Posted on September 13, 2012

Bill C-38 Affects on Environmentby Darryl Luscombe

Bill C-38, The Jobs, Growth and Long-term Prosperity Act, received Royal Assent and became law in Canada on June 29th, 2012. The Omnibus Budget bill is the most targeted  attack on democracy, the environment and environmental advocates by any Canadian government in history.

Greater Power to the Minister

The Bill significantly rewrites the Canadian Environmental Protection Act (CEPA) to limit its scope and permit greater Ministerial discretion over which projects are subject to review and scrutiny.

Whereas CEPA required an environmental assessment whenever a federal department exercised a certain range of powers or provided financial assistance, the new CEPA 2012 only subjects “Designated Projects” to Environmental Review. “Designated Projects” will be determined by regulation and at the discretion of the Minister for the Environment.
If a project is “Designated,” the Canadian Environmental Assessment Agency (CEAA) will determine if an Environmental Assessment is required. Projects which will be subject to screening, must be posted to the Agency’s website within 10 days of the  receipt of the project proposal and the CEAA must complete its screening within 45 days. Public input at this stage will be limited to the first 20 days of the process.
This is an incredibly short time frame for the CEAA to carry out a screening assessment and it would be naïve to assume that it will be any more than a series of checks against a standard set of criteria. In fact, the new CEPA also allows for “Class Screening” to apply to projects that fall into certain categories or classes of project, although these are not specifically defined in the Act itself.
It is important to note that one of the criteria in determining if an Environmental Assessment will be required is, “s20(1)(c)(iii) … public concerns warrant a reference to a mediator or a review panel.” As such, public input at this early stage can be seen as critical to ensure projects undergo a thorough review of the potential environmental impact.
If the initial screening determines that a project should be subject to an Environmental Assessment, the legislation sets only four Responsible Authorities to conduct them: the Canadian Nuclear Safety Commission (CNSC), the National Energy Board (NEB), the CEAA, or a Review Panel.
Under the previous CEPA, more than 40 Federal Agencies could be tasked with this role, depending on the project and where the predominant risk to the environment was present in the proposal or various other triggers the project invoked. Bill C-38 does provide for other responsible authorities to  be designated at the Minister’s discretion, although there are no triggers or requirements for any other agencies to be given the lead role in the review process.

Final Decision to the Minister

If the Minister determines a project should be referred to a Review Panel for assessment, the final decision maker in the process will be the Minister. If any of the three federal agencies or a review panel find that a project may result in “significant adverse environmental effects,” the decision must be sent to Federal Cabinet for review and the Cabinet will determine if the project should proceed or not.

Strict Time Limits

Strict time limits are imposed in Bill C-38 for the assessment process. If a project is subject to an environmental review by any of the three lead agencies (CNSC, NEB, or CEAA), the assessment must be completed within 365 days after the project is initially listed on the CEAA website. If the Minister refers the project to a Review Panel, the timeline is extended to two years for a final decision.
One important point is that the time limits are not necessarily as strict as they appear. If a Responsible Authority or a Review Panel requires the proponent of a project to conduct environmental studies, such as collecting baseline data, the time limits are extended by the time required to carry out those studies. The Minister may also extend the deadline by a discretionary period of up to three months.
However, if the Minister determines that the timeline has been exceeded, the legislation provides for the Minister to make a decision based solely on the information available at that point of the process.
The insidious nature of this rewriting of CEPA does not stop there. One of the most contentious provisions of the new Act is the definition of an “Interested Party,” that is, who can have standing to appear before a Review Panel or present evidence to an Environmental Assessment. The legislation states that, “interested party means, in respect of an environmental assessment, any person or body having an interest in the outcome of the environmental assessment for a purpose that is neither frivolous nor vexatious.” [emphasis added]
This provision appears to give incredible discretion to exclude public participation at the whim of a federal agency or the Minister. Especially given that a common definition of vexatious is, “Causing or tending to cause annoyance, frustration, or worry.”

Cuts to Core Science Research

Equally serious is the Harper government’s attack on science and the ability of the Canadian public service to provide impartial scientific advice in the public discourse. Through petty and seemingly vindictive and narrow minded ideology-based decisions, Harper has cut funding for many of the core scientific research areas in which Canada has provided leadership and clarity to the world on key environmental issues.
One glaring example is cutting funding to the Experimental Lakes Area (ELA) research station in Ontario. This research station was instrumental in proving the reality of acid rain and the devastating effects of industrial pollution on forests and ecosystems around the world. The ELA is an unique research facility, which has been able to monitor and elucidate key environmental impacts on the terrestrial environment for over 40 years for a very small cost. Once this facility is closed, the baseline data they have been diligently collecting for all those years will be lost. The staff will disperse and go to countries that value knowing about the impact of humans on the environment.
Similarly, Harper has cut the funding for a number of marine research programs, including the Department of Fisheries and Oceans (DFO) contaminants program. This effectively eliminates the federal government from any monitoring of toxic pollutants in the marine environment. Canada has been, up until now, a world leader in monitoring the impact of Persistent Organic Pollutants in marine mammals.

Fast Tracking Tar Sands Export

It is difficult not to see the gutting of science in DFO, the changes to CEPA and the major gutting of the habitat protection provisions of the Fisheries Act in any other way than as a means of fast-tracking the export of tar sands oil from Alberta to Asian markets.
After all, if you have no idea what the consequences of your actions are, what the conditions were before you begin, then you have no worries about approving the dirtiest and most destructive projects.
It is obvious the Harper Government has decided that pollution and oil are the route to prosperity for our country, and the primary focus of the attack is to weaken democratic values and enact a policy of arbitrary exclusion and decision making.
The real question is whether we, Canadians, are going to accept this fundamental attack on our values, or whether this is the time to organise and speak out. For me, silence is not an option.

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Dr Darryl Luscombe has a PhD in Chemistry and has been involved in toxics issues globally for the past 20 years. He lives in rural BC and spends his time working as a short-order cook, a photographer, and as an environmental consultant.

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