Never mind mandate letters — what Canada urgently needs now is a national inquiry to repair key pieces of federal environmental legislation such as the Fisheries Act and environmental assessments act, David McRobert, a former senior lawyer with the Environmental Commissioner of Ontario, said in an interview with National Observer.
The “unravelling” of the federal legislation under the Stephen Harper government has been “devastating," McRobert added. “Without legislative change, reversing what the Harper government did on the fisheries act habitat provisions, it’s hard to be optimistic that we’re actually going to see increased protection.”
West Coast Environmental Law detailed the changes to environmental legislation the Harper government made in a document released last year and 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; 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.
McRobert said Wednesday that the current Liberal government has taken positive steps to repair the damage, but believes the mandate letters Prime Minister Justin Trudeau issued to the ministers aren’t enough.
“I just don’t see that the modest mandate commitments are going to address some of the bigger problems that are looming.”
Instead, McRobert asserts that what’s needed is a properly funded inquiry along the lines of the National Inquiry into Murdered and Missing Indigenous Women and Girls.
The Ontario lawyer says the mandate letters don’t even constitute true policy.
“You have federal officials now who are trying to figure out how to implement it. It’s not like an established program that’s audited by the auditor-general. It’s something that’s issued by the Prime Minister’s Office.”
David Schindler, one of Canada’s foremost experts on water ecology, backs McRobert's call for an inquiry. In a brief email from Vancouver, where he’s attending a water conference, Schindler said he agrees with McRoberts' view.
The mandate letters signal a significant change in approach from the former government
Mandate letters signal a significant change in approach from the previous government.
Shortly after taking office in late October, Trudeau issued mandate letters to all the ministers.
The letter to the Minister of Fisheries, Oceans and Canadian Coast Guard tasks the minister with helping “… to review the previous government’s changes to the Fisheries and Navigable Waters Protection Acts, restore lost protections, and incorporate modern safeguards,” for instance.
McRobert co-authored a peer-reviewed paper on the mandate letters and their impact on water-related legislation in the Ontario Bar Association’s Environmental Law page online and he finds them lacking.
The paper, released on Monday, notes that in the case of Fisheries Minister Hunter Tootoo’s letter that while funding is clearly mandated, legislative change is not.
As one example, McRobert points out that no commitment exists to reverse the amendments made to the Fisheries Act under the previous Conservative government.
McRobert concludes that the ministerial mandate letters signal a significant change in approach from the former government. And he notes that more rigorous federal oversight and enforcement may be slowly returning to fisheries management in Canada.
However, he writes: It remains to be seen how much ‘real change’ will occur as a result of this shift, and whether policy, funding and operational changes will be sufficient to ensure adequate protection of fisheries, aquatic ecosystems and fish habitat in the absence of legislative amendments.”
McRobert told National Observer: “I think without legislative change it’s all blowing in the wind. And policy changes — you can change the policy on a whim; regulations are a bit harder to change.”
While policy outlines what a government intends to do and the methods it will use to achieve its goals, legislation consists of enforceable laws.
Strong, new processes needed for environmental assessments
At West Coast Environmental Law, Anna Johnston agrees that some sort of review is needed, although not necessarily a full-blown inquiry.
Johnnston, a staff counsel with the group, says she’s pleased that the letters hit all the “high notes,” such as environmental assessment reform. But like McRobert, she agrees that the mandates are painted in “fairly broad strokes.”
Johnston wants to know “What does modernizing the fisheries act look like and to what degree are we restoring lost protections? Are we going to bring back in full habitat protection?”
The group wants to see strong, new processes in place for environmental assessments, for instance, and not just a tinkering with them.
West Coast Environmental Law is advocating for a public review with an independent body that would have an assisting group of environmental assessment experts. “A similar concept, I suppose,” Johnston says.
“To get a really strong law you need to have a lot of evidence about what works and what doesn’t work. The merits in having a review process like a commission of inquiry or like an independent panel review is that they can commission papers to do some of that deep thinking into those issues.”
Johnston also believes that there are many experts and groups — First Nations, community and fishing — should have input into what a new law should look like.
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