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28th November 2015
...contined from Part Two

“I’m just amazed they could allow anything like this,” he says of the facility, which was proposed by the Vancouver Airport Fuel Facilities Corporation and granted environmental approval by the province after Ottawa let B.C. handle the file. Mr. Langer now heads a citizens’ group that launched a failed court bid to quash the provincial certificate. “It involves federal fisheries, federal migratory birds … a federal harbour, a federal airport – but where was the federal government? They just disappeared and let the province look after it.”

Mr. Langer rejects the suggestion that a jet-fuel spill would evaporate quickly and thus not pose a serious environmental threat. “Years later it could be seeping out of the mud flats,” he says. “I was shocked when I went to Lemon Creek [in the B.C. Interior, where a truck spilled jet fuel in 2013]. I was there 68 days after the spill … and 100 feet away from the stream, I could smell the jet fuel. It destroyed everything in that stream, from blue herons to otters to all the fish.”

Jeffrey Jones, who handled environmental prosecutions for the Department of Justice for 25 years, says that the weakening of oversight by Ottawa has occurred simultaneously on two fronts: Not only are the laws less forceful, but there has been a retreat from enforcement in general, he says, in part because of cuts to field staff.

In the Lemon Creek accident, a truck carrying aviation fuel for helicopters fighting forest fires took a wrong turn (the company blamed the province for failure to provide adequate signage) and tumbled into the creek. Mr. Jones, now in private practice in the small B.C. coastal community of Sointula, said he has handled over 2,000 environmental prosecutions for the Crown – and in his view, Lemon Creek would have been a “slam-dunk prosecution” under the old Fisheries Act.

The changes, he says, upended a long tradition of oversight: “We got 20, 30 years of good, solid enforcement regimes that regulated [corporate extraction] and every now and then they charged. And it worked really, really well. You throw that out and it is really worrisome. What have you got? You’ve got Lemon Creek.”

David Schindler, a professor of ecology at the University of Alberta, says the changes have clearly created “an uninhibited pathway” for industrial development. “All that they have done seems to have set the stage for expediting the approval of more oil-sands projects and pipelines. It’s just total madness.”

In 2011, the Canadian Association of Petroleum Producers and other energy-industry groups wrote to the federal government, asking for a modernization of environmental laws that stood to affect “$120-billion of shovel-ready investments.” That’s what they got, says Calvin Sandborn, legal director of the University of Victoria Environmental Law Centre – and in some cases, “the wording for this new, narrowed legislation was taken directly from oil- and gas-industry requests.”

Among the most egregious changes, he says, were restrictions that made it difficult to participate in environmental reviews or to cross-examine witnesses at NEB hearings. In the ongoing NEB hearings into the proposed Kinder Morgan Pipeline Expansion Project (from Alberta to B.C.’s Lower Mainland) new federal restrictions resulted in more than 1,200 individuals or groups being denied a chance to speak at public hearings. The reason: They weren’t directly affected by the proposed pipelines.

Industry insists: It didn’t dictate the changes

Alex Ferguson, vice-president of policy for the Canadian Association of Petroleum Producers (CAPP), rejects the idea that the legislation was drafted by and for industry. “I know there are lots of rumours flying around, that industry demanded this,” he says. “[Looking at the policy that resulted] I thought, boy, it wasn’t a very smart thing to demand.”

Mr. Ferguson says the changes came abruptly and caused a lot of confusion both in industry and government. “I felt bad for the poor bureaucrats. They were trying to sort out ‘What does this mean? How do we make this work?’” he says.

Although Mr. Ferguson says industry didn’t dictate the changes, everyone has been learning to work with them, and he hopes the new government won’t rush to make revisions without first making a careful assessment. His suggestion: “First find if there has there been anything negative that’s happened as a result of those change … Our view would be ‘Have a look at it. What’s wrong? What’s missing? What can be enhanced?’ And then move from there, as opposed to turning the clock back.”

Pierre Gratton, president and CEO of the Mining Association of Canada, also rejects the idea that legislative changes were made to please his industry. “That’s actually nonsense,” he says. “These reforms, we’ve come to the conclusion, had … probably a lot more to do with pipelines than mining.” On the ground, he says, there has been “no reduction in federal oversight of mining projects.”

But he understands at least some of the concerns that have ensued. “I think … a legitimate question to ask is ‘Was too much taken out?’ It’s one thing to argue you don’t need an [environmental assessment] for a park bench, but there are other activities, you know, a run-of-river hydro project … [or] pipelines. So I think you could make a legitimate argument that there’s too much that’s not captured and [that] the Fisheries Act oversight has been diminished.”

A Liberal promise to ‘undo the damage’

In the environmental platform the Liberals released during the federal election campaign, there’s a photo of Justin Trudeau as a child, in the bow of a canoe, with his father in the stern, steering. Hardly old enough to see over the gunwales, the boy has a solid grip on the paddle and is bracing for the tumble of white water ahead.

“I was barely walking before my father put a paddle in my hands, and started teaching my brothers and me how to read a river,” he wrote in the introduction to the platform, promising to “undo the damage done by Harper” and restore public trust in the government’s ability to protect the environment. His government has already started assembling teams to examine the regulatory changes made in 2012.

In its platform, the party promised to “replace Mr. Harper’s changes to the environmental-assessment process,” to ensure decisions are based on science; to “modernize” the NEB; to review endangered-species protection; and to open up public participation in assessment processes.

In a letter last month to the B.C. Wildlife Federation, Liberal Party of Canada President Anna Gainey reinforced that message. Said a party statement attached to that letter: “A Liberal government will launch an immediate, public review of Canada’s environmental assessment processes. Based on this review, a Liberal government will replace Mr. Harper’s changes to the environmental-assessment process. Morevoer, a Liberal government will conduct a wholesale review of changes to the Fisheries Act and elimination of the Navigable Waters Protection [Act] that will restore lost protections.”

Other promises include implementing the recommendations of the 2012 Cohen Commission, which examined the collapse of sockeye-salmon stocks in the Fraser River; reversing a $40-million cut from the ocean-monitoring programs; and “end[ing] the practice of having federal ministers interfere in projects while they are being assessed.” This month, the Liberals followed through on another promise, announcing a ban on crude-oil tankers on B.C.’s North Coast.

In mandate letters to Environment and Climate Change Minister Catherine McKenna and Fisheries Minister Hunter Tootoo, Mr. Trudeau reiterated the promises made during the campaign. His government is now in power and entering fast water. As the Prime Minister knows from his days of canoeing rapids, it is time now for decisions.

Mark Hume is a national correspondent for The Globe and Mail, based in Vancouver, where he writes a weekly column focusing on the environment, and is the author of three natural-history books about rivers.
Illustrations by Trish McAlaster/The Globe and Mail