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Weakening BC’s environmental laws risks eroding social licence for Government’s Cleanest LNG goals

June 16, 2014

Poll after poll say that British Columbians favour strong environmental laws – laws that don’t trade our environment off against short-term economic gains. As a result, when governments try to weaken environmental laws in the name of growth, it often backfires, with development proposals losing the social licence that they need, and becoming caught up in public controversy.

We’ve seen that happen at the federal level, with pipeline projects facing legal challenges, First Nations opposition and a lot of uncertainty as a result of weakened Canadian environmental laws.  Will we see a loss of credibility more in provincial environmental decision-making, too? 

We see a worrying theme in several of the most contentious laws passed during the 2014 spring session of the BC Legislature, which seem to have been developed, and pushed through, in a mad rush and without adequate public consultation. The goal of these laws seems, at least in part, to be to remove perceived environmental constraints on certain types of development – notably natural gas exploration, development and export.

That’s not to say that everything passed in this sitting falls within that description. The Water Sustainability Act, for example, was developed with broad public consultation and is generally a good Act. The government’s continued opposition to Enbridge’s proposed pipelines and tankers proposal, at least in its current form, is also encouraging.  But we believe that in many of the legal changes introduced this past session, the BC government has eroded environmental legal safeguards, which in turn reduces public confidence in BC’s environmental safety net and will not help the government’s desire to push through quick LNG development. 

Take, for example:

The Park Amendment Act, 2014 (Bill 4).

Environment Minister Mary Polak acknowledged that the Park Amendment Act, 2014 was rushed through without public consultation, attributing the need for haste to legal advice suggesting that current industrial research occurring in parks might be illegal. At least one of the allegedly illegal permits was issued to authorize research expanded or new routes through provincial parks for the proposed controversial Kinder Morgan Pipelines and Tankers Project.

Despite the Minister’s insistence that the purpose of the Bill is to authorize research generally, the Act creates two types of research. For most research, the Minister can only give the go-ahead if the research is “consistent with the purpose of the protected area.” 

But for research related to removing land from parks, “feasibility studies” for pipelines, transmission lines, highways and similar projects, and research related to public health and safety, the Minister is given wide authority to authorize the work without needing to ensure the research would protect the values of the park.

It’s pretty clear from the amendments that taking land out of parks for the construction of pipelines, transmission lines and highways was pretty front-of-mind for whoever did the drafting.

Not surprisingly, the amendments generated a lot of public opposition, with more than 160,000 people signing a petition on the website SumofUs.org.  West Coast was one of the several environmental organizations that delivered this petition to the Legislature on May 14th.  

Agricultural Land Commission Amendment Act (Bill 24)

Since shortly after I was born, the Agricultural Land Reserve has protected agricultural land in BC, guaranteeing that it cannot simply be sold off for development. But recently-passed amendments reduce legal protection for 90 % of ALR lands in much of the province (specifically, all lands outside the Lower Mainland, Vancouver Island and the Okanagan), which is now called “Zone 2.” It doesn’t do this by increasing flexibility for farmers, or making it easier to get poor agricultural land out of the ALR, as the government sometimes suggests, but by requiring the Agricultural Land Commission – generally through regional panels – to consider factors like the economic and social values of a proposal in addition to the agricultural benefits of the land when deciding whether to remove agricultural protection in Zone 2 ALR lands.

Again, there was no meaningful public consultation before the new changes were unveiled, other than very confused suggestions that the public could comment on possible (and at that time unspecified) proposals to change the rules around the ALR through provincial budget consultations last fall. We now know that various Ministers, including the Ministers behind this Bill, were promised prior to July 2012 that the legal protection for ALR lands would be reduced.  As summarized in the Globe and Mail:

Mr. Bennett, in an e-mail to then-agriculture minister Don McRae, said “there has to be room for other job creating, tax-paying activities [on farmland].” … He cited an example of an RV park on farmland. “We do not need people from outside our region telling us we should cease developing our tourism industry.” …

The Kootenay East MLA also reminded Mr. McRae that he had been promised a review of the ALR boundaries in his riding, and that he had the backing of rural caucus members in his demands.

This time public opposition – including opposition generated through our website – resulted in the new Agriculture Minister, Norm Letnick, promising public consultations, or even to withdraw the Bill.  However, Energy Minister Bennett shortly after vowed that those consultations would not delay or “fundamentally alter” the Bill, and, indeed, while minor amendments were made, they did not change the concerns with the amendments.

Amendments to environmental assessment

A third change, pushed through with no public consultation, was not a Bill, but a cabinet order – amendments to the Reviewable Projects Regulation that eliminated the requirements for environmental assessments of ski resorts and natural gas processing facilities. West Coast was one of the first groups to sound the alarm.

The reaction from First Nations, and especially the Fort Nelson First Nation, which has natural gas development in its territories, was swift.  BC Government representatives were asked to leave a First Nations Shale Gas/LNG Summit in Fort Nelson, which was in progress at the time.  Grand Chief Stewart Phillip, President of the Union of BC Indian Chiefs, in a scathing press release from the First Nations Leadership Council described the move as a “stunningly stupid” one that “effectively declared war” on BC’s First Nations.  The Fort Nelson First Nation, with the support of the First Nations Summit, announced that it would not allow LNG development to occur in its territory if these cabinet orders stood.

BC’s LNG Strategy is on hold. No shale gas development will proceed in FNFN territory until our nation and our treaty is respected and our concerns about our land and our waters are addressed.

The BC government immediately apologized and repealed the Cabinet Orders, promising full consultations with First Nations before any future amendments. 

Lessons learned

The first legislative session of a new government is always instructive.  It is where the government unveils its new ideas and often tries to push through its more contentious initiatives. You can tell a lot about the true agenda of a government from the first legislative session.

And the first impression of this legislative session (which ran from February 11th to May 29th) is of a government that is anxious to move ahead with certain types of development – notably LNG – without balancing environmental and social factors or bringing the public along with it. 

Having been stung by the strength of the First Nations reaction to its Cabinet Orders, the BC government seems to have recognized the need to involve First Nations in their LNG plans, suggesting that there is some recognition that the concerns of Aboriginal groups – including their environmental concerns - need to be addressed in the process.

As yet, however, there does not seem to be recognition that industry needs social licence from the public, and that the province cannot credibly offer the “cleanest LNG” while amending environmental laws to accommodate industry.  

By Andrew Gage, Staff Lawyer