The Canadian government’s 2016 review of environmental protection laws

In 2012, in the middle of the Joint Review Panel process for assessing Enbridge’s Northern Gateway Pipeline Project, the federal government suddenly enacted significant amendments to laws governing pipelines and environmental protection (the “2012 Changes”). The 2012 Changes included a new Canadian Environmental Assessment Act, 2012 (“CEAA 2012”) and significant changes to the Navigation Protection Act (the “NPA”), the Fisheries Act and the National Energy Board Act (the “NEB Act”). These changes advanced industrial economic interests at the expense of First Nations, by reducing environmental protections relating to marine species and their habitats, and by minimizing hurdles for Northern Gateway’s application for a certificate to build its project. Suddenly, the Fisheries Act no longer protected fish habitat; the NEB Act exempted the National Energy Board, when reviewing pipeline applications, from any duty to minimize impacts on species at risk under the Species At Risk Act; and the decision-maker for the project changed from the Joint Review Panel to the government itself, where the “record” of the decision could be held secret as a cabinet confidence.

Now, as part of its environmental platform, the Trudeau government is engaging in a review of the various laws that the Harper government changed in 2012. The government has engaged in a degree of consultations with the public, and with First Nations.

We had the privilege of providing submissions for certain coastal First Nations to various standing committees. Here are some of the key points that government should address as part of its revision process.

1.         Canada should consult with First Nations about revisions on a nation to nation basis. Canada has a long and unfortunate history of enacting laws to strip First Nations peoples of their properties, their sovereignty, and their cultures, from the banning of spiritual ceremonies under the Indian Act from 1884 to 1951, to removing generations of children from their homes and forcing them into the residential school system. The Truth and Reconciliation Commission of Canada recognized, in the opening words of its report, that Canada engaged in “cultural genocide” by persecuting spiritual leaders, forbidding spiritual practices, confiscating and destroying objects of spiritual value, and sending children to residential schools “not to educate them, but primarily to break their link to their culture and identity”. The 2012 Changes are simply the most recent example of Canada making laws at the expense of First Nations.

As part of reconciling the Crown’s sovereignty in Canada with First Nations who have held property and exercised sovereignty over their  lands and waters, under their own traditional systems of laws for thousands of years prior to European contact, Canada should recognize the sovereign interests, rights and titles of First Nations – pursuant to principles that Canada has confirmed under the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”) – and develop environmental assessment laws in conjunction with First Nations, on a nation to nation basis.

2.         Canada should address its suite of environmental laws in a single process. The current statutory revision process is fragmented, with multiple decision-making bodies addressing individual statutes. But these different statutes can, do, and need to operate together.

3.         Enhanced rights for First Nations under the NPA: Recent events have illustrated that First Nations may be disproportionately impacted by marine accidents involving sunken vessels in navigable waters, and laws should be revised to better protect them.

On October 13, 2016, a 100-foot tug, the Nathan E. Stewart, sailing with a much larger oil barge, ran aground and sank in a valuable traditional harvesting area of Heiltsuk. The tug-barge crashed into a reef in Seaforth Channel, the tug tore holes in its hull, and it spilled into marine harvest areas the approximately 200,000 litres of diesel fuel and other types of oil and lubricants onboard.

Heiltsuk will not only bear the brunt of the environmental impacts, e.g., through current and future impacts on commercial and FSC catches, but had to bear significant burdens relating to response efforts. For example, over 200 response workers had to operate out of Bella Bella – a community with no hotel or restaurants, and only one grocery store. Heiltsuk had to provide support to Unified Command and to response staff, through facilities for sleeping, meetings, and organizing personnel; food for hundreds of responders; kitchens and workers to make and distribute food; power for computers and equipment; fuel for operations; boats to take responders onto the water; divers and other personnel to aid in response efforts; and transport and personnel to assist in shoreline assessments. Atop these response costs was the burden of hiring scientific and other professionals to assert and enforce rights, to assess information, to engage in testing, and to assess impacts on ecosystems, marine populations and future harvests. While the “polluter pays” concept has long been entrenched in Canadian environmental law, and provides a theoretical underpinning for the design of federal laws, First Nations like Heiltsuk nonetheless face significant financial risks from ship-source pollution spills. For example, the Marine Liability Act adopts international convention limitations on liability for ship owners and operators that are based on vessel tonnage, and may be drastically inadequate to cover the actual losses that a spill may produce.

Given the disproportionate impacts that First Nations may suffer from ship-source pollution originating from an “obstruction” under the NPA, First Nations should have access to some statutory powers currently reserved to government, such as the right to remove or order the removal of obstructions, to sell vessels to recover costs, and to obtain security from the polluter. First Nations should also have at least their response costs exempted from limitations of liability under the Marine Liability Act.

4. Restored protections and co-management under the Fisheries Act. The 2012 Changes replaced the previous protective scheme under the Fisheries Act, which prohibited the harmful alteration, disruption or destruction of fish habitat (the “HADD” regime), with the current regime of protecting only fish that are part of or support a commercial, recreational, or Aboriginal fishery. Protecting only fishery-related fish, fails to recognize the critical inter-relationship between different fish species and the broader ecosystem. The previous HADD regime should be restored.

Aboriginal rights to marine harvests should also be recognized as including a right to participate in managing marine resources. A Fisheries Act redesigned in conjunction with First Nations should provide for co-management of fisheries by Canada and by First Nations. A new regime should recognize First Nations as co-owners and not merely as users of marine resources. A revised Fisheries Act should also provide for delegated enforcement and monitoring powers to coastal First Nations, to better meet goals of preventing overfishing, and rebuilding fish stocks. As matters stand, DFO’s minimal presence in fact on the central and northern coast of British Columbia means a vacuum with respect to monitoring and enforcement.

5. A shift in the focus of environmental assessments under a new CEAA. Currently, CEAA 2012 as it actually materializes is focused on the mitigation of adverse biophysical impacts from a project. However, if Canada takes a nation to nation approach seriously, then one consequence should be environmental assessment processes better infused with First Nations values. First Nations values, while varying from nation to nation, have common themes: respect for all life; respect for the interconnected nature of life; and the maintaining of balanced and harmonious relationships between peoples and other living things. Such values are the basis for a commitment to take only what is needed, and to preserve lands and waters for future generations. Such values would favour assessments expanding from project-specific impacts to robustly assessing cumulative impacts, including climate change effects, and expand from an emphasis on biophysical effects, to assessing social, cultural and economic effects.

Project-related environmental assessments should occur in a context where they may also assess how particular projects fit within First Nations land and marine use plans; how they fit within use plans developed by other governments in conjunction with First Nations; how they may meet or fail to meet objectives informed by regional and strategic environmental assessments performed in conjunction with First Nations; and how they may contribute to cumulative effects or climate change.

6. A “proponent pays” model under a new CEAA. Revisions to CEAA 2012 and other statutes under review should not only recognize that First Nations are governments with sovereign interests in their natural resources, but also manifest the principle that a proponent wishing to profit from projects should pay for assessments of impacts on First Nations. In other words, CEAA should be based on a robust “proponent pays” model, where First Nations do not bear the costs of participating in an assessment.

Especially where an environmental assessment is to also provide the Crown and First Nations with information they will need to engage in consultations, a new CEAA should require that proponents meet these information needs by creating funds to finance Aboriginal participation and associated expenses relating to assessing project impacts on Aboriginal rights and title. As matters currently stand, “participant” funding programs for First Nations are non-transparent in their decision-making, bureaucratic and completely inadequate in meeting the actual needs of First Nations.

We are hopeful that the Trudeau government will engage in full consultation with First Nations and Aboriginal communities as its revision process continues, and favour meaningful statutory changes.

Lisa C. Fong and Michael Ng