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Who writes Canada’s Environmental Laws?

September 16, 2014

We’ve written before about the apparent and unacceptable influence of the oil and gas industry on Canada’s environmental laws, which may have extended to a suggestion that the Canadian government roll multiple amendments into omnibus budget bills (as it did in 2012). Two documents obtained recently under freedom of information legislation demonstrate that industry, and in particular the Canadian Association of Petroleum Producers (CAPP), is still at work trying to weaken our environmental laws:

  • One reveals that CAPP has been actively asking the federal government to weaken Canada’s Species at Risk Act (SARA); and
  • The other reveals that CAPP played an active role in a recent, unsuccessful effort to reduce environmental assessment requirements for liquid natural gas operations.

We are concerned. Canadians have seen that the current federal government will not shy away from rewriting environmental laws to accommodate industry. And the government has promised a major rewrite to SARA for some time. 

Species at Risk Act

We know from the Lobbyists Registry that the CAPP’s hired lobbyists have been meeting with Canadian Government Ministers, asking them to rewrite SARA to strike a better “balance” between endangered species protection and “existing and future oil and gas exploration projects.” But exactly what that means was revealed recently when Press Progress released a November 2013 letter from CAPP to federal Minister of Environment Leona Aglukkaq detailing the specific amendments to SARA that CAPP has been pressing for:

Guided, in part, with the goal to provide “more stable regulatory regime to enable responsible development of Canada's oil and gas resources and to enhance Canada's global competitiveness,” CAPP is zeroing in on the recovery provisions in the act, according to the newly released letter, dated November 7, 2013. … CAPP … wants to add social and economic considerations to the recovery strategy.

Press Progress provides a detailed review of CAPP’s proposed amendments. In essence, what CAPP wants is to introduce political discretion into what is currently a science-based process. 

To understand why that’s a bad thing, let’s start with the fact that SARA is intended to protect those species that are teetering on the edge of extinction – as a result of policies, practices and laws that have been anything but balanced. It is a last-ditch safety net for those species that development and human activities could literally wipe off the face of the earth.  Despite the urgency for these species, in many cases SARA only actually applies to federal lands, meaning that its ability to protect endangered species – or affect industry – is pretty limited on lands controlled by the provinces. 

It is because of these stark realities that SARA actually (and somewhat unusually for Canadian environmental law) puts science ahead of politics for many key decisions. Recommendations about what species are “at risk” are made by a respected scientific body known as the Committee on the Status of Endangered Wildlife in Canada (COSEWIC). While the government can refuse to accept a recommendation to designate a species as at risk under SARA, they can’t just ignore the recommendation, and have to give reasons if they refuse to follow COSEWIC’s advice.

And once a species is designated as “at risk”, there is an obligation to develop a science-based recovery strategy.  Several recent court cases brought by our colleagues at Ecojustice have emphasized that the government cannot just choose to ignore this obligation

So when CAPP talks about a “balance”, it doesn’t want Canadian environmental laws as a whole to be balanced – it wants to weaken a safety net that is intentionally strict, precisely because the existence of an entire species is at stake. Imagine a hospital striking a “balance” between the needs of a patient on life-support and the need to free up available bed-space.  Oh, is that tasteless? Sorry, but that’s what we’re talking about: an attempt to allow private and political interests to trump the measures needed to prevent an irrecoverable event.

Canada’s current government has not always been a big fan of SARA, so CAPP’s lobbying is worrying.  In 2012, then Minister of Environment Peter Kent openly promised a major rewrite of SARA: “Sooner rather than later we need to address changes to the Species at Risk Act to be more effective.”

Disappointingly, there has been very little coverage in mainstream media of the document uncovered by Press Progress.  CAPP itself was embarrassed enough to respond with a Facebook Post reassuring us that its main concern with SARA is that “little or no progress has been made on actually achieving species recovery”, while still calling for a “balance” that will “enable responsible development of Canada’s oil and natural gas resources.”

Weakening BC environmental assessment

Earlier this week, the Canadian Press broke the story that CAPP had also played a major role behind a change to BC’s laws that would have exempted natural gas processing facilities from environmental assessment:

In January of this year, the Canadian Association of Petroleum Producers made a presentation to high-ranking officials in British Columbia’s Environment Ministry, outlining changes they wanted to environmental review rules for natural gas projects.

Those changes became law on April 14, but they didn’t stay that way for long.

An outcry from First Nations organizations forced an about-face from Environment Minister Mary Polak, who rescinded the revisions two days after they were passed by order-in-council.

When the changes to the environmental assessment rules were announced, we issued a press release warning that these changes risked harming the environment, but it was public opposition from BC’s First Nations that forced the BC government back-track.

In this case it appears that the influence of CAPP caused the BC government to rush ahead with regulatory changes that it had not thought through – disturbing evidence of just how much influence the industry seems to have. 

The real need for balance

CAPP claims that Canada’s environmental laws do not strike the right balance. But having strong environmental laws that apply despite the oil and gas industry’s political clout is essential to real balance. Canadians don’t accept that it is balanced to drive entire species to extinction, or that the oil and gas industry shouldn’t be subject to environmental assessment laws. Having laws in place that hold the oil and gas industry to account represents real balance. 

If we’re going to talk about an imbalance, let’s talk about an imbalance in the level of access and political power that one industry seems to have with both provincial and federal governments. Canadians need to know that our politicians will not cater to the demands of one industry at the expense of the rest of us. 

By Andrew Gage, Staff Lawyer