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Status update: Canada’s environmental law reviews

Parliament Hill
January 16, 2018

It has been over two years since Prime Minister Justin Trudeau issued mandates to a handful of cabinet ministers to review, modernize and strengthen four important environmental laws. Following related campaign promises, the idea was that these changes to the Fisheries Act, Canadian Environmental Assessment Act, 2012, Navigation Protection Act and National Energy Board Act would undo serious rollbacks made to those laws by the previous government in 2012 and introduce new, modern safeguards to protect nature and communities.

Two years later, what has happened with those commitments? West Coast Environmental Law Association has been deeply involved in the environmental law reviews since the beginning, and is here to share the status of the reviews.

Progress to date

In 2016, the government initiated a separate review for each environmental law. The Navigation Protection Act and Fisheries Act were sent to Parliamentary Committees for review, while expert panels were appointed to review federal environmental assessment processes and the National Energy Board. A detailed analysis of the outcomes of those reviews is too great an undertaking for this blog, but we have written about them separately.

In a nutshell, the results were mixed. The expert panel report on federal EA processes and Standing Committee report on modernizing the Fisheries Act broadly reflected West Coast’s recommendations, while the Committee recommendations for the Navigation Protection Act fall far short of the commitment to restore lost protections to Canada’s waterways, and the expert panel report on modernizing the National Energy Board contains some concerning elements.

But as these reports were simply recommendations, the real question is: What will the government ultimately do with those recommendations in enacting changes to its environmental laws?

Last June, we got a hint of where the government was heading in the Environmental and Regulatory Reviews Discussion Paper it released, which sets out some high-level proposals for each law. In a report card we issued following its release, we gave the Discussion Paper a C- overall, with environmental assessment receiving a D, National Energy Board modernization scoring somewhat higher with a B-, Fisheries Act reforms receiving a B, and the Navigation Protection Act section receiving a failing grade.

In summary, while the Discussion Paper proposes to make some important improvements to protection of fish and waters, and to how we make decisions that affect the environment, it fails to address some key concerns. The Discussion Paper approach would likely narrowly focus on the impacts of major projects – while leaving the thousands of smaller activities that cumulatively impact our environment without oversight – and would retain opaque, politicized decision-making that allows government to put the short-term interests of a few above the long-term, collective interests of Canadians.

What happens next

So where does that leave us now? Waiting for legislation.

When the House of Commons resumes sitting on January 29th, the government is expected to table legislation shortly thereafter to implement its proposed amendments to the laws. This legislation could take a number of different forms: it could be one mini “omnibus environmental” bill, four separate bills (one for each Act), or a combination of bills, such as one for the Navigation Protection Act and Fisheries Act, and another to amend CEAA 2012 and the National Energy Board Act. We expect to see the legislation tabled within the first few weeks of February.

Once the bill(s) are tabled, they will need to pass first and second reading by the House. After that, they will be sent to a committee for review. As with the configuration of the bills(s) themselves, the government has a number of options regarding which committee or committees review the legislation.

Customarily, the Standing Committee on Environment and Sustainable Development would review an environmental assessment bill, the Standing Committee on Natural Resources would study a bill making changes to the National Energy Board, the Standing Committee on Fisheries and Oceans would consider a bill on Fisheries Act reform, and the Standing Committee on Transport, Infrastructure and Communities would study a bill amending the Navigation Protection Act.

However, the government has the ultimate say over which bills are sent to which committees, and the different possible bill configurations could mean sending the bills to different committees than one would expect. For example, a bill amending both CEAA 2012 and the National Energy Board could go to the Natural Resources Committee.

Another option is to establish a legislative committee and task it with reviewing the bill(s). An advantage of a legislative committee is that for bills amending more than one law, the committee could be comprised of members of the respective standing committees, thereby bringing together the relevant subject matter expertise.

If legislation is tabled in early February, it is likely that the bill(s) will go through committee stage in spring 2018. It is at committee stage that there is the greatest opportunity to make amendments to legislation. What that means for West Coast is that we anticipate being quite busy this spring, making submissions and working with the Members of Parliament in the relevant committees to help ensure that legislation reflects our recommendations for a stronger environmental safety net for Canada.

Following committee studies, the legislation would need to go through third reading and be passed by the House of Commons. Because the legislation is being tabled by the majority government, it is likely to be passed before the House rises for the summer.

The next stage is for the bill(s) to go through the same process in the Senate: first and second reading, then study by committee, and finally third reading. The Senate stage is expected to commence this fall, when there will once again be an opportunity to make submissions to and work with Senators to ensure that the bills are as strong as possible. Once the Senate approves the bills, they will need to receive Royal Ascent, and then will become law.

If this process seems long, that’s because it is long. There is much work that remains to be done to ensure the government lives up to its promise to restore lost protections and introduce modern safeguards to protect our environment, make wise decisions and ensure communities have a say while advancing reconciliation with Indigenous peoples. Luckily, West Coast intends to remain engaged each step of the way, and to help you stay involved, too. Stay tuned.

Anna Johnston, Staff Counsel