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Why British Columbians should care about the offshore regional assessment on the East Coast

March 13, 2020

A regional assessment of offshore oil and gas activities in Newfoundland and Labrador is setting a dangerous precedent for decisions about resource projects here in British Columbia. The assessment wrapped up with the submission of the assessment Committee’s final report at the end of February, and has been heavily criticized by east coast environmental groups.

This blog explains some of the regional assessment’s most troubling flaws, and why British Columbians should be concerned.

What is the Newfoundland and Labrador regional assessment?

To call the Newfoundland and Labrador assessment a “regional assessment” is a misnomer. It is actually a different kind of assessment designed to exempt certain projects from the new federal Impact Assessment Act – in particular, offshore exploratory drilling off the coast of Newfoundland and Labrador.

There is no standardized definition of a regional assessment, but there are some standard aspects. In a nutshell, a regional assessment looks at past, present and potential future cumulative effects of various human activities in a given region. It examines development trends, identifies different future environmental and socio-economic scenarios, recommends a preferred scenario, and sets out pathways for achieving that scenario.

Like project assessments, regional assessments are intended to help decision-makers and communities make informed and thoughtful decisions about resource development and industrial projects. Regional assessment can be an important tool for addressing and avoiding cumulative effects, identifying no-go zones, prescribing the pace and scale of development, and reducing conflict over individual projects by securing broader agreement on where, when and how projects should proceed.

Unlike strategic assessments – which typically focus on a particular industry, policy or plan – regional assessments should be broad and take into consideration the past, present and future effects of all human activities on the environment.

The regional assessment in Newfoundland and Labrador does none of these things. For starters, it is called a “Regional Assessment of Offshore Oil and Gas Exploratory Drilling East of Newfoundland and Labrador” and, as its name suggests, rather than assessing all projects and activities in the region, it is limited to assessing only offshore exploratory drilling. This limited scope disregards not only other projects and activities, but also the full range of oil and gas activities in the region, like extraction and shipping.

Perhaps most importantly, the primary purpose of the assessment is to allow offshore exploratory drilling in the region to bypass the federal impact assessment process.

An amendment to Bill C-69, which enacted the Impact Assessment Act, explicitly permits the Minister of Environment and Climate Change to establish a regulation exempting a category of project from the requirements of the Impact Assessment Act where a regional assessment has been conducted. Being exempted means that projects that would normally be required to undergo a federal assessment no longer need to, and go straight to regulatory permitting.

Within days of receiving the assessment Committee’s report, the Impact Assessment Agency of Canada posted a discussion paper on exempting offshore exploratory projects from the Impact Assessment Act in the region covered in the assessment. Based on both the limited scope and purpose of this assessment, it more closely resembles “class assessments,” which are designed to establish standardized conditions for projects of a similar type, rather than require every project of that type to undergo full assessments.

But even as a class assessment, the assessment of offshore exploratory drilling in Newfoundland and Labrador is remarkably weak.

How does the NL regional assessment fall short?

The Newfoundland and Labrador assessment fails to achieve any of the fundamental objectives of regional assessment described above.

It fails to recommend no-go zones, despite considerable concerns raised regarding sensitive marine habitats in the region, such as deep-sea corals and sponges, and despite the existence of marine refuges to protect those vulnerable habitats. The Committee had access to several scientific reports on these habitats and could have recommended that exploratory drilling be excluded from protected areas, but it did not. This is especially problematic since Canada is currently counting these areas towards its target of protecting 10% of the ocean by 2020 and 25% by 2025.

The report has also been criticized for taking a narrow approach to analyzing greenhouse gas (GHG) emissions, and in particular for only assessing the emissions of exploratory activities, not the GHGs related to oil and gas production and use. This narrow scope was used despite the fact that offshore petroleum production at the pace projected by the province would make it virtually impossible to meet Newfoundland’s GHG reductions targets, and would impede Canada’s ability to meet its 2030 target of reducing GHG emissions by 30% below 2005 levels by 2030.

Public participation was also severely limited in the assessment, contrary to the federal government’s commitment to meaningful public participation in federal assessments. Meaningful public participation means early and ongoing public engagement that is deliberative, informed and respectful of the information and values of participants.

Participation must go beyond comment periods and hearings and include opportunities for two-way dialogue with the Committee, and the public must be given sufficient time and resources to be able to meaningfully engage. The assessment has been criticized for failing to take the concerns, evidence and recommendations of the public and environmental organizations into account.

Perhaps the most egregious example of public participation being no more than a checkbox exercise is that the comment period on the draft assessment report concluded only one week before the Committee submitted its final report to the Minister. It would have been impossible for the Committee to read, reflect on and incorporate comments into its 210-page report in the space of a week. To offer a comment period with no ability for those comments to influence the report is nothing short of an insult to the individuals, organizations and Indigenous groups that participated in good faith in the process.

Also very problematic were the timelines of the assessment. The Committee was appointed in April 2019, and had until fall 2019 to fulfil its duties (that timeline was extended to February 20, 2020). In its cover letter submitting the final report, the Committee acknowledged that “the abbreviated time given to the Committee to fulfil its task” was a challenge.

As with public participation, it would have been impossible on these timelines to meaningfully consult and engage with the Indigenous peoples in whose territories the exploratory drilling is proposed. It would have also been impossible to meaningfully engage experts and knowledge holders, and gather and analyze relevant information to make informed recommendations.

It is little wonder that the regional assessment has failed to achieve so many basic objectives, given the impossibly short amount of time it was given to do so.

Why is the NL regional assessment relevant to BC?

British Columbians should be concerned about the “regional” (i.e., class) assessment on the east coast because the same thing could happen here. While it is likely that the assessment’s terms of reference and truncated timeline were the result of political calculus aimed at keeping Newfoundland and Labrador happy in the lead-up to the last federal election, the Impact Assessment Act permits a similar exercise designed to rubber-stamp controversial projects in BC’s lands and waters.

For example, the federal and provincial governments could enter into an agreement to conduct a so-called regional assessment of liquefied natural gas (LNG) development in order to circumvent the important public conversations that project assessments of those projects provide. With the new BC Environmental Assessment Act and increased federal funding for regional assessments across the country, it is critical that the federal and provincial governments have frameworks in place that ensure that regional assessments follow best practices and achieve enhanced environmental and community safeguards, rather than rubber stamp controversial projects.

What are the solutions?

To begin with, the proposed regulations to exempt offshore exploratory drilling from the Impact Assessment Act should be shelved. In fact, burned.

But the regional assessment need not have been in vain; the report reflects a tremendous amount of work by the Committee, the public and other participants, and the report is to be followed by a GIS mapping tool in May to support environmental decisions in the region. The federal government and Newfoundland and Labrador should view the Committee’s assessment report as a jumping-off point for a more rigorous, participatory, meaningful regional assessment that meets the objectives and definition provided above.

Secondly, to safeguard against future regional assessments that are as troubled and mistrusted as this one, the federal government needs to enact regulations prescribing minimum standards and processes for regional and strategic assessment. Thanks to West Coast’s efforts, when Bill C-69 was before the Senate we secured an amendment to the Impact Assessment Act to allow the Minister to enact regulations doing exactly that.

Environment Minister Jonathan Wilkinson should put Regional and Strategic Assessment Regulations on the Forward Regulatory Plan, and should begin engaging with the public, Indigenous groups and nations, and experts like West Coast, academics and other NGOs on what needs to be in those regulations to ensure that federal regional assessments live up to best practice standards.

In light of the climate and biodiversity crises and Canada’s lack of clear plans for how to address them, regional assessments could be an important tool to ensure that environmental decision-making aligns with environmental and climate commitments. They could also help diffuse polarization regarding resource – and especially oil and gas – projects, and help generate greater public buy-in to individual projects.

But without a regulatory framework in place, and given the flaws in the Newfoundland and Labrador regional assessment of offshore exploratory drilling, there is a real risk that future regional assessments will continue to fall far short of the mark.

Photo credit: M. Banjo, Oil Rig West Aquarius oil rig, Bay Bulls. Flickr (Creative Commons)

Author: 
Anna Johnston - Staff Lawyer