledge its legal obligation to do so.
  • Second, the amendments will exempt a host of major projects that are funded by federal infrastructure and other government sources from environmental assessment provisions.  These sections effectively give legal sanction to rules that were previously contained in regulations of questionable legality which are currently being challenged in court.  In some cases this will mean that no environmental assessment will be conducted in respect of these projects. 
  • Third, there are provisions related to the expanded role of the National Energy Board and the Canadian Nuclear Safety Commission in carrying out environmental assessments – taking environmental assessment for energy projects out of the hands an agency with expertise in doing assessments, the Canadian Environmental Assessment Agency, and putting it into the hands of agencies that don’t. 

It’s always open to the government in a Parliamentary democracy to rewrite environmental laws.  The public relies upon our Members of Parliament to carefully scrutinize changes to environmental laws and to vote against changes that will not protect the environment.  But the government’s amendments don’t live up to that ideal.

  • A vote on the Budget Implementation Act is an automatic vote of confidence, meaning that the opposition parties cannot defeat the bill without bringing the government down.  In American politics it is commonplace for politicians to slip “riders” – unpopular laws that would not pass on their own – into high profile bills.  This has not been the conventional way of doing Parliamentary business in Canada, except under this government. 
  • The amendments to CEAA have absolutely nothing to do with the budget and including them in the Budget Implementation Act buries these 20 sections (sections 2152 to 2171) in this 2208 section long, very thick statute.  As a result, they are less likely to receive scrutiny from MPs reviewing the other 2188 sections of the bill towering in a pile on their desks.   
  • CEAA itself mandates a public and transparent review (the “seven year review”) which is supposed to be underway this year (2010).  These reviews in the past have involved consultations with the public, Aboriginal groups, environmentalists, industry as well as involving opposition MPs in the process.  To make large scale revisions to the Act just before the government was supposed to consult the public flies in the face of the public process mandated by Parliament. 
  • Since before CEAA was enacted the Canadian government has had a multi-stakeholder committee – boring name alert, stay with us – the “Regulatory Advisory Committee” (or RAC), with representatives from industry, Aboriginal groups, the environmental community and others, to provide input on changes to the Act and its regulations.  West Coast Environmental Law has been a member of this Committee since it was created.  The RAC was not asked for input into these changes, or, indeed, on anything else since the Spring of 2008

Will the Canadian government get away with this cynical and undemocratic attempt to by-pass public process?  Could be:  they got away with burying major changes to Canada’s Navigable Waters Protection Act in last year’s Budget Implementation Act

But then again, they thought that they would get away with proroguing Parliament, and Canadians flocked to Facebook groups and Websites, phoned their MPs and demonstrated in the streets.  We can only hope that Canadians will be as vigilant now that the integrity of one of Canada’s most important environmental laws is at stake. 

UPDATE - APRIL 26, 2010 - See our new blog post and Facebook Group.