The federal government’s proposed approach to reforming Canada’s environmental laws

The federal government has released a discussion paper outlining aspects of the approach it proposes to take to implement planned reforms to Canada’s environmental laws. It is inviting comments from the public until August 28, 2017.

We’ve previously written about the progress of these reform efforts , which target a broad spectrum of federal environmental regulation encompassing four regulatory regimes: environmental assessment, protection of fisheries and fish habitat, modernization of the National Energy Board (“NEB”), and navigable waterways. Over the past year, the federal government has initiated an extensive independent review of each of these regimes with a view to collecting the necessary information to shape its reform efforts.

In terms of changes to the environmental assessment system, the discussion paper underscores the government’s proposed focus on several “crosscutting areas of change,” which will include:

  • Addressing Cumulative Effects;
  • Early Engagement and Planning;
  • Transparency and Public Participation;
  • Science, Evidence and Indigenous Knowledge;
  • Impact Assessment (which would include consideration of greenhouse gas emissions);
  • Partnering with Indigenous Peoples; and
  • Cooperation with Jurisdictions.

The government appears to have adopted many of the EA Review Panel’s recommendations, particularly in moving towards “impact assessment” and away from “environmental assessment”; enhancing Aboriginal and public involvement in planning, assessment, and decision making; closer collaboration with provinces; ensuring decision making based on science and instituting greater overall transparency; and addressing cumulative effects.

Many of the changes being considered for the environmental assessment regime are echoed in the government’s proposed approach to reforming the NEB, navigable waters protection, and the Fisheries Act.

The approach to NEB modernization currently being considered will focus on increasing public participation; overhauling the institutional structure and management of the NEB; ensuring greater involvement of indigenous peoples; and enhancing transparency and inter-jurisdictional co-operation.

In order to”restore lost protections to the Navigation Protection Act,” the government is considering changes that would include working with indigenous people; increasing transparency; and restoring protections for the public right of navigation.

Finally, Fisheries Act reforms that are being considered include: partnering with indigenous peoples; reintroducing prohibitions of the harmful alteration, disruption or destruction (HADD) of fish habitat without approval; improving enforcement powers; increasing public transparency; enabling proactive identification of important fish habitats, and working with partners to restore and rebuild; and incorporating resource management and planning principles that include consideration of cumulative effects, the precautionary principle, and ecosystem-based management.

Based on the findings of the expert panels tasked with reviewing these four regimes, most of these possible changes do not come as a surprise. Many of these changes also appear responsive to public criticism. For example, commentators have regularly pointed out that greenhouse gas emissions ought to be, but are not, accounted for in the assessment of proposed projects under the existing environmental assessment regime, as well as by the NEB. The federal environmental regulatory regimes have also long been critiqued for improperly excluding indigenous peoples, including by ignoring traditional knowledge.