Timelines, jurisdictions, and future court challenges

The natural resources minister, Joe Oliver, unveiled the planned changes to environmental assessments today, and some of effects are going to be pretty significant. As part of their “streamlining” process, the government plans to reduce the number of departments and agencies that conduct assessments from 40 to just three, and shift more of the weight onto the provinces (despite the fact that they continue to insist that the ‘austerity’ budget wouldn’t download costs onto the provinces, though their measures continue to do so).

Now, before you get too excited, I think we need to sit down, take a deep breath, and consider a few things here. I know everyone is talking about weakening the process, and how this is going to mean carte blanche for Big Oil and so on, but that may not actually be the case. Nobody is saying that any of these assessments are going to be just rubberstamps. There is still a process in place, which we can’t forget. But this having been established, there are some things that the government needs to really consider before they move ahead with these changes.

First of all, there isn’t all that much duplication for them to eliminate. Environmental assessments are born of complex jurisdictional issues, and as currently structured, each level of government has their own process, and each department at each level has their own responsibilities, which each have their own triggers. There are also a lot of different types of environmental assessments, and a good many of them are just a couple hours of paperwork to ensure that best practices are being followed. They’re really not all that scary, and yet the government likes to use these examples to show how “out of control” the system is. An example of this is the case they cite where an assessment was needed to put a park bench in a park! Oh, woe! But that was a paperwork exercise. If done properly, it should have taken a couple of hours. It’s not scary. Likewise, when they cite the lengthy processes for some projects, that stretched into the six year timeframes, it’s often the proponents – the developers – who held up the process, either because their own homework wasn’t done properly, or the consultants they hired didn’t do the job properly, or the likes. To reshape the federal process because the people who want to build whatever project is at stake can’t get their own work done is punishing the wrong people. But funny that Oliver never talks about these examples.

There are also going to be a lot of difficulties when it comes to unilaterally declaring that the provinces should be handling reviews because of the number of trans-boundary issues that are at stake when it comes to these projects – most especially when the downstream issues come into play. It’s hard for one province to talk about the impacts when the river that runs through the project flows into the next province and impacts its ecosystem and food chain just as much. That’s partially why the federal government has as much jurisdiction as it does right now with regards to these assessments.  As well, there are a number of constitutional jurisdictional issues that Oliver papers over, such as with fish habitats. That is not a provincial jurisdiction, so says the constitution. Deal with it. It appears that the plan to deal with this issue is to have the federal minister declare what projects are major and minor, and subject to which particular timeline and which jurisdictional process, but that looks like something that will quickly be challenged in the courts when he steps on too many toes. That’s why we have a federal constitution that lays out the separation of powers.

The notion of timelines themselves is fairly problematic. While it may be nice to declare that an assessment will be completed with 12, 18 or 24 months (depending on the type of assessment), it’s not always feasible – especially when the proponents can’t get their own work done in time, as was mentioned previously. Does Oliver plan to level some kind of penalty to proponents who hold up the process, or does he simply plan to let them run their own clocks out? That’s an important consideration. While he plans to limit the intervenors in any consultation process to those who are directly affected by the project, it seems to me that this again ignores downstream processes, and the broader ecosystem when it comes to First Nations who still subsist on hunting and trapping in many of these areas. That broadens the scope who is “directly affected” by any given project. That said, projects that currently see some four thousand intervenors at panel hearings should probably impose some limits, especially when a lot of them will be overlapping, but I’m not sure that Oliver will have much of a case when it comes to “directly affected.”

The other thing that Oliver seems to be overlooking is the degree to which these moves open the government up to legal challenges over the projects. If the assessments aren’t done properly because they’ve been rushed, or the process has been abused, then they’re looking at a big pile of lawsuits by those who will be affected downstream or in ways that would normally have been caught by the assessment process and had some measure of consultation or remediation. And lawsuits and court challenges mean bigger delays than they would be subjected to if they didn’t impose these timelines or “streamlining” to leave out departments with expertise in fields that are now seen as less important. In other words, they may find themselves facing even more delays despite the attempt to get around them.

The final point I’d like to make is the government’s shameful habit of placing environmental legislation like this into the budget implementation bill under the feeble excuse that this is about our economic prosperity. No, it’s not – these kinds of changes deserve debate on their own merits, not as part of a broader budget discussion on the budget, and to act otherwise is a subversion of the democratic process. That is something that more people should be paying attention to.