Nova Scotia announces consultation for coastal protection legislation

lighthouse in nova scotia

Lighthouse at Brier Island, Nova Scotia, from Government of Canada website

Just after the Nova Scotia Minister of Energy  announced   funding for geoscience research on June 20 to support the $11.8 million Offshore Growth Project to encourage oil and gas development, the Minister of the Environment made good on an election promise from 2017 with the  launch   of a consultation process to consider coastline protection, allowing  the period from June 26 to August 17  for the public to respond to an online survey.   Discussion will focus on The  Coastal Protection Legislation: Consultation Document , which addresses the complexity of the legislative situation – both federal and provincial legislation – and  addresses three questions: 1. How to define a “Coastal Protection Zone” ?  2. How to restrict certain activities within the Coastal Protection Zone? and 3. What provisions are required for monitoring and compliance?   The document states:   “Fishing and aquaculture will be exempt, but how do we define this exemption? What other economic activities must we keep out of the way of?”

The Ecology Action Centre in Halifax announced the consultation with this neutral press release  ;  CBC News summarized it with “Nova Scotia seeks public input on legislation to protect coastlines” CBC News, and the Halifax Chronicle published an Editorial on July 3,  “Coastal construction rules needed to curtail climate calamities” , calling for the government to allow more time for public input.

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.

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.