Excerpted from posts by Paul Manning, Manning Environmental Law, June 27 and July 12. Mr. Manning’s client base includes corporations, organizations, Aboriginal communities and individuals.
On Bill C-38 as it applies to environmental assessments:
• Environmental assessment (EA) will only be required for “designated projects” established by regulation or by the Minister of the Environment. An EA will no longer be automatically required for projects that involve federal money. The concern: that the discretionary basis for designating projects will result in fewer EA’s being conducted and leave gaps in terms of which projects and which activities are subject to EA.
• The focus of environmental assessments will be on significant adverse environmental effects of designated projects directly linked or necessarily incidental to federal approval. “Environmental effects” is given a variable meaning depending on circumstances. At its narrowest it means only effects on fish, aquatic species and migratory birds. The concern: that this limitation will compromise the scope of analysis required for a systematic, consistent and thorough assessment.
• Time limits for the issuance of a decision on an EA are introduced. Additional time may be granted at the discretion of the Minister and Governor in Council. The concern: that this may not allow sufficient time for thorough assessment and full public participation.
• Federal environmental assessments are not required in situations in which a province provides an equivalent substitute. The concern: that, despite ‘equivalency”, differences in federal and provincial regulatory requirements and responsibilities will result in inconsistent standards in EAs across Canada.
• Public participation will be significantly minimized for those projects that must undergo panel reviews or for pipeline projects. For panel review projects the public will still be permitted to submit written comments regarding a project. However, only “interested parties” will be permitted to participate at hearings. The concern: that this limitation will deny a voice to those representing environmental interests. The public interest in the environment impact of a project is broader than the personal and property interests of individual objectors.
• Federal authorities may not carry out, or do anything authorized by another Act that would permit a non-designated project on federal lands, unless the authority determines carrying out of the project is not likely to cause significant adverse environmental effects; or the Governor in Council decides that those effects are justified in the circumstances. The concern: that these are issues that should properly be tested in the public forum of an EA hearing.
On what the budget means for Aboriginal environmental rights
Aboriginal groups are among several who have voiced the concerns referenced in our post about the bill’s removal of environmental protections. Even where the changes ostensibly retain protection for Aboriginal interests, the precise scope of that protection remains unclear.
Bill 38 also replaces the Canadian Environmental Assessment Act, with the Environmental Assessment Act 2012, which is limited, at its narrowest, to an assessment of environmental impacts on fish, aquatic species, and migratory birds.
However, these impacts are extended with respect to Aboriginal peoples, to an effect occurring in Canada of any change that may be caused to the environment on (i) health and socio-economic conditions, (ii) physical and cultural heritage, (iii) the current use of lands and resources for traditional purposes, or (iv) any structure, site or thing that is of historical, archaeological, paleontological or architectural significance.
On the face of it, Aboriginal interests are protected. However, it is unclear, for example, whether “the current use of lands and resources for traditional purposes” encompasses all Aboriginal and treaty rights.
More problematic perhaps than the reduction in direct statutory protection is the associated potential reduction in Aboriginal consultation where there is no longer a requirement for an approval that triggers the Crown’s duty to consult. In order for the duty to arise, the Crown must contemplate conduct that may affect an Aboriginal claim or right.
The grant of an approval is a clear-cut example of such conduct, and usually a transparent process in which adequacy of consultation may be assessed. Often, the approval procedure (or the appeal procedure for such approval) will be the forum in which the adequacy of consultation can be challenged and adjudicated.
The process becomes opaque where the requirement for an approval is lost. So, for example, Bill C-38 removes decisions on major pipelines from the National Energy Board to the Cabinet. While this should still engage the honour of the Crown and the duty to consult, it becomes a political decision lacking the transparency and the due process of an approval. It also lacks a process for challenge save through the potentially expensive and difficult recourse of a challenge in the courts.
For those projects that need neither permit nor Cabinet approval, it becomes even more difficult to identify Government conduct that triggers the duty to consult, save perhaps where there is a “strategic, higher level decision” such as that found to trigger the duty by the Supreme Court of Canada in Sekani.
Some may argue that there are “strategic, higher level decisions” behind Bill 38 itself, which engage the honour of the Crown and which in turn required consultation before implementation.