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Tories Seen to Be Gutting Ecological Safeguards

Environmental assessment rules weakened, advisory group blindsided, say critics.

By Geoff Dembicki 26 May 2010 |

Geoff Dembicki reports for The Tyee.

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Shell Canada, other oil giants, could benefit from changes

Months after proposed changes to Canada's ecological safeguards infuriated green groups across the country, critics are still looking for answers.

They wonder why Stephen Harper's Conservative government introduced big revisions to the federal Environmental Assessment (EA) Act right before a seven-year review. And why an independent advisory committee staffed with EA experts was apparently disbanded in 2008 without any notice.

The critics --– which include lawyers, green NGOs and federal Liberals -- can only speculate who stood to gain from pending amendments that turn one of Canada's most important green pillars "into hash," as one academic lamented.

Federal lobbying records might provide some indication. In the months and years preceding the spring legislation, industrial proponents supporting such projects as a bitumen pipeline to Kitimat, B.C., and major Alberta oil sands expansions may have lobbied for assessment act changes. It's difficult to say what influence some of the best connected lobbyists in the country had on federal laws.

But at least one opposition party member suspects a hidden mandate is guiding Canadian policy.

"It's about money," Liberal party of Canada environment and energy critic David McGuinty told the Tyee. "The government is very carefully hiding its real agenda of removing government from the marketplace. This is the mantra."

'Breathtakingly undemocratic'

In January of this year, Canada's green movement won a significant Supreme Court of Canada victory. The Court ruled that federal officials avoided a full environmental review of the giant Red Chris gold and copper mine in northern British Columbia. After a provincial assessment, the feds had only examined small project sections -- including a proposed toxic tailings pond -- while failing to consider the larger impact of excavating 30,000 tonnes of earth a day for decades.

The mine development continued anyway, but environmental groups claimed the ruling empowered average citizens and strengthened federal obligations. Just over two months later, many accused the Harper government of disregarding Canada's top court.

New legislation -- known as Bill C-9 -- put forward major revisions to the federal assessment act. Proposed rules would grant the environment minister power to reduce the scope of reviews and put many infrastructure projects on an exemption list.

They'd also hasten efforts to have energy and pipeline proposals reviewed by arguably more sympathetic regulators. Even worse, critics charged, was that the amendments were tucked into a budget implementation bill, meaning opposition parties couldn't vote against them without triggering an unwanted election.

This was puzzling, because a comprehensive seven-year review of the act was due to take place no later than June.

"We find it breathtakingly undemocratic," West Coast Environmental Law staff counsel Josh Paterson said in an interview. "It seems to me like if you want to avoid any rigorous public scrutiny -- and parliamentary scrutiny -- of these amendments this is how you would do it."

Advisory group loses mandate

The Assessment Agency's own Regulatory Advisory Committee was blindsided by the revisions, according to Arlene Kwasniak, who sat on it for years. By that point though, the University of Calgary law professor and green advocate wasn't even sure the committee still existed.

The multi-stakeholder group formed in 1992 to advise the minister of environment on what was then a new assessment act. Industry reps, green voices, nuclear proponents, provincial officials and others drafted many policies which were later written into law, Kwasniak said. Members met at least twice a year. Then in late 2008, the group's dealings came to a mysterious halt.

"We were supposed to meet in December. That meeting was postponed. Then we were supposed to meet in January but that meeting was postponed. And then there was just never a meeting. So I don't even know if it officially exists anymore," Kwasniak told The Tyee.

Not long after the first rescheduling, surprising new changes to the federal assessment process began to appear. The 2009 budget came appended with Navigable Waters Protection Act revisions. The changes exempted certain projects and waterways, reducing the need for federal reviews in some cases.

And in March 2009, new rules excluded about 2,000 stimulus projects under the Building Canada Plan. "Although there haven't been recent meetings, the Agency has consulted bilaterally with committee members," wrote agency spokesperson Annie Roy in an email.

Kwasniak was unaware of any policy consultation.

Neither were several other committee members. One even called the agency's remarks "perilously close to mischaracterization."

Kwasniak is convinced the Harper government has little interest in the opinions of stakeholders and the public. "If you don't have those views you can just gallop on whichever way you want to go," she said.

'Fundamentals' still the same: Minister

This May, as oil gushed into the Gulf of Mexico from BP's exploded offshore rig, 16 green groups wrote a scathing letter to the federal Standing Committee on Finance. They urged MPs to undo "regressive [assessment act] changes that threaten Canada's environment."

Far from weakening oversight, the Conservative government argues, the amendments actually strengthen it. "Assessments will start sooner, delays and duplication will be reduced," environment minister Jim Prentice recently wrote. "The fundamentals of environmental assessment are not changing and the requirements of the act will continue to be met."

Even the Liberal Party's McGuinty acknowledges the process needs serious revamping. Inefficient coordination between provinces and the feds can add huge wait-times to projects. And public and stakeholder involvement could be enhanced, he said.

Many provincial leaders -- especially those in B.C. -- have urged the federal government to improve EA legislation. But those kinds of issues will likely be addressed in a comprehensive review of the act, due to start this June.

Critics wonder why the federal government didn't just wait until then. "The conduct of the Parliamentary review, and subsequent action to respond to its recommendations, including implementing legislative changes, could take a few years," explained agency spokesperson Roy. "In the meantime, delays and duplication resulting from process issues do nothing for the environment and have negative economic impacts."

Industry lobbies to change EA

Canada's large industrial proponents have often complained of the same problems. Federal records suggest many have been lobbying the government for changes. Shell Canada is a major Alberta oil sands producer and until recently, planned big expansions there. It employs a first-rate lobbying firm called Global Public Affairs to make its needs heard on Parliament Hill. Well-connected lobbyists such as Dan Seekings, Tim Kennedy and Kristin Anderson were recently named among the 100 most influential in Canada. Since 2008, lobbyists have met with top government officials -- including Harper policy advisors -- on Shell's behalf. One major issue area is, "Canadian Environmental Assessment Act - related to improving efficiency and project approvals," according to lobby records.

"It would be premature to express any opinions about the draft legislation," Shell Canada spokesperson Ed Greenberg wrote in an email, when contacted by The Tyee.

The Canadian Energy Pipeline Association also employs Global Public Affairs. One of its members, Enbridge, is currently planning a controversial bitumen pipeline that would put supertankers in B.C.'s coastal waters. Lobbyists have recently sought "to enhance and streamline the assessment of pipeline projects." The association did not respond to requests for comment.

Natural gas giant EnCana -- through its spinoff, Cenovus -- plans to become a major oil sands producers over coming years. Federal records show it's lobbied "in relation to the policy for cumulative effects assessment and management."

A spokesperson was not sure how proposed revisions would affect EnCana operations.

Other groups that have listed EA policy in lobbying records include pipeline giant Kinder Morgan, oil sands heavyweights Imperial Oil and ConocoPhillips and the Canadian Association of Petroleum Producers.

Changes favour corporations: report

Lobbyist records only give a small picture of the policies pursued by industrial proponents. Just because a group or company lobbied for EA changes doesn't necessarily mean it supports the recent Harper government initiative. Yet critics argue the revisions could benefit corporate interests in some cases.

For example, new rules would speed up earlier attempts to have energy and pipeline reviews conducted by the National Energy Board or Canada Nuclear Safety Commission, instead of the Assessment Agency.

Observers following a 2006 test case for the Emera Brunswick Pipeline Project found public opposition blunted by inflexible timelines, complicated requirements and intimidating cross-examinations.

"The NEB Regulatory hearing process favours well-financed corporate applicants and intervenors," concluded a report.

If these sorts of reviews become the norm, "the opportunity for members of the public to have a voice in the environmental planning around major oil and gas projects in Canada will be compromised," it read.

Industrial developments could potentially benefit from changes to the scope of reviews, critics also suggest. They fear the environment minister will only assess small impacts of an oil sands project, for instance, rather than its overall impact.

"One would assume that at least some proponents would be happier about that," lawyer Paterson said.

As the seven-year review begins next month, expect a full public examination of one of Canada's most significant green pillars.

For Kwasniak and many others, there's a sense of urgency. "These changes will not only weaken [the act]," she said. "They'll make hash out of it."  [Tyee]

Read more: Politics, Environment

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