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The Harper government became its own worst enemy in the energy world in 2012. That’s when it bent over backward to accommodate the oil and gas lobby— who were complaining that too much red tape was tying up approval of pipelines and other energy infrastructure projects. The red tape was costing the oil industry money and they wanted it removed.
Happy to oblige, Harper's team introduced two omnibus bills— the so-called "budget bills" C-38 and C-45—that incorporated hundreds of pages of legal changes repealing or amending many federal environmental laws.
However, in doing so, Harper gave rise to a new generation of activists who stepped in and called for regulation when their government was unwilling to do the job itself.
While the Trudeau government plans to try to correct some of the problems and redress the broken regulations, one thing is clear: after Stephen Harper, environmental activism is now part of the Canadian landscape.
Groups like Greenpeace, Environmental Defence, Ecojustice and many others remain active, supported by dozens of citizens’ groups which have sprung up to fill the regulatory void.
Anna Johnston, a staff counsel at the West Coast Environmental Law Association (WCEL), says in the last few years more court cases have sprung up around industry proposals. The Globe and Mail reported in 2014 that in British Columbia alone, 38 court cases related to more than $25-billion in resource projects were underway.
“So the 'Let’s get shovels in the ground faster' request that industry had made to government, that’s not happening,” Johnston notes. “The weakening of environmental laws has not gotten those shovels in the ground faster. It’s not working for anybody.
“What’s occurring instead is that people who have been shut out of the regulatory process have become frustrated and so are either taking to the streets or taking to the courts to try to have their voices heard and their concerns considered.”
Peter Robinson, CEO of the David Suzuki Foundation, agrees. He points out that not only did the Harper government gut several regulations designed to protect the environment, but they used the Canadian Revenue Agency to audit environmental non-profits (of which the David Suzuki Foundation was one)—which was both costly and chilling for the targeted groups.
For all that, Robinson says the tactics backfired.
“You had considerably more resistance at the local level, community level. You had widespread criticisms of the process. You had groups speak up. There’s a good lesson about how government approaches challenges. To come out fairly aggressively and in a way that provokes groups, the result may not be what you intended to do.”
Enter the Energy Framework Initiative
Industry lobbying for the regulation changes began as far back as 2009, but picked up pace in 2011. In December of that year, a group calling itself the Energy Framework Initiative wrote to then Environment Minister Peter Kent and then Natural Resources Minister Joe Oliver, asking for regulatory reform.
Calling the basic approach embodied in existing legislation outdated, the group wrote: “At the heart of most existing legislation is a philosophy of prohibiting harm; ‘environmental’ legislation is almost entirely focused on preventing bad things from happening rather than enabling responsible outcomes.”
The four groups that formed the initiative consisted of the Canadian Petroleum Products Institute, the Canadian Association of Petroleum Producers, the Canadian Pipeline Association, and the Canadian Gas Association.
A month later in January 2012, Oliver published a now-infamous open letter in which he wrote about “environmental and other radical groups” wanting to block trade opportunities. “These groups threaten to hijack our regulatory system to achieve their radical ideological agenda,” Oliver wrote.
“They seek to exploit any loophole they can find, stacking public hearings with bodies to ensure that delays kill good projects,” the letter continued. “They use funding from foreign special interest groups to undermine Canada’s national economic interest. They attract jet-setting celebrities with some of the largest carbon footprints in the world to lecture Canadians not to develop our natural resources.”
Oliver wasn’t done yet. He wrote that if all other avenues failed, the groups took “a quintessential American approach: sue everyone and anyone to delay the project even further.”
The minister concluded that reviews for major projects could be accomplished quicker and in a more streamlined fashion.
“We do not want projects that are safe, generate thousands of new jobs and open up new export markets, to die in the approval phase due to unnecessary delays.”
Cutting Canadians out of the process is bad for results
The changes broadsided Canadians. David Miller, president and CEO, of the World Wildlife Fund Canada, said the fact that changes were introduced in omnibus bills meant the public didn’t really know what was going on.
Nor did anyone have a chance to weigh in or scrutinize the changes as they came in the context of a budget, Miller said. “Cutting Canadians out of the democratic process is bad for results."
That would quickly become apparent as soon as people started to realize what the changes meant.
Johnston documents the changes in a report released earlier this year, titled "Canada’s Track Record on Environmental Laws 2011-2015." The changes included replacing the Canadian Environmental Assessment Act with weaker legislation, scrapping over 3,000 environmental reviews in the process; gutting the Fisheries Act by weakening fish habitat protection, removing protection for most non-commercial fish species and broadening the government’s powers to allow harm to fish and fish habitat.
Other key changes included handing environmental oversight of major energy and pipeline projects to the National Energy Board (NEB); and lifting legal protection to over 99 per cent of Canada’s lakes and rivers by changing the Navigable Waters Protection Act to, tellingly, the "Navigation Protection Act"— shifting the focus of the law away from protecting water to protecting transport.
The impact of changes to things such as the Navigable Waters Protection Act weren’t immediately clear at first. But Adam Scott, the climate and energy program manager for Environmental Defence, uses the proposed Energy East pipeline as an example.
The pipeline would cross nearly a thousand waterways from start to finish, but only a tiny fraction of those would have any protection under the new Navigation Protection Act and trigger the federal government to step in and assess impacts.
The changes to the NEB may have been even more pernicious.
Miller calls the NEB an approving agency, and said its job now—rather than assessing and regulating— is to approve permits for infrastructure projects like pipelines. Miller believes the board is no longer set up to deal with environmental consequences. “It just isn’t. The change is very serious and a real worry.”
The other issue was the politicizing of the NEB. The board no longer rules on a project, but makes a recommendation to cabinet and cabinet decides if the project will go ahead. And where previously any member of the public could write to or give testimony to the NEB on a hearing, under the Harper government only members of the public “directly affected” by a project could give input.
“There are a lot of serious democratic issues now around the NEB due to those changes,” Scott says. “You’re not having an independent regulator. It becomes a political decision.”
In her report, Johnston notes that public confidence in the impartiality and independence of reviews is diminishing. She wrote that recent experience with NEB reviews of oil pipeline and tanker projects suggests that the “NEB may not have the independence, expertise or mandate to ensure that the best interests of Canadians – or the environment – are met."
Many changes, but little success for industry
But for all those changes— and others— the federal government and the energy industry haven’t been any more successful at stick-handling projects through the process that was designed to make it easier.
To date, the two biggest projects which received approvals since 2012 are the Site C Dam in British Columbia and Enbridge’s Line 9 pipeline. Both have encountered substantial opposition.
Site C still faces a number of lawsuits, while the Quebec citizen’s group, Citoyens au Courant, is still protesting the NEB’s decision in early October to allow the reversal of oil flow in the aging Line 9 pipeline.
In the meantime, such major energy projects as Northern Gateway, Energy East and Kinder Morgan have also faced considerable opposition from both environmental and citizen groups.
It's not just energy projects that have felt the brunt of citizen opposition. The Friends of Green Cove, a small but vocal group of citizens in Cape Breton, have campaigned hard to keep the massive Mother Canada memorial out of the region’s national park.