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Best Opportunity in a Generation for Environmental Law Reform
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Best Opportunity in a Generation for Environmental Law Reform

[caption id="attachment_22697" align="alignleft" width="150"]Image of Stephen Hazell Stephen Hazell
Director of Conservation
and General Counsel[/caption] Today is a good day for nature. Today, the federal government announced its decision to establish two separate expert panels to review federal environmental assessment and National Energy Board laws, and to refer the Fisheries Act and Navigation Protection Act to the respective House of Commons committees for review. This represents the best opportunity in a generation for reform of federal laws that govern development of natural resources. Today, the government released draft terms of reference for the two expert panels, providing a 30-day period for comment. Following the comment period, the two expert panels would carry out their public review with a broad mandate and report back to the government by the end of January 2017.  The parliamentary committees would commence work in September when the House of Commons reconvenes, and would have narrower mandates focused on reversing the changes to these laws legislated by the previous Conservative government. These reviews also represent a good opportunity to rebuild public trust in environmental assessment and institutions, which public trust has suffered greatly in recent years given the approaches to pipeline development taken in recent years by the National Energy Board. After receiving reports from the four review bodies, the government would bring forward proposals for legislation, regulations and policies in 2017. The decision today shows that our members voices are heard and Nature Canada is very pleased that the government is working on strengthening Canada's environmental laws. Nature Canada is also pleased that the government has revived the environmental assessment advisory committee (a multi stakeholder body with representatives of environmental, industry and indigenous organizations) which provided consensus-based advice to the government on environmental assessment issues. The advisory committee was established in 1992 and worked until 2008 when the previous Conservative government discontinued the operations of the advisory committee. The government’s decisions provide opportunities for better laws to conserve nature and promote sustainability; they will not necessarily lead to the outcomes we want for nature. Whether we get better environmental laws will depend on Nature Canada’s members and supporters together with naturalists, environmentalists and other Canadians to let these review bodies know what is needed. Catch the latest news on this environmental law reform by checking out CBC and iPolitics.

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Environmental Deregulation in Ontario’s Bill 55 Should be Condemned
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Environmental Deregulation in Ontario’s Bill 55 Should be Condemned

[caption id="" align="alignright" width="320"]Image of an Acadian Flycatcher Acadian Flycatcher. Photo: Jim Richards[/caption] Proposed changes to environmental legislation, hidden inside a large budget bill, threaten to weaken protections for endangered species and obstruct the public's right to participate in environmental decision-making.

Am I talking about the federal government's omnibus budget bill? Not this time.
Unfortunately, this latest blow to wildlife is happening at the provincial level, where the Ontario Government has put forward changes to the province's Endangered Species Act, and several other environmental laws. These changes would hinder, not help efforts to protect Ontario's most vulnerable species.
Bill 55, the Strong Action for Ontario Act (Budget Measures), 2012,removes the requirement that new resource or development projects result in an overall benefit for species at risk, and does away with the requirement to protect the habitat of endangered species on large areas of private land. This, despite the fact that most of Ontario's endangered species are found in southern Ontario where land is 90% privately owned.
Bill 55 also removes the deadline for developing recovery plans for species at risk listed before 2007. With no deadline, there's little chance that action will be taken to save those species.
Nature Canada has joined with dozens of leading nature conservation organizations, and with naturalists inside Ontario and throughout the country in condemning these proposed changes. You can read this open letter to Premier McGuinty for more information and to see which groups signed it.
Here, though, from the letter:
The weakening of environmental laws that were designed to protect the health of our lakes, forests and wildlife is deeply disturbing. To do so by circumventing the requirements of the Environmental Bill of Rights through omnibus legislation that denies the possibility for open public debate is very troubling.  We thus fully support the recommendation of Ecojustice and the Canadian Environmental Law Association, “that the environmental statutes, particularly those related to species protection, sustainable forest operations, protected areas, lakes and rivers protection, and public lands be withdrawn from the Schedules of Bill 55.”

Five Reasons to Speak Out on Dismantling of Canada’s Environmental Laws
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Five Reasons to Speak Out on Dismantling of Canada’s Environmental Laws

Right now, Parliament is pushing through a bill to weaken most of the country’s most important environmental protection measures and silence Canadians who want to defend them. Far from a traditional budget bill, this "statutory juggernaut", amends, or repeals nearly 70 federal laws -- and instead of using the usual process for sweeping changes, which allows for thorough debate, these changes are being shoehorned into law in a way that could be without precedent.
It's time to speak out. Many groups and charitable organizations who are devoted to the cause of nature conservation have launched Black Out Speak Out -- and we hope many more individuals and organizations who cherish both nature and democracy will join us.
Here are the top five reasons to Speak Out:
  1. The Canadian Environmental Assessment Act is being replaced with a totally new law, which is weaker. It’s also being done retroactively—so projects in the works, like the Enbridge Northern Gateway pipeline, could get an easier ride.  Under it, Ottawa will play a much smaller role in protecting people from many harmful projects.  But it retains the right to basically rubber-stamp big projects that powerful oil interests want.
  2. Citizen groups could well be shut out of environmental reviews of big projects like oil pipelines. Key government agencies with expertise will also have less input. Backroom and political operatives will have more.
  3. The government is adding $8 million in new funding for the Canada Revenue Agency to audit charities – including environmental groups – because they use their legal right to advocate for things like fighting global warming. This will have a chill effect on democratic debate.
  4. Right now, the National Energy Board decides whether major energy projects should go ahead, especially big ones involving oil.  The government is taking away that authority and giving it to Cabinet instead – so politicians can overrule the expert energy regulator if they don't like their decision.  Permits that allow the destruction of habitat for fish and threatened or endangered species will now be issued behind closed doors without public scrutiny.
  5. Many lakes, rivers and streams that provide habitat to fish will be at greater risk of destruction. Healthy fish habitat is important for fish and for the people and businesses that depend on them.

Calling All Bloggers: Black Out, Speak Out for Nature and Democracy
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Calling All Bloggers: Black Out, Speak Out for Nature and Democracy

Today, the country’s leading environmental organizations launched a campaign to protest against unprecedented attacks on two core Canadian values: nature and democracy.
Known as Black Out Speak Out (or Silence, on parle, in French) the campaign invites organizations, businesses and anyone with their own website to darken their websites on June 4, and speak out against the dismantling of Canada’s environmental laws.
Check out our full-page ads in the Globe and Mail, La Presse and Ottawa’s Hill Times. And go to www.blackoutspeakout.ca or  www.silenceonparle.ca to learn more.
Silence is not an option for Canadians who care about the protection of nature and democratic discussion. Changes introduced in the federal government’s budget act (C-38) are placing the future of our land, water and climate at risk. The changes are making it easier to rush headlong into potentially damaging industrial projects, and harder for Canadians to have any say.
If you have a blog, and you care about nature and democracy, help us spread the word about our cause. For the next month, you can also speak out on Twitter using #blackoutspeakout, and share our facebook page, at www.facebook.com/BlackOutSpeakOut. And, we invite you to join in our nationwide action, and darken your site on June 4. 
Participating environmental organizations include CPAWS, David Suzuki Foundation, Ecojustice, Environmental Defence, Equiterre, Greenpeace, Nature Canada, Pembina Institute, Sierra Club of Canada, West Coast Environmental Law, and, WWF Canada.
We hope you'll participate in the campaign.

4 Myths about Changes to Canada’s Environmental Laws
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4 Myths about Changes to Canada’s Environmental Laws

There's been a whole lot of talk these past weeks about the future of Canada's environmental laws. Are the Prime Minister's proposed changes a much-needed streamlining of environmental reviews? Or are we witnessing the gutting and slashing of a generation's worth of environmental protections?
After releasing a budge that clearly placed resource exports over environmental health, the government has followed through with legislative changes that severely weaken the environmental safety net that Canadians have long depended on for clean air, water and land.
Among other changes, the Conservative government will significantly reduce federal environmental oversight of natural resource development projects, impose limits on who can participate in environmental reviews and reduce the time permitted to review projects.
To defend these moves, the government has offered a variety of arguments that are, well, highly arguable. Here are just some of the myths circulating out there, along with a reality check:
 
[separator headline="h2" title="Myth 1: Streamlining “environmental reviews for major projects will increase certainty for project investors”."]
 
On the contrary, denying adequate public review of development projects and abandoning the federal government's role in reviewing such projects are a recipe for conflict, litigation, and a patchwork of conflicting provincial measures that will result in uncertainty and unpredictable delay for projects.
Already, First Nations leaders have reacted to plans to cut short the approvals process for the Northern Gateway Project with threats of legal action, and law experts predict a raft of law suits that will tie up the project for years.
Pushing projects through, and limiting public involvement, will only serve to erode the public's confidence in the project's safety, a lack of support few investors would welcome.
 
[separator headline="h2" title="Myth 2: Environmental reviews can be handed over to the provinces because “one project, one review” is all Canada needs."]
 
It is the federal government's number one job to protect the safety and security of its citizenry. Canadians depend on the federal government to safeguard our families and nature from pollution, toxic contamination and other direct threats to our physical well-being.
Eliminating or limiting federal environmental reviews means eliminating the environmental safety net for things like fish and fish habitat, which are the federal government’s legal
responsibility.
Provincial environmental assessment processes are inconsistent from each other and often weak, lacking key safeguards of the federal process.
 
[separator headline="h2" title="Myth 3: Environmental review of projects hurts the economy, so strict time limits are needed to push projects through more quickly"]
History has taught us that rushed and superficial public review of megaprojects risks leaving taxpayers on the hook for multibillion dollar clean-up costs when things go wrong later. Think Giant Mine in Yellowknife. Or the pulp and paper mills of Dryden, Ontario.  Or radiation clean up in Port Hope.
The key purpose of environmental assessment is to “look before you leap” – that is, to carefully consider the long-term environmental consequences of a development proposal before deciding whether or how to proceed. While other federal laws are more reactive and not engaged until after damage to the environment has already occurred, environmental assessment is one of the few institutionalized processes Canada has developed to prevent environmentally harmful activities or projects from being approved in the first place.
By preventing problems before they start, environmental assessment is good for the economy. Making sure a project is environmentally sound before it begins is alot easier -- and cheaper – than after the fact.  Just ask BP whether preventing an oil spill is a better option than having to clean one up.
Canada needs a measured and thoughtful approach that ensures that we approve projects that make the greatest contribution to a sustainable economy and put them in the right place, not a ‘rubber stamp’ for development at all costs.
  [separator headline="h2" title="Myth 4: Proposed legal changes “modernize” the regulatory process."]
Dismantling Canada’s environmental laws, if done as planned, turns back the clock several decades. Canadians have spent 30 years working to build up our environmental laws so that the disasters of our past – the Sydney Tar Ponds, the death of Lake Erie, the Bennett Dam flooding – are not repeated. We are still paying for these disasters with compromised health and with taxpayer dollars.
(Thanks West Coast Environmental Law for sharing background material that helped me put this post together).
 

Bedford Biofuels Continue to Threaten Tana Delta
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Bedford Biofuels Continue to Threaten Tana Delta

On 7 September we told you about the threats to Kenya’s Tana River Delta Important Bird Area from plans by the Canadian company Bedford Biofuels to establish a jatropha (biofuel) plantation. Since our post Bedford has been in touch to express their disagreement with our criticism of their project (see the comment posted). However, our concerns continue. Nature Canada has written to the Canadian government to bring our concerns to their attention and find out whether the government is supporting this project. We will let you know their response. 
 
In the meantime, here is a summary of the latest information provided by our BirdLife partners at Nature Kenya:
At the start of this week Bedford Biofuels and Nature Kenya met in Nairobi. Bedford was accompanied by their lawyer and more than 20 people from the Delta supporting the Bedford proposal. However unfortunately despite a long (around 5 hour) and at times rather tense meeting Bedford was not prepared to recognize the concerns of Nature Kenya and others from the Delta or willing to respect the land use planning process under way. 
 
In summary, Nature Kenya and others are worried that jatropha is untested, that Kenya has yet to adopt a biofuels policy and that 10,000 ha is too big to be a pilot. Also that the proposed project is within the very sensitive Delta floodplain and that there needs to be a land use plan for the Delta in place to provide a strategic framework before individual large-scale developments proceed. For all these reasons Nature Kenya is maintaining their challenge to the Bedford consent and hoping that the Kenyan Government will act on NEMA (the National Environment Management Authority) advice to cancel the Bedford consent. 
 
It is very encouraging to see the land-use planning process for the Delta now firmly underway. Between 14-17 September around 65 participants took part in a high-level meeting in Malindi to discuss the need for a strategic plan for the Delta. The Kenyan Office of the Prime Minister (OPM) hosted the meeting with NEMA and Nature Kenya jointly providing the Secretariat. It was attended by representatives from key Kenyan government ministries and agencies including NEMA, the Ministries of Finance, Lands, Agriculture, Environment and Mineral Resources, Water and Irrigation, Fisheries, Kenya Forest Services, Kenya Wildlife Service, TARDA (Tana and Athi River Development Authority), together with NGOs, media and international experts in the fields of land use and delta planning and environmental assessment. The meeting included a workshop plus a field visit into the Delta to provide the opportunity for participants to see the Delta and speak to the local people to understand the issues first hand.
 
The meeting closed by adopting a Communiqué of the Inter-Ministerial Consultative Meeting on the sustainable development of Deltas in Kenya. This confirmed the launch of the Tana Delta planning initiative, including agreement on a road map leading to the long-term sustainable development of the remarkable Tana River Delta in ways that will provide for economic prosperity, stable social conditions and lasting environmental quality.
 
Specifically the meeting agreed:
 
    • To the establishment of a local Tana Delta planning process which will be steered by a local committee (the Planning Implementation Committee) and will involve a combination of strategic planning and strategic environmental assessment (SEA) 
 
  • The output will be a long-term strategic land use plan representing a ‘truly sustainable’ future to the Delta.
   
  • That this process will combine scientific, economic, social and environmental evaluation tools alongside extensive public participation and will be a collaborative exercise involving all relevant government ministries and agencies, counties, districts and communities, Civil Society and NGOs, International Partners and investors
   
  • The process will take place over the next 18 months, with the support of DFID (UKAid).
 
Things are now moving quickly with the Inter-Ministerial meeting scheduled to meet again on Tuesday 27 September to discuss the terms of reference for the SEA. This is exciting news.
 
 

Review of Enbridge Northern Gateway Project Begins
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Review of Enbridge Northern Gateway Project Begins

Photo: Tom Middleton
On July 12, 2011, Nature Canada and BC Nature officially registered to participate as interveners in the environmental assessment review of the Enbridge Northern Gateway Pipeline project. As interveners, Nature Canada and BC Nature will provide information on the impacts that the project could have on birds, bird habitat and terrestrial wildlife to a panel that will ultimately decide whether the project is in the public interest. As we've said here before, this tar sands shipping project poses unacceptable risks to the ecosystems and biodiversity of the Northern B.C. Coast. There are 28 Important Bird Areas in the Northern B.C. coast and the whole Queen Charlotte Straight is an extremely globally important area for marine birds, other marine animals and fish. This rich ecosystem would be exposed to oil pollution from increased tanker traffic and an impossible-to-rule-out oil spill. The pipeline will also fragment the pristine habitat of boreal birds and other wildlife, including Caribou and Grizzly Bears. Over the next year or so (assuming no delays) a Joint Review Panel (JRP) will examine the application submitted by Enbridge, as well as evidence and comments from First Nations, individuals, environmental organizations, and other interested persons regarding the project and its environmental impacts. There JRP will hold hearings starting in January 2012 to decide whether the project is in the public interest. The deadline to register as an intervener today, Thursday, July 14, but there are other ways you can  participate and comment. We hope that the Panel will not allow the project to proceed after considering the impact on wildlife and many other objections to the project, particularly from First Nations. But we're at least a year away from that decision with much work ahead. We will keep you posted!

The EnCana Trial That Wasn’t
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The EnCana Trial That Wasn’t

In 2007, EnCana (now Cenovus) was charged with violating the Canada Wildlife Act by building a section of a pipeline without a permit within CFB Suffield National Wildlife Area.

The trial was postponed numerous times -coincidentally, as EnCana's proposed project to drill more than 1,200 wells in the Suffield National Wildlife Area was undergoing an environmental assessment review. A year ago, the case was stayed temporarily. Now, it turns out that legally speaking it never happened.
The government has yet to make a decision on whether the Cenovus project will be approved and, if so, under what conditions.
Given that the panel that conducted the environmental assessment concluded the project would interfere with the conservation of wildlife, and set a very high bar for any approval, one could speculate that the "disappearance" of those charges are one less thing for the government, and Cenovus, to worry about.
Of course those of us concerned about the enforcement of wildlife conservation laws and the integrity of Suffield National Wildlife Area, have one more thing to worry about. Canadians need to have confidence that their government will uphold and enforce the rules intended to protect this irreplaceable wildlife habitat, including environmental assessment conditions.

Time to Say NO to the Mackenzie Gas Project
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Time to Say NO to the Mackenzie Gas Project

The time has come for the National Energy Board (NEB) to reject the proposed Mackenzie Gas Project (MGP).A decision by the NEB on the proposed $16 billion megaproject is expected in the coming weeks. The Joint Review Panel (JRP) that exhaustively reviewed the social and environmental impacts of the proposed project made 176 recommendations for approving the project so that it could provide a foundation for the sustainable development of the North. The Governments of Canada and Northwest Territories, even as they claim to accept the majority of the JRP’s recommendations, are in fact rejecting the JRP’s framework for implementing the project sustainably. In their final response, the Governments’ have only accepted 11 of the 115 recommendations directed to them by the JRP and in most cases, they have not addressed the JRP’s objections to the Governments’ proposal for changing the JRP recommendations. (Actually, despite a JRP call for transparency, the interim governments’ response was never made public and the Panel’s response to it was only available on Environment Canada’s website for a limited period of time before being taken down.) The Panel concluded that “in the absence of implementation of its Recommendations, and in particular those Recommendations directed to the Governments, the adverse impacts of the Project could be significant and its contribution towards sustainability could be negative. In that event, the opportunity for the Project to provide a foundation for a sustainable northern future would be lost.” (Emphasis in the original.) As we said to the NEB in our 22 November 2010 letter, proceeding with the project without implementing the recommendations of the JRP would compromise a sustainable future for the North. Therefore the project is not in the public interest and the NEB must reject it. On December 1, 2010 Nature Canada wrote again to the NEB to bring to their attention a recent event that illuminates what the governments’ claims to accept “the intent” of a recommendation might actually mean: Panel recommendation 11-2 calls for providing areas identified as of high conservation value through the NWT Protected Areas Strategy with interim protection until permanent protection is achieved. The governments accepted “the intent” of this recommendation. How is the Canadian government following through? On October 28, 2010 the government failed to renew crucial interim subsurface protections that had been in place for over eight years on the land beneath Edéhzhíe, leaving the area open to mining claims. Edéhzhíe is one of the most revered sites of the Dehcho and Tłicho Dene communities around western Great Slave Lake, and a candidate National Wildlife Area identified through the NWT Protected Areas Strategy (Step 5) and sponsored by the Canadian Wildlife Service. This is one of 77 important recommendations for which the governments claim to “accept the intent”. Ten recommendations that are key for the sustainability of the project were rejected. Sustainability should be the guiding principle for this basin-opening project. It won't be. The NEB should reject the MGP.

Governments Reject a Sustainable Approach for the Mackenzie Gas Project
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Governments Reject a Sustainable Approach for the Mackenzie Gas Project

This week, the Governments of Canada and the Northwest Territories released their final response to the environmental assessment of the proposed Mackenzie Gas Project.
Nature Canada is gravely concerned that, despite claiming they have accepted most of the recommendations, the Governments have accepted only 11 of the 115 recommendations to government from the Joint Review Panel that studied the environmental impacts of the proposed Mackenzie Gas Project.
The governments' response plainly dismisses the principles of sustainable development by rejecting recommendations on the grounds that they would constrain development. The governments’ refusal to commit to implementing all of the Panel’s recommendations creates the unsustainable conditions that the Panel warned about in an October 4 letter. “The Panel has concluded that, in the absence of implementation of its Recommendations, and in particular those Recommendations directed to the Governments, the adverse impacts of the Project could be significant and its contribution towards sustainability could be negative. In that event, the opportunity for the Project to provide a foundation for a sustainable northern future would be lost.”
Nature Canada is deeply concerned about the devastation that could be unleashed on important wildlife areas across the Northwest Territories as a result of the Government’s aggressive stance against the Panel recommendations. We are now studying the government response in more detail and will comment again soon. The National Energy Board is due to make a final decision on the project, likely before Christmas.

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