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Environmental law review recommends changes to Fisheries Act, National Energy Board

In June 2016, Prime Minister Trudeau announced an important review and update of four of Canada’s major environmental laws: The Fisheries Act, the Navigation Protection Act, the Canada Environmental Protection Act’s Environmental Assessment provision, and the National Energy Board.

By this June, 2017, the government had announced all the reviews' recommendations.

Some of the Acts haven't been revised in 20 years. Others, like the Navigation Protection Act, lost most of their authority in 2012, when Stephen Harper’s government drastically reduced their jurisdiction. In Harper’s version, the NWA protects only about 100 out of millions of Canadian waterways.

If you've never heard of the environmental law review, maybe that's because the government undertook several massive reviews simultaneously. Only the environmental-and-law groups seem to have made any attempt to publicize it. I can’t find any mention on general environmental groups' site, such as the Sierra Club website, or on Greenpeace’s either.

Says the West Coast Environmental Law website, "the government [has] announced a sweeping review of federal environmental laws...  This is a once-in-a-generation opportunity to help shape Canada’s environmental laws and to contribute to decisions that affect land, air, water and the climate."

Public comments were welcomed from November 2016 until as late as May 2017, and reports came out promptly. Which is to say that all of these committees and task forces have been remarkably quick to launch, implement their inquiries, mediate, and make recommendations -- sometimes stunningly earth-friendly recommendations.   For starters, every report recommends including and involving Indigenous people and Indigenous perspectives on land use.   

Another example: The House of Commons Standing Committee on Environment and Sustainable Development, following its mandatory 10-year review of the Canadian Environmental Protection Act, issued 84 strong recommendations, including that the Act’s preamble be "amended:

The Canadian Environmental Law Association hailed this "breakthrough moment for Canada’s growing environmental rights movement."  Ecojustice lawyer Kaitlyn Mitchell said, "Environmental rights are human rights, and we applaud the committee for taking a clear, principled stance on the issue. This is a concept that transcends political lines and is fundamental to the advancement of a more just and equitable society."

CELA (Ecojustice) noted that "Ecojustice and the David Suzuki Foundation are partners in the Blue Dot Movement, a national campaign to advance the legal recognition of every Canadian’s right to a healthy environment. 

"Since 2014.... 153 municipalities across Canada -- representing more than 40 per cent of Canada’s population -- have passed declarations in support of the right to a healthy environment."

Similarly, the Department of Fisheries and Oceans announced a return to policies of protecting fish habitat, reversing the Harper government's 2012 legislation. CPAWS (Canadian Parks and Wilderness Society) said, "The Government of Canada’s commitment to renewing the Fisheries Act is an unprecedented opportunity to put in place a legal and policy framework that will protect, restore and sustain Canada's fisheries -- and the rivers, lakes and oceans that support them -- for generations to come."

There were two parts to reviewing the Canadian Environmental Protection Act. Environmental defence celebrated proposed changes to the CEPA’s list of restricted toxins and pollutants

"The committee also proposes to improve protections from chemicals of high concern... by requiring industry to prove safety before use," said the Environmental defence news release. This could be the edge of Europe’s "Precautionary Principle,"  which requires manufacturers to prove ingredients are harmless before releasing them into the public.

Also, the Expert Panel on [CEPA] Environmental Assessments, struck in order to restore public trust in the assessment process, reported back to the Minister in April. They recommended changing the terminology to "Impact Assessment" and widening the inquiry to include a more holistic approach about how change affects all living beings nearby, human as well as wildlife.

"Canadians demand big changes to environmental assessment law," WCEL celebrated. "The Panel’s report lays out a number of clear recommendations to guide assessments for proposed projects such as mines, pipelines and dams."

Over at the National Energy Board, the Expert Panel recommended splitting the NEB into two separate organizations -- the Canadian Energy Transmission Commission (CETC), and the Canadian Energy Information Agency (CEIA). The point of this would presumably be to restore public trust lost when the previous Prime Minister packed the NEB with his own appointees.  

Furthermore, according to one law firm's analysis, recommendations require that "At a preliminary stage, all major projects would be subject to a year-long deliberation by the Governor in Council (GIC), to determine whether a project aligns with the 'national interest.' On approval, the project would move to a detailed review and environmental assessment, followed by a licensing decision..."

On the other hand, Council of Canadians is furious about what Trudeau's government did not do with the Navigation Protection Act. Stephen Harper's government eliminated the Navigable Waters Protection Act and stripped federal environmental protection from practically all Canada’s lakes, rivers and streams.

Unfortunately, says the Council of Canadians, Transport Canada's report does not restore that protection. "Only 1 per cent of the 31,000 lakes and 2.25 million rivers in Canada will be protected under the Navigation Protection Act," says Emma Lui, water campaigner for the Council of Canadians. "The federal government is abandoning its responsibility and its promise to protect people's right to navigation and safeguard freshwater in Canada."

All of the federal departments involved will now look over the recommendations they have received, and respond by proposing new legislation or regulations. Although most of the recommendations seem earth-friendly, there is no guarantee they will ever be adopted, much less adopted as proposed.

Look for new legislation to come forward in the fall. And if you're interested, you will really have to search. If the past is any indicator, the only public information available is likely to be from enviromental law websites like WCEL, Ecojustice, Environmental Defence, or maybe Council of Canadians.

Media silence on this seems odd. With climate change threatening us all, debates over environmental legislative reform deserve to be headline news.   

Image: Christina Turner

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