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.

 

Reports re environmental regulation arrive to positive response – next up in May: the Expert Panel on modernizing the National Energy Board

The Government of Canada launched four reviews of government environmental and regulatory processes in June 2016, and recently, the appointed Expert Panels have begun to deliver their reports.  The Report of the Parliamentary Standing Committee on Fisheries and Oceans  was released on February 24   – to a welcoming review by West Coast Environmental Law:  “We are pleased that the Committee has listened – to First Nations, to conservation and community groups, to scientists and concerned citizens across the country – and has recommended reinstating the Fisheries Act’s key prohibition on habitat alteration, disruption and disturbance .

Canada 2017 expert panel report building-common-ground-pdfThe Report of the Expert Panel on Environmental Assessment was released on April 5, and is open for public comment – only until May 5 at www.letstalkea.ca/.  The report, Building Common Ground: A New Vision for Impact Assessment in Canada   incorporates a fundamental idea in its title:   what is now “environmental assessment” should become “impact assessment”.  The Panel recommends that:  an Impact Assessment Commission should be established as an independent, arm’s length government agency, “with a broad leadership mandate to conduct project, region-based and strategic-level assessments.  …. The Commission would also be mandated to generate its own independent science so that assessments are evidence-based and agency-led… and the Panel should commit to  ensuring that the projects are not developed without the early involvement of potentially affected Indigenous peoples and the public. ”

One  of the first responses to the Expert Panel comes from Chris Toellofson at the Pacific Centre for Environmental Law and Litigation (CELL) , who states: “the Panel deserves kudos for both for its ambitious commitment to process, and the innovative and balanced way it has charted the law reform road ahead.” The article continues with a thorough summary and analysis of the report, including: “Our biggest concern with the Report is that it has mainly focused on procedures, values and governance – and has therefore not engaged with some of the substantive legal tests that must be embedded in a federal assessment law to give it real traction. For example, the Report does not address the need for assessments to include “worst case scenario” modeling, and only briefly touches on the need for “alternatives” assessment. These legal requirements, as our experience in the Northern Gateway, Kinder Morgan, and Pacific NorthWest LNG reviews underscore, can be of critical importance, both scientifically and legally.”

WCEL env assessment summit coverWest Coast Environmental Law (WCEL) also responded positively though briefly, calling the report “not perfect but a step in the right direction”, and calling on the government to translate the recommendations into law quickly.  WCEL had convened a Federal Environmental Assessment Reform Summit meeting in Ottawa in May 2016, attended by approximately 30 of Canada’s leading environmental assessment experts, academics, lawyers and practitioners.  The summary of those discussions  was published in August 2016, and offers a context for any review of the recommendations of the government`s Expert Panel report.

Next up in May:  the Report of the Expert Panel regarding the Modernization of the National Energy Board , scheduled to be delivered to the Minister of Natural Resources on or around May 15, 2017.   Anticipating that release,  Ecojustice published a blog,  Modernizing the National Energy Board : Let’s get it right  on April 4, which states : “Today, the NEB is riddled with systemic failures. Some of the most glaring problems include, no flexible timelines for reviews, lack of inclusive public participation, and limitations on public hearings such as no cross-examination and no meaningful consideration of climate change impacts…The NEB, as we’ve come to know it, is dominated by industry insiders and conventional industry perspectives. As a result, it fails to objectively evaluate the need for, and the consequences of, new oil and gas projects. As we transition to a decarbonized energy system in which we are less likely to build new oil and gas infrastructure, the NEB’s role — chiefly concerned with regulating oil and gas and in particular interprovincial and international pipelines — should diminish. In other words, the NEB should get out of the business of environmental assessment….  The NEB’s function should be limited to technical matters traditionally within its regulatory expertise (related to pipeline safety, for instance). It could also turn its attention to technical plans for decommissioning and remediating energy infrastructure, such as pipelines, that are redundant in a decarbonizing economy.”

Brexit is seen as a turning point for UK Climate Change Policy

On February 22, the new  Greener UK coalition released  a manifesto, calling on the UK government to use the Brexit process as an opportunity to restore and enhance environmental protections in the UK. The Manifesto for a Greener UK follows the release on February 14 of a  House of Lords report, Brexit: Environment and climate change.  For a discussion of the basic issues of concern, read “Brexit will be a pivotal moment for the UK’s environment” (December 2016), and read also Greener UK’s Pledge for the Environment, which has been signed by over 145 Members of Parliament  from all parties. Greener UK has also prepared a Briefing Note for Members of Parliament: The repeal bill and a greener UK: Maintaining a greener UK as the UK exits the EU.  Follow developments on the Inside Track blog, published by Green Alliance.

One of the key proposals of the February  Manifesto is that Britain should continue to show climate leadership, to co-operate with the EU on energy and climate change, and to affirm ongoing investment and deployment of clean energy infrastructure. It also calls for a new  Environment Act for England, “building on the upcoming 25 year plan with measurable milestones for environmental restoration and high standards for pollution and resource efficiency”.  Greener UK  has published policy documents supporting  each of the four  priorities of the Manifesto: Food and Farming Fisheries and Marine   ; Climate and Energy  ; and Environment and Wildlife Laws  .

Greener UK  was launched in December 2016, coordinated by Green Alliance . Greener UK consists of 13 major environmental organizations with a  combined membership of 7.9 million, and includes:  Campaign for Better Transport, ClientEarth, Campaign to Protect Rural England, E3G, Friends of the Earth, Green Alliance, Greenpeace, National Trust, RSPB, Wildfowl and Wetlands Trust, The Wildlife Trusts, Woodland Trust and WWF.

Habitat protection, supply management key concerns in review of Canada’s Fisheries Act

Canada’s Fisheries Act, last amended by the Conservative government in 2012, now clearly needs review.  Sustaining Canada’s Major Fish Stocks , a highly critical audit of the management and conservation activities of the Department of Fisheries and Oceans, was released by the Commissioner on Environment and Sustainable Development on October 4.  The response by  New Brunswick EcoAction  states, “Several of the gaps and failings identified in the report can be addressed by a commitment to modernizing the Fisheries Act …. In other developed fishing nations, the fisheries legislation includes provisions for stock rebuilding and targets and timelines to guide this work. Canada’s Fisheries Act has none of this, not even references to the precautionary or ecosystem approaches to fisheries management – which have been enshrined in international law for over 20 years.”  The CBC  summary of the report was blunt:  Another cod-like collapse possible . Keith Sullivan, President of Fish Food and Allied Workers union (Unifor) appeared before the House of Commons Standing Committee on Fisheries and Oceans at the end of September,  explaining the union’s position about the competitive need for quality more than quantity, in order for the cod fishing industry to rebound. At present, 32  union harvesters are part of a research project to determine the best new techniques required to achieve this.

The Standing Committee has also been holding hearings into the Wild Atlantic Salmon . Advocacy group  EcoJustice has launched a court case challenging  the approval of genetically modified salmon  in Prince Edward Island under the Canadian Environmental Protection Act , and a separate case against the Minister of Fisheries regarding B.C.’s salmon . West Coast Environment Law  has recently written about the threat to salmon habitat from the approval of the Pacific North West LNG project in B.C. , with a full brief,  Scaling up the Fisheries Act , which argues for changes to the legislation to identify and protect essential fish habitat .

On October 18, the federal government announced a public consultation as part of the government’s review of the Fisheries Act, part  of the larger  Review of Environmental and Regulatory Processes .  The Let’s Talk Fish Habitat website  provides information and an opportunity to submit ideas.

Call for Protection of the Boreal Forest

A report released in July by the International Boreal Conservation Science Panel emphasizes the importance of the Boreal forest, stating that scientific guidance dictates that no less than 50 percent of a region should be forever protected from development. Industrial activities taking place in the remaining unprotected areas should be carried out with the highest global sustainability standards. A network of large protected areas should be established before industrial development proceeds. Furthermore, both protected areas and industrial activities should only see development after free, prior, and informed consent of the affected Aboriginal communities. See Conserving the World’s Last Great Forest is Possible at: