Posted on February 9, 2018 (updated: June 19, 2019)

Legal experts say feds environmental bills are a mixture of progress and disappointment

OTTAWA – Law experts are calling the environmental legislation introduced this week a promising start, and note that further changes will be needed to fulfil the federal government’s promises to enact modern laws that protect the environment, the climate and Canadians.

“We went into the review process optimistic and hoped lawmakers would heed the recommendations of the environmental community and its own expert review panels on how to strengthen Canada’s environmental laws,” said Joshua Ginsberg, Director of Legislative Affairs at Ecojustice. “While this week’s bills include some useful advances, they miss the mark in many important ways”.

The federal government introduced bills replacing the Canadian Environmental Assessment Act, 2012 and the National Energy Board Act with the Impact Assessment Act and the Canadian Energy Regulator Act, and amending the Fisheries Act and the Navigation Protection Act — now called the Canadian Navigable Waters Act.

“The newly introduced Impact Assessment Act, includes a number of progressive changes, but falls short of the complete overhaul that’s needed to restore public trust in reviews and meaningfully protect Canadians and the environment,” Ginsberg continued.

Positive aspects of the new law include: A single agency to conduct assessments, mandating consideration of a broader set of factors like contribution to sustainability, Indigenous knowledge and Canada’s climate commitment, and increased transparency around decision-making. Problematically, it fails to replace the discretionary approach to  protection in the previous law with new mandatory environmental bottom lines. It also makes no meaningful advances on badly-needed regional assessments or strategic assessment of government policy, which have no defined process, would only be initiated at the whim of the minister, and would not have legally binding consequences.

Meanwhile, Ginsberg called the proposed Canadian Energy Regulator Act (CERA) underwhelming.

“The Canadian Energy Regulator Act is fairly unambitious to say the least. Ultimately, the CERA falls short of our key recommendation: To task an independent agency with reviewing energy projects, such as pipelines.  Instead, this draft legislation signals a return to the equivalent of the joint review panel process that operated prior to the 2012 rollbacks, in which the energy regulator played a prominent role – at a time when trust in the regulatory body is at an all time low,” Ginsberg explained.

Proposed amendments to the Fisheries Act received high marks.

“We were pleased to see that many of the protections that were lost to the Harper government’s 2012 rollbacks will be restored — especially the ban against harmful alteration, disruption or destruction of fish habitat. The return of the HADD ban should breathe new life into our efforts to achieve the broad, precautionary and enforceable legal protection needed to safeguard Canada’s fish habitat,” said Ginsberg.

The same cannot be said for the protection of Canada’s navigable waters.

Amendments introduced by the Harper government in 2012 drastically reduced protections given to navigable waters in Canada,eliminating  environmental assessment requirements. The government had made a number of promises aimed at restoring and enhancing environmental protection for Canada’s waters. It seems those promises will go unfulfilled, said Ginsberg.

“The bill amending the Navigation Protection Act falls short of what’s needed to protect Canada’s water systems and fails to restore the protections that were lost in 2012. The new bill appears to have eliminated any consideration of the environment in decision-making when it comes to navigation,” said Ginsberg.

“Ecojustice is committed to using our legal expertise in the coming months to work with elected officials to make the changes necessary to ensure these bills become laws that will safeguard Canadians and the environment.”

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