Proposed Environmental Bill of Rights includes whistleblowing protection for Alberta workers

Capping a series of related reports on the topic , the Alberta Environment Law Centre published  Environmental Rights in Alberta: An annotated Environmental Bill of Rights for Alberta  in March. The report consists  of model provisions for a statute, along with annotations providing background information.  Amongst the proposed provisions  is protection from reprisals for employees (Whistleblower protection) – which would expand protection from reprisals beyond the existing Alberta legislation, the Public Interest Disclosure (Whistleblower) Protection Act,  which protects government employees only.

To encourage broad public  participation on environmental issues, the report also addresses the issue of Strategic lawsuits against public participation (SLAPP suits) –  “A SLAPP suit is a claim for monetary damages against individuals who have dealt with a government body on an issue of public interest or concern. It is a meritless action filed by a plaintiff whose primary goal is not to win the case but rather to silence or intimidate citizens who have participated in proceedings regarding public policy or public decision making.”

boyd cover the rights of natureFrom the introduction:  “It should be noted at the outset that the Environmental Law Centre drew greatly from David Boyd’s enormous academic contributions in this area. In particular, his article Elements of an Effective Environmental Bill of Rights was an invaluable resource in designing our model EBR” .  Boyd’s most recent book is  The Rights of Nature: A Legal Revolution that Could Save the World (Toronto: 2017, ECW Press).

National Energy Board is a casualty of Canada’s new legislation for environmental assessment

On February 8, following 14 months of consultation and review, the Minister of Environment and Climate Change introduced the mammoth Bill C-69 An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigation Protection Act and to make consequential amendments to other Acts  . The government press release from Environment and Climate Change Canada highlights these talking points about the proposed legislation-  It will:  Restore public trust through increased public participation; Included transparent, science-based decisions; Achieve more comprehensive impact assessments by expanding the types of impacts studied to include health, social and economic impacts, as well as impacts on Indigenous Peoples, over the long-term. Also, it promises  “One project, one review” – through a new Impact Assessment Agency, (replacing the Canadian Environmental Assessment Agency) which will be the lead agency, working with a new Canadian Energy Regulator (replacing the National Energy Board), as well as the Canadian Nuclear Safety Commission and Offshore Boards.  Further, it will make decisions timely; Revise the project list; Protect water, fish and navigation ; and Increase funding.  The detailed government  explanation of the changes  is here ; other summaries appeared in the National Observer in “ McKenna unveils massive plan to overhaul Harper environmental regime”  ; “Ottawa to scrap National Energy Board, overhaul environmental assessment process for major projects”   in CBC News; and in the reaction by The Council of Canadians, which expresses reservations about the protection of navigable waters, and these “Quick Observations”:
“1- the current industry-friendly Calgary-based National Energy Board would be replaced by a proposed Calgary-based (and likely industry-friendly) Canadian Energy Regulator
2- it includes the ‘one project, one review’ principle as demanded by industry
3- assessments of major projects must be completed within two years, a ‘predictable timeline’ also demanded by industry
4- the bill notes the ‘traditional knowledge of the Indigenous Peoples of Canada’ but does not include the words ‘free, prior and informed consent’, a key principle of the United Nations Declaration on the Rights of Indigenous Peoples
5- McKenna said that no current projects (including the Kinder Morgan pipeline which crosses more than 1,300 water courses) would be sent back to ‘the starting line’
6- the government is seeking to implement the law by mid-2019.”

An overview of other reaction appears in   “New Federal Environmental Assessment Law Earns Praise from Climate Hawks, Cautious Acceptance from Fossils” from the Energy Mix.  Reaction from West Coast Environmental Law (WCEL) is here ; and from  Environmental Defence here .  The Canadian Environmental Law Association sees some forward progress but warns that “the Impact Assessment Act is marred by a number of serious flaws that must be fixed in the coming months.”    Reaction from the Pembina Institute says “Today’s legislation improves the federal assessment process by centralizing authority for impact assessment under a single agency; providing a broader set of criteria for assessing projects including impacts to social and health outcomes; and removing the limitations on public participation that were put in place in 2012…. Building on today’s legislation, we would like to see progress towards the establishment of an independent Canadian Energy Information Agency to ensure that project reviews include Paris Agreement-compliant supply and demand scenarios for coal, oil and gas.”

Companion legislation, also the product of the lengthy Environmental Regulation Review, was introduced on February 6, Bill C-68 An Act to amend the Fisheries Act and other Acts in consequence  (Press release is here ; there is also a Backgrounder comparing the old and new legislation). Most importantly, Bill C-68 restores a stronger protection of fish and fish habitat – the HADD provision – to the definition used before the 2012 amendments by the Harper government. (HADD = the harmful alteration, disruption or destruction of fish habitat).  Reaction is generally very favourable:   The David Suzuki Foundation says : “The most important changes we were looking for are part of these amendments” and West Coast Environmental Law says that the proposed legislation   “meets the mark”.  Reaction is also favourable from the Ecology Action Centre in Halifax . And from the Alberta Environmental Law Centre, some background in “Back to what we once HADD: Fisheries Act Amendments are Introduced” .

no consentAnd finally, where does the new environmental assessment process leave Canada’s Indigenous people?  The new legislation includes the creation of an Indigenous Advisory Committee and requires that an expert on Indigenous rights be included on the board of  the new Canadian Energy Regulator body, according to a CBC report, “Indigenous rights question remains in Ottawa’s planned environmental assessment overhaul” . Minister McKenna is also quoted as saying the government will “try really hard” to conform to the principles of the UN Declaration on the Rights of Indigenous Peoples   – a statement that is not satisfactory to some Indigenous leaders.    See “Indigenous consultation and environmental assessments” (Feb. 7)  in Policy Options for a discussion of the issue of “free, prior and informed consent”.  On February 7, Private member’s Bill C-262, an Act to Harmonize Canada’s Laws with the United Nations Declaration on the Rights of Indigenous Peoples passed 2nd reading in the House of Commons.

Parliamentary committee recommends a legislated right to a healthy environment in its review of the Canadian Environmental Protection Act

On June 15, the Standing Committee on the Environment and Sustainable Development tabled its report, Healthy Environment, Healthy Canadians, Healthy Economy: Strengthening the Canadian Environmental Protection Act, 1999,   and the French version, Un Environnement Sain, des Canadiens et une Économie en Santé : Renforcer la Loi Canadienne sur la Protection de l’environnement (1999).

Called a “ground-breaking”  report by the David Suzuki Foundation, this review of  the Canadian Environmental Protection Act (CEPA)  makes 87 recommendations to modernize the law.  The Ecojustice blog ,  “Much to celebrate in committee report on Canadian Environmental Protection Act”  summarizes some of the recommendations, including  the  introduction of national drinking water and air quality standards; “stronger enforcement provisions to ensure polluters are held to account; improved transparency, public reporting and consultation requirements; and faster timelines to ensure regulatory action is taken swiftly once a toxic threat is identified”.  Most important, however, is the recommendation that the Act recognize and protect the right of every person in Canada to a healthy environment – a right recognized in 110 other countries.

The reaction  from  East Coast Environmental Law also notes this right to a healthy environment, and emphasizes the environmental justice implications:  “ The Report… suggests that the importance of environmental rights to Indigenous peoples and vulnerable populations should be emphasized.  … The Report acknowledges that environmental burdens aren’t shared equitably by communities across Canada, …… it also makes a number of recommendations that address environmental injustice. For example, it recommends that the Act be expanded to include an obligation to protect the environment in a non-discriminatory way; that it enhance the procedural rights that protect access to information, access to justice, and public participation in environmental decision-making; that it address the inequitable burden of toxic exposure in Canada; and that it recognize the principles enshrined in the United Nations Declaration on the Rights of Indigenous Peoples.”

The response from the David Suzuki Foundation also summarizes the recommendations, and makes clear that these are not yet law.  The  Minister of Environment and Climate Change, and eventually Cabinet, will consider the report, with legislation expected in the fall.   Ecojustice calls it “ a once-in-a generation opportunity to dramatically improve our most important environmental law.”

Environment and Climate Change Canada has compiled links to a history of CEPA . The Standing Committee website is here, with links to witnesses and the 68 briefs received.

 

Still advocating for Environmental Rights as Human Rights. Evidence from Alberta, and innovative proposals for Nova Scotia

The Pembina Institute recently compiled three case studies related to energy development in Alberta, in an effort to document the adverse effects on individuals, communities and regions that result from weak environmental laws or regulatory enforcement.  The Environmental Law Centre in  Alberta also  published a series of reports in late 2016, including a module, Substantive Environmental Rights , which discusses environmental rights as a human right. Since 2014, the Blue Dot campaign, led by the David Suzuki Foundation and Ecojustice ,  has been advocating for environmental rights to be enshrined in the Canadian Charter of Human Rights and Freedoms.

Now, from the Pembina Institute comes The Right to a Healthy Environment: Documenting the need for environmental rights in Canada.  It consists of:  Case Study #1:  Individual impacts of intensive hydraulic fracturing activity in rural Alberta   ;  #2 Community impacts of air pollution in urban central Alberta (related to coal-fired electricity plants), and #3 Regional impacts of oilsands development in northern Alberta   (which examines the rights of First Nations).

In Nova Scotia, the Nova Scotia Environmental Rights Working Group of the East Coast Environmental Law Association  released their proposed and innovative  Nova Scotia Environmental Bill of Rights  on April 21 2017.  The bill states that the people “have a right to a healthy and ecologically balanced environment”, and that the “primary responsibility” to protect and conserve that environment falls to the province.  It also states that “there is a history of environmental racism in Nova Scotia that has disproportionately and negatively affected historically marginalized, vulnerable, and economically disadvantaged individuals, groups or communities, particularly Indigenous People and African Nova Scotians”.  The bill is based on the Precautionary Principle, the Polluter Pays Principle, the Non-Regression Principle, the Intergenerational Equity Principle, and the Principle of Environmental Justice and Equity.  Nova Scotians go to the polls in a general election on May 30; a guide to the policy positions of the Liberal, Conservative and NDP parties is here at the CBC website.  According to the Ecology Action Centre in Halifax, the provincial NDP party has pledged to support an Environmental Bill of Rights .

 

 

 

 

Environmental Rights in Alberta and in Canada: do we have the rights we need? A legal discussion and some practical examples

In December 2016, the Environmental Law Centre in  Alberta  published a series of reports to review the current state of environmental rights in the province, drawing on examples and information from other jurisdictions.  These reports are intended as educational materials;  the website  is open for comments and input.  The first report,    Do we have the rights we need? , identifies deficiencies:   “Narrow standing tests for legal reviews and hearings; gaps and insufficiency in cost awards to support participation and informed decision making; failures to adequately recognize and manage cumulative environmental effects;  insufficient review or hearing options for policies, regulation and administration of environmental decision making; and insufficient tools for engaging public participation in enforcement.”

While most Environmental Rights discussions are about procedures for establishing and enforcing rights, the report Substantive Environmental Rights relates to the right to a specific environmental condition, such as a “healthy”, “healthful” or “clean” environment.  This report discusses definitions, which can be set in statutes or regulations.  The report includes a helpful comparative table of language from other Canadian jurisdictions.

Third Party Oversight and Environmental Rights reviews and analyzes the use of administrative third party oversight bodies in various frameworks and other jurisdictions. The report makes recommendations for the design of a third party environmental oversight system for Alberta, where currently the provincial Auditor General does not have a specific environmental mandate, but conducts financial audits or process/system audits of various environmental matters.

The latest report, published on December 19,  Citizen Enforcement considers the question of who can enforce environmental laws and what types of enforcement mechanisms are available to them – in Alberta, but also Ontario, Quebec, Yukon Territory, the Northwest Territories and Nunavut, and the U.S.    The  report concludes that citizen enforcement  in Alberta relies primarily on the use of private prosecutions and the ability to request an investigation of an alleged violation, and  recommends additional citizen-based enforcement tools to bolster  enforcement capacity and to ensure accountability.

As for practical examples of the need for citizen involvement in environmental assessments and decision-making, Canadians need look no further than the federal government’s  current review of the Environmental Assessment Processes .  “EA Review – Report back from a public workshop” at Evidence for Democracy describes one person’s experience at the Environmental Assessment public consultations and summarizes the main concerns of attendees – including the need for transparency, community and traditional knowledge, and open and independent science.  In two recent articles in DeSmog Blog,  scientists describe how their input has been ignored in past environmental assessments and decisions, including the TransMountain pipeline expansion decision.  Read  “Canadian Scientists Say They’re Unsure What Trudeau Means When He Says ‘Science’ ”  (Dec. 15)  and “Open Science: Can Canada Turn the Tide on Transparency in Decision-Making?”  (Dec. 20) .  Yet there is an eagerness amongst young Canadian scientists to become involved;  an Open Letter  to the Prime Minister in November, signed by 1,800 young scientists and researchers, calls on the government to return scientific integrity to the environmental assessment process, and outlines five ways to do that, including the use of best available evidence, making information and data available to the public, evaluating cumulative impacts of projects and eliminating conflicts of interest. See “Five Ways to Fix Environmental Reviews: Young Scientists to Trudeau” in DeSmog Blog (Nov. 15 2016) .