Environmental assessments mandated by Ottawa may delay natural resource projects
When the federal government rushed new rules on environmental assessments into law last June, it hoped to speed up the approval of natural resource projects such as mines and pipelines. Now that plan may be backfiring, environmental lawyers say, because the details that policymakers in Ottawa didn’t iron out will likely be fought over in courts across Canada.
The new law was “the most significant change in federal environmental assessment” in decades, says Nalin Sahni, an environmental, energy and mining lawyer at Fraser Milner Casgrain LLP in Toronto. But the “Act was put together very hastily,” he says. “In the short-term, it will mean more litigation and more controversy over projects until we reach a new equilibrium.”
That litigation could ensnare major projects across Canada that are going through the environmental assessment process — projects like Shell Canada Ltd.’s Jackpine oil sands mine expansion near Fort McMurray, Alta., Taseko Mines Ltd.’s New Prosperity copper and gold mine near Williams Lake, B.C., and Stillwater Canada Inc.’s platinum and copper mine near Marathon, Ont.
At issue is the new Canadian Environmental Assessment Act 2012, a cornerstone of the government’s Responsible Resource Development Plan — intended to spur development and increase investment in Canada’s energy and natural resource sectors. Parliament passed the new law this past summer as part of its omnibus budget bill, Bill C-38. Even though the bill included sweeping changes to most of Canada’s environmental laws, the Conservatives let parliamentary committees study those changes for only 11 days.
In the rush, rather than taking time to ensure the law came fully stocked with new regulations, the government simply cobbled together bits of old regulations that had been developed for different purposes, says Pierre Gratton, president and chief executive of the Mining Association of Canada. In the old law, for instance, a mine expansion might have required only a federal environmental assessment if it also needed a federal permit of some sort — say, a permit to alter or destroy fish habitat. The government removed those triggers, but kept the list of projects that may require environmental assessments more or less unchanged. The result: Many projects that weren’t previously subject to any federal environmental assessment may now be caught by the regulations, says Mr. Gratton, something he says is “entirely contrary” to the government’s original intent of reducing the regulatory burden on resource development projects.
The new Act also includes rules limiting who and what organizations can appear at federal environmental assessment hearing. Until now, anyone could participate in the hearings — meaning that hearings for controversial projects could potentially drag on for months. Now, panels appointed by Ottawa — sometimes jointly with a province — have the power to determine who, precisely, is an “interested party.” Only interested parties have the right to participate at a hearing.
Those new rules have been used just twice thus far: on Shell’s Jackpine project, and on Taseko’s New Prosperity project. In the Jackpine review, both Shell and the intervenors complained the process for applying for interested party status wasn’t clear, and in the New Prosperity review, Taseko complained that the panel’s decision wasn’t fair.
Changes in public participation rules are “one area of the Act where we’re going to see litigation,” says Stephen Hazell, founder of the environmental law firm Ecovision Law in Ottawa, who helped develop the Canada’s first environmental assessment regulations in the mid-1990s.
Litigation is already underway with respect to another matter the government failed to clarify. The government has a constitutional “duty to consult” aboriginal peoples on any projects that will affect them. The Athabasca Chipewyan First Nation had asked the Jackpine panel to determine whether that duty had been fulfilled for the Jackpine project. The panel refused, ruling this was not one of its duties. Last week, the First Nation group was denied leave to appeal by the Alberta Court of Appeal.
Since the key process in deciding whether a project goes ahead is the environmental assessment, First Nations are afraid that if panels do not make these determinations, projects may be approved even if the duty to consult has not been fulfilled.
The Supreme Court of Canada has previously pointed out that if the panels don’t have this role, then aboriginal peoples will have to take their cases to the courts each time. This can seriously delay projects while the cases make their way through the courts — up to seven years in some past cases. The Athabasca Chipewyan First Nation is now considering whether to appeal to the Supreme Court of Canada.
Ultimately, resource companies may find the rush to streamline rules has overlooked so many details and alienated so many groups that projects may be delayed, not sped up.
“If you don’t give people an opportunity to be heard, then you’re going to be left with people who are angry because they have been excluded,” says Dianne Saxe, an environmental lawyer at Saxe Law Office in Toronto. “Whereas if you give people an opportunity to be heard, they may not be happy with the end result, but they’re more likely to accept it.”