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29th November 2015
EDITOR
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Under the Conservatives, a raft of regulatory rollbacks

Canada’s water is regulated by multiple departments and agencies administering several key pieces of legislation. In 2012, the government amended many aspects of that regulatory framework, narrowing the scope of the rules, and revising the processes by which decisions were made. Most of the amendments were buried in sweeping omnibus legislation, which meant that they did not have a chance to be debated, bill by bill, in the House of Commons.

Collectively, the amendments softened regulations protecting water from pollution, allowed the destruction of fish habitat, restricted public participation in environmental reviews, made it easier for pipelines and bridges to cross waterways, gave industry a self-policing role in assessing environmental impact, and reduced protection for species at risk.

Here are some of the most significant changes:

FISHERIES ACT

Taken together, several changes both scaled back the government’s commitment to fishery regulation and reduced its capacity to monitor whether its regulations were being adhered to.

One major set of amendments was to regulations that prohibited the “harmful alteration or disruption, or the destruction of fish habitat” (known as the HADD section of the act). This section had been routinely used by fisheries officers to protect fish habitat from the discharge of pollutants and other harmful effects. Under the old legislation, bridge and pipeline crossings, dredging, gravel mining in rivers, and the crossing of streams by heavy equipment could all lead to HADD prosecutions.

In the new bill, the HADD section was altered to prohibit “serious harm to fish that are part of a commercial, recreational or aboriginal fishery, or to fish that support such a fishery.”

This amounted to a significant reduction of the areas protected. Fish in wilderness waters not regularly visited by people would not be protected – nor, crucially, would their habitat. Furthermore, in the new HADD section, “serious harm” was defined as the “death of fish” or the “permanent” alteration or destruction of their habitat. Temporary destruction - the kind that might result from an oil spill - became legal.

Other changes gave cabinet the authority to exempt individual projects, or complete water bodies, from the Fisheries Act entirely. This made it possible for a specific mine, for example, to legally pollute a river or lake.

As well, the budget of the department of Fisheries and Oceans (DFO) was cut by $80-million in 2012, and its staffing levels reduced.

CANADIAN ENVIRONMENTAL ASSESSMENT ACT (CEAA)

Changes to this act have given cabinet the authority to approve any project, regardless of its environmental impacts, thus politicizing such approvals while severely curtailing the number of projects screened.

An environmental assessment (EA) is the basic tool by which a government examines the impact that a proposed project might have, and determines whether it ought to be approved. Changes to the CEAA gave cabinet a greater and more direct role in decision-making, dramatically tightened the time frame for environmental reviews, reduced opportunities for public participation, and recognized provincial assessments as equivalent to federal reviews.

Under the new rules, if an assessment concludes that a specific project would cause “significant” environmental effects - which in the past would have been grounds for rejecting it - the project is now referred to cabinet to determine whether those effects are justified in the circumstance.

The amendments also stated that “only designated projects” would require environmental assessment; in the past, any project that involved federal lands or required a federal permit would have triggered an assessment. Typically, the environment minister designates projects for review under the revised legislation, also opening up the process to potential politicization.

Just before the legislation was amended, according to an analysis by the environmental law firm Willms & Shier, there were 2,970 projects on the CEAA registry for screening, including pipeline rights of way, oil- and gas-well access roads, gravel mines, and waste-treatment facilities. Once the revisions were passed, 2,900 of those projects – almost 98 per cent – were dropped.

NAVIGATION PROTECTION ACT

Changes here slashed the number of water bodies considered significant enough to be specifically protected by the federal government, and added a significant hurdle to the review of any particular project to be built on such bodies.

Previously known as the Navigable Waters Protection Act, the original purpose of this legislation was to keep waterways open to marine passage. But over the years, it evolved to include an environmental dimension, and so could trigger environmental assessments of projects.

In 2012, the word “waters” was removed from the title of the bill. It was a change of portent: The focus of the legislation now became solely the protection of navigation, and the ability to consider the environmental impact of projects was severely limited.

There are over 8,500 rivers and two million lakes across Canada. While the government was drafting its amendments, it looked at a list of 1,070 bodies of water that were considered significant enough to be specifically listed in the act - as designated waters, they would continue to be covered. By the time the legislation was passed, only 162 of them - 97 lakes, 62 rivers and the three oceans that border Canada - were included.

Now dams, bridges, pipeline crossings and other works can be built on almost any body of water in the country, without prior approval under the act and without triggering an environmental assessment. For example, only one river in the Northwest Territories – the Mackenzie – is designated. In B.C., such rivers as the Stikine and the Liard are not listed.

As well, until the 2012 amendments, projects submitted for approval under the NWPA could trigger a review based on certain environmental concerns. Under the NPA, assessments are triggered only if a project is also on the Canadian Environmental Assessment Act’s truncated project list.

NATIONAL ENERGY BOARD ACT

Also in 2012, responsibility for assessing potential damage to fish and fish habitat from pipelines and power lines was transferred from the DFO to the National Energy Board (NEB).

But while the NEB got new responsibilities to assess environmental impacts, it also lost the authority to refuse what’s known as a certificate of public convenience for pipelines. Under the changes, all final decisions on whether to refuse or grant a certificate – that is, an authorization to construct and operate a pipeline – are made by cabinet.

SPECIES AT RISK ACT

Under the amended version of SARA, the NEB is no longer required to impose conditions to protect critical habitats when it issues pipeline approvals. In the past, an independent body of scientists recommended to government whether a species should be listed. When necessary, a critical habitat was defined, and a species-recovery strategy was drawn up.

What’s more, before the amendments, project permits could not exceed three years. Under the updated regulations, a permit can be issued for any length of time.

Watchdogs decry a ‘worrisome’ lack of oversight

With his white beard and folksy manner, Otto Langer seems like a friendly Edmund Gwenn in Miracle on 34th Street. But before retiring in 2001, the former head of habitat assessment in B.C. and the Yukon for the DFO was known for relentlessly pursuing polluters on behalf of the government.

Standing on the banks of the Fraser River, at a site slated to become a jet-fuel facility with an unloading dock, a pipeline and an 80-million-litre tank farm, Mr. Langer outlines the project’s impact. “[It] will allow barges and Panamax tankers of highly toxic and flammable jet fuel to enter the Fraser River for the first time in history,” says Mr. Langer, as flocks of birds huddle on the water upstream from the Alaksen National Wildlife Area, where marshes are used by 1.4 million birds for wintering or migration.

...continued in Part three