Elizabeth May: Good Riddance to the Impact Assessment Act

The Supreme Court’s recent decision that aspects of the federal Impact Assessment Act are unconstitutional has been framed as a defeat for those who believe in federal protections for the environment.

I read the news differently. The Impact Assessment Act, also known as C-69, was deeply flawed in ways I warned before it passed in 2019.

Namely, the Liberals’ bill locked in changes to environmental assessment made by former Conservative prime minister Stephen Harper in his party’s quest to make such reviews far less useful and frequent.

It was a really bad law that failed to ensure review of federal projects that threaten our environment.

That is why I tried to warn the Liberals the bill would not survive a court challenge.

So my reaction to Friday’s court’s ruling is this. Thank you. Now the current government can fix the law, making it better in ways I will explain.

First, though, let me set aside a lot of nonsense that has been put forward since Friday’s ruling.

The court’s decision on C-69 has no effect on the federal government’s right to price carbon, nor does it impact federal authorities’ ability to regulate to protect climate.

It also does not mean the federal government cannot review environmental impacts. It does mean that the sloppy and discretionary approach of one part of C-69 needs to be corrected.

On social media the Conservatives tried to claim that the court’s ruling meant the Liberals had been intruding on the rights of Canadians. Horse hockey. Failing to maintain the firm tethering to federal jurisdiction in C-69 has no relationship to individual rights. Not related at all.

The Harper government’s axe

Now please allow me to explain some relevant history. Federal environmental assessments go back to the 1970s in one form or another. The constitutionality of the federal government doing so has been confirmed multiple times.

In 1988, when the federal minister of environment approved two dams in Saskatchewan without environmental review, it sparked controversy. I was the minister’s senior policy advisor at the time and resigned on principle because I believed what a court challenge by the Canadian Wildlife Federation eventually successfully argued — that the minister had broken the law.

The affair shone a light on a critical question. When should environmental reviews be required, and what should be done to formalize the process?

The answer, brought in under former prime minister Brian Mulroney, was the Canadian Environmental Assessment Act, or CEAA. It ensured reviews would occur whenever federal land, federal money and decisions under named pieces of federal law were involved.

In other words, CEAA confirmed that the federal government had to conduct environmental reviews of its own actions.

That’s how it stood until, decades later, Harper as prime minister portrayed federal environmental assessments as major impediments to oilsands development and pipelines. This was not the case. In the entire history of federal environmental assessments, only two projects were rejected outright, and all pipelines and oilsands mines were approved under CEAA. In fact, 99.8 per cent of projects were approved with conditions.

But CEAA reviews were effective in a different way. Under that law, reviews had to begin as early in the planning process as possible and “before irrevocable decisions are made.” In fact, from the early 1970s until 2012, federal environmental assessments were understood to be a planning tool. They did not constitute, primarily, a “thumbs up-thumbs down,” approval process rendered from Ottawa.

But Harper wasn’t having it. In 2012, with a newly minted majority government, he used two omnibus budget implementation acts (spring’s C-38 and fall’s C-45) to destroy the whole process, repealing CEAA and savaging the laws in which most “triggers” for environmental assessments were found. Those would be the Fisheries Act and the Navigable Waters Protection Act.

Harper’s legal moves were met with broad public resistance. C-45 and the assault on the Navigable Waters Protection Act triggered spurred nationwide protests and was a focus of the Indigenous “Idle No More” movement.

Opponents saw the two new laws were designed to deliver what Harper and his allies wanted. The Conservatives put in place a new type of environmental assessment that was more difficult to trigger. They would only happen for projects placed on a “designated list” by the environment minister.

This drastically reduced the number of projects facing review — from over 4,000 a year to fewer than 100.

All opposition parties worked together to stop C-38 and C-45. We voted non-stop for 24 hours in an effort to pass even some of my 450 amendments.

Tragically the Conservatives passed both omnibus bills without a single amendment, repealing or gutting over 70 laws, the National Round Table Act, the Kyoto Protocol Implementation Act, and of course Mulroney’s decades-old Canadian Environmental Assessment Act.

The Trudeau government’s semi-fix

The assault on Canada’s environmental laws was a hot topic in the 2015 election campaign. Following the Liberal election victory, the mandate letters to all ministers concerned were crystal clear: rectify and “repair the damage” done by 2012 omnibus bills C-38 and C-45 — including environmental assessment.

My first signal that all would not go well in repairing environmental assessment was in an early post-election meeting with the senior bureaucracy from the agency in charge. I greeted the official dispatched by then-environment minister Catherine McKenna to meet with MPs by putting the question directly: “When will we repeal C-38?”

The official’s reply: “Oh we wouldn’t want to do that! We do not want to throw the baby out with the bathwater.”

I corrected her. “There is no baby in that bathwater. It is far too toxic!”

McKenna put in place a blue-ribbon panel of environmental law experts that, following nationwide hearings, recommended restoration of the pre-2012 criteria.

The minister ignored those recommendations. Instead she listened to her bureaucracy, and C-69 was the tragic result.

The remaining bureaucracy in the environmental assessment agency liked what Harper had done.

They liked the vastly reduced workload.

Perhaps they thought no government would restore the resources to conduct thousands of reviews a year.

One person who paradoxically helped the Liberals push through their law was Alberta’s then premier Jason Kenney. His declaration that C-69 was the “No More Pipelines Bill” was a huge help to Liberals in rallying support for a bad law.

What the Liberals, and most of Canada’s media failed to understand was that C-69 could as easily be the “pro-pipeline act.”

That is because, as I have explained, it shifted too much power to office of whoever might be federal minister of the environment at the time.

It did so because Bill C-69, mimicking what Harper had done three years before, confined reviews to “major projects” rather than all involving the federal government.

Remember that before Harper as PM, it used to be that all projects involving federal land, federal money or projects requiring a federal permit had to be reviewed under CEAA, and follow establish criteria. Then Harper’s government created a "project list” of far fewer targets for review, with no standard criteria.

And how did a project get on that list? It was put there by the minister at the moment. The Liberals’ C-69 reserved for the minister similar powers to designate what projects were “major” and so should be reviewed.

As a result, many smaller federal projects that would have been subject to early review — and changed to do less harm to nature as they evolved — simply pushed ahead under the radar.

But don’t mistake small for inconsequential. Sometimes a species’ key habitat can be removed through a relatively small project.

Here is just one example. When the Vancouver airport built a new pipeline for jet fuel through key salmon habitat there was no requirement that the minister be informed. And she wasn’t. Only after it was built, and fisheries scientists raised the alarm, did anyone know.

A second chance

That is still the state of our laws. And that is why I am encouraged by the recent Supreme Court decision against the very part of the C-69 I warned against — an environmental assessment process that places too much power in the hands of the federal minister and what happens to land on an arbitrary list of designated projects.

Now that the court has ruled, at last we have a chance to repair what was wrecked by Harper!

My party, the federal Greens, are asking Environment Minister Steven Guilbeault to repair the Impact Act guided by the court’s ruling.

Yes, do remove the discretionary “designated projects” list.

And return to the advice from the ignored blue-ribbon panel received back in 2017.

Those experts gave a broad definition of projects worthy of assessment — ones involving “at a minimum, federal lands, federal funding and federal government as proponent as well as Species at Risk, fisheries, marine plants, migratory birds, greenhouse gases, Indigenous peoples.”

The panel also recommended establishing “a quasi-judicial tribunal empowered to undertake a full range of facilitation and dispute resolution processes.”

So the court has given the Liberals a chance to get it right this time. Please don’t blow it. This time create clear criteria for reviews and make a more thorough, less politicized way to protect Canada’s precious ecosystems whenever they lie in the path of development.