June 1st 2017
One of the defining features of former Prime Minister Stephen Harper’s approach to environmental matters was the dramatic streamlining of the federal environmental review and approval processes for energy and other resource projects through his 2012 budget implementation legislation, Bill C-38.
The rewriting of the Canadian Environmental Assessment Act, and the other changes contained in Bill C-38 were principally intended to accelerate the approval and construction of new or expanded pipelines to Canada’s east and west coasts, to export oil sands bitumen from Alberta.
In practice, it quickly became apparent that the Bill C-38 reforms had stripped the federal environmental review process of any legitimacy. The result was an intensification, rather than resolution, of the political, economic, social and environmental conflicts around projects like the Northern Gateway, Energy East and Kinder-Morgan pipelines.
A central feature of Justin Trudeau’s platform in the 2015 federal election campaign was an acknowledgement of the consequences of the Harper government’s efforts at streamlining the federal environmental review processes. The platform contained a commitment to an immediate review of Canada’s environmental assessment processes and the introduction of “new, fair processes.” That commitment likely contributed to the significant gains made by the federal Liberals in British Columbia in the 2015 election.
Unfortunately, the Liberal government’s commitment to reform has yet to be delivered. The government announced a “interim measures” for the review process in January 2016. These added some additional public consultations and consideration of climate change impacts to the process, but left the C-38 legislative framework intact. The government then proceeded, last November, to approve the Kinder-Morgan Pipeline expansion, essentially relying on that framework.
Six months later, the political consequences of the failure to take the time to undo the damage done by Mr.Harper, and establish a “new” and “fair” federal environmental review process before making decisions on projects like the Kinder-Morgan pipeline, are coming home to roost with a vengeance.
After two weeks of uncertainty the outcome of the British Columbia election now seems clear. The agreement between BC NDP leader John Horgan and Green Party leader Andrew Weaver means that it is almost certain that BC Premier Christy Clark’s Liberals, who now hold one fewer seat than the combined NDP and Green total, will be defeated in the BC Legislature following the delivery of a Speech from the Throne. BC Lieutenant-Governor Judith Guichon is then likely to ask Mr.Horgan to form a government with the support of Mr. Weaver’s Greens.
One of the core elements of the NDP-Green accord is a commitment to “immediately employ every tool available” to halt the expansion of the Alberta to BC Kinder Morgan Pipeline. The stage is now set for a major political and legal confrontation between the governments of BC, Alberta, and Canada, as well as the BC first nations and municipalities who strongly oppose the project. The political consequences for Mr. Trudeau could be dire.
Some have suggested that the government of Canada use the federal declaratory power to overrule provincial objections in BC. The declaratory power hasn’t been used in such a way in more than half a century, and any move along those lines would probably terminate the federal Liberal party’s electoral prospects in the province for the next half century at least. That is to say nothing of the constitutional alarm bells such an action would set off in Quebec over the equally controversial Energy East pipeline project. As it is, the federal government’s continued defense of its approval of the pipeline is placing the seats of many of its recently elected members in BC at risk.
All of this could have been avoided had Mr. Trudeau’s government taken the time to carry through on its platform and Throne Speech commitments to reform the federal environmental review process properly before making decisions on projects like the Kinder-Morgan pipeline.
The original architects of environmental review processes in Canada, who included Mr. Trudeau’s father, recognized the political risks associated with having no structure within which social and political conflicts over the risks, cost and benefits of major projects could be discussed and resolved in a way that earned public trust and legitimacy.
Credible proposals for the meaningful reform of the federal environmental review process, including how to address questions of how the expansion of fossil-fuel export infrastructure can be reconciled with Canada’s international climate change commitments, were presented at the end of March by an expert review panel. There is no easy way out of the political box Mr.Trudeau’s government has constructed for itself around the Kinder-Morgan Pipeline, but the Prime Minister would be well advised to give the review panel’s recommendations serious consideration.