Improving the proposed Federal Environmental Legislation (Bills C-68 & C-69)

Submission regarding Bills C-68 and C-69 to:

• Honourable Ministers Jim Carr, Marc Garneau, Dominic LeBlanc, and Catherine McKenna, and to the Standing Committee of Parliament on Environment and Sustainable Development.  

From:

• Ann Pohl, on behalf of Kent County NB Chapter, Council of Canadians (coc.kent.county.nb@gmail.com — March 15, 2018)

 

During the various stages of consultation on revitalizing and reorienting the Acts contained in Bills C-68 and C-69, members of our chapter of the Council of Canadians participated in three public sessions and submitted several related briefs to government.

Our Neighbourhood

These new Bills were introduced in the federal parliament on February 6 and 8, 2018. More recently the Government of Canada made a call-out for comments on C-69 in particular, saying submissions should be filed with the Standing Committee as soon as possible. However, we also have some concerns about C-68.

We have taken every opportunity to understand what is envisaged by the Bills. In general we are pleased to see a number of proposals for positive initiatives, but there are substantial gaps and some serious concerns. Here then, in point form, are our comments for how to improve these proposed Acts to provide the quality of environmental protection and management that our grandchildren need.

Concerns about the Review Panels

1. The Impact Assessment Agency (IAA) is supposed to be able to independently evaluate proposals based on science, traditional/community knowledge, and other factors. Conflicts of interest may well undermine these good intentions because Bill C-69 authorizes at least one member (possibly more) of the Canadian Energy Regulator (CER), Canadian Nuclear Safety Commission (CNSC), and/or Nova Scotia or Newfoundland and Labrador Offshore Petroleum Boards to sit on the IAA’s review panels. For example, CER has no requirement to consider climate pledges or cumulative impacts: there is not one mentions of climate change in the entire proposed CER Act in Bill C-69. Each of these agencies is supposed to provide the IAA with a roster of panelists to choose from, putting their experts inside the decision-making process to advocate/lobby for the energy industry. This opportunity, this place of honour, is not extended to environmental organizations.
2. The Government’s promotion of this legislation has stressed that there will be one process for all assessments. Yet, this does not seem to be the case.

• • It appears that not all proposals relevant to the offshore petroleum boards will be required to go through the CCEA impact assessment process: the NS and NL/LB offshore boards will also continue their own assessment processes. Although Bill C-69 gives the CER and IAA their own multifunctional mandates and scientific capacities, the offshore boards’ mandates narrowly and clearly favour offshore oil and gas development with no meaningful checks and balances for impact on the environment. Effectively, they have greater authority and autonomy through Bill C-69.
  • Furthermore, the Bill empowers the Minister to substitute provincial processes that he or she deems to be “equivalent” for the proposed new federal IA process.

3. The new IAA will continue the faulty but cost-saving practice of relying on industrial proponents to research, report on and advise government on the relevant environmental concerns in their projects, and how to address these issues. To stretch an analogy we have used many times before, this is akin to asking the fox to report on the structural concerns related to a proposed hen-house, and how to address these matters.

Discretionary Power of “The Minister” in proposed new Acts:

1. Although hearing panels can identify adverse impacts, the Minister (or Cabinet, or “Governor in Council”) retains very broad discretionary powers under Bills C-68 and C-69. Some specific reasons for concern about this in regards to the IAA include:

• • It appears the Minister can invoke a very broad “public interest” determination to short-cut to approval at various stages of an Impact Assessment. the Minister’s uncircumscribed power to determine what is relevant in making her or his decision totally undermines the pledges this government to restore public trust, ensure transparency/accountability, and ensure that decisions are based on valid information. As it stands, political considerations could quash all indicators of what is truly in the public interest, allowing for a decision that is instead in the interest of corporations but would be terrible for the environment and population health.
  • The IA process addresses only major projects designated by regulation or Ministerial order. Smaller projects that may cause dire local or ecosystem impacts are not going to be caught through this mechanism, moreso because it appears the Bill allows the IAA to forego impact assessment for designated projects based on Minister’s discretion. As well, the timelines for public input are quite restrictive.
  • It is not clear at all how regional, strategic assessment, and public input will influence minister’s determination, and the Minister is not even required by the proposed legislation to respond to these inputs.

2. While many of the changes in Bill C-68’s rewrite of the Fisheries Act are excellent, there is a fundamental weakness in the vague wording that the Minister “may or may not” (emphasis added) consider: “(a) the application of a precautionary approach and an ecosystem approach; (b) the sustainability of fisheries; (c) scientific information; (d) traditional knowledge of the Indigenous peoples of Canada that has been provided to the Minister; (e) community knowledge; (f) cooperation with any government of a province, any Indigenous governing body and any body — including a co-management body — established under a land claims agreement; (g) social, economic and cultural factors in the management of fisheries; (h) the preservation or promotion of the independence of licence holders in commercial inshore fisheries; and (i) the intersection of sex and gender with other identity factors.” All of these are crucial factors that must be considered in all cases where they are relevant, and most likely that would be virtually all cases. A simple change to “the Minister will” is imperative.
3. Given the complexity of Bill C-69, it is not clear if this issue of broad discretionary power is also a concern in regards to the new proposed Canadian Navigation Protection Act. If so, that must be addressed as well. However, it is noteworthy that the Minister (in this case, of Transport) will have discretionary powers to act directly in regards to obstructions in navigable waters. Is this a new power, previously absent? Perhaps we are being too presumptive, as the example given by the government is sunken ships, but would this also include the right to take whatever steps are necessary to remove water protectors who are exercising their rights to peacefully assemble in the water?

Walk to Protect the Water, Sikniktuk Mi’kma’ki, Fall 2016

What Is/Is Not Protected in the Proposed Canadian Navigable Waters Act:

1. Notwithstanding the issue of Ministerial discretion (mentioned above), the new Act does not restore protections to the vast majority of Canada’s waterways. The first problem is the Act’s definition of what is “navigable waters.” The usual understanding is that navigable waters are any river or lake deep enough to float a boat, but the new definition has four criteria that serve to seriously constrict the application of the Act to only specific navigable waterways. For example, it seems that a stream flowing through privately held extraction industry land might not fit the definition and therefore would be exempt from this Act’s protections, regardless of its potentiality to cause great bioregion damage if used for some industrial purposes.
2. The proposed new Act sets out three categories of development that may take place on a waterway: minor works (that get approval without public input if they meet the established critieria); major works (dams, etc.), and works which are proposed for a lake or river on the Schedule of Navigable Waters. Only a few waterways are included in the current proposed Schedule of Navigable Waters, and it is incumbent on individual Canadians or over-stretched civil society and environmental organizations to apply to restore protections to the thousands of lakes and rivers navigated in Canada.

2 & 1/2 years ago: restore protections to EVERY lake and river.

Fisheries Act:

1. Bill 68 sets out many positive aspects to this new proposed Act. The best part is that considerable meaningful protection is being extended to fish habitat — not just the habitat of food fishery fish, but all fish. Also included are a number of pathways for implementing these protections.
2. Nonetheless, broad discretionary powers are available to the Minister, in a government department which has historically had major issues regarding public dialogue and engagement. Only “large-scale” projects will require a review. Worse still, there is a continued reliance on “Letters of Advice,” which have been identified as a signficant pathway for avoiding a bona fide assessment, and a matter of concern for many years among environmental organizations.
3. Given the fragile state of many fish stocks and marine creatures in general, as well as the declining health of salt water environments around the planet, including notably the Gulf of Maine, it is essential to stay up-to-the minute on scientific and traditional knowledge and observations. For that reason, this Act should include a commitment to report on state of fish and fish habitat on an annual or biennial basis.

Public Participation:

1. Although the issue of who has “standing” has been resolved in regards to the proposed CER, and there is a promise that the public will be allowed to participate earlier in the IA process, there is almost no detail on how the government will extend the rights to the public to participate in the various agency reviews, or along the steps of the IA process. All that the Minister is so far required to do is to provide “an opportunity to the public to participate” during the planning stage of an IA, and in any regional or strategic assessments (which are not fleshed out in the Bill, and remain “discretionary”). The IAA has some power to decide on participant funding if it has a budget to do so, but it is not evident if there is a similar provision for reviews done by other agencies, for example the offshore petroleum boards. It seems like this aspect has not been fully thought-out by the government. To restore public trust, more detail and certainty about the public’s rights and opportunity to participate is required.
2. The “public registry” is a great proposal. Once it is up and running, this will be very useful to all those who are interested in a project or a bioregion’s health, provided that the public is aware of its existence and has good access to it. However, it is imperative that the registration system ALSO requires notifications from proponents directly to all affected populations rather than simply relying on an online registry.

Sustainability Criteria and Strategic Assessments:

1. Other analysts have commented on definitions that are absent from these Bills. We note the definition for “sustainability” is so vague it could not be used to clarify any issue. For example, why does this definition not include the concept of ecosystem or bioregion? Fix this, or we will all be going the long, expensive way around, using the courts to detail these definitions.
2. Similarly, there is very little useful detail on the proposed optional or discretionary regional or strategic assessments, although for the latter there is a federal government policy and process in place that has been standing still for almost a decade now.

Addressing the Climate Crisis

1. The words “climate change” appear exactly four times in Bill C-69 – and only in the IAA Act. The first is in the title of the federal Minister McKenna; the second in the preamble to the Impact Assessment Agency Act; the third is in the list of “considerations” relevant for an impact assessment; and the last is in the list of factors for the Minister to keep in mind when making a “determination.” This is shocking considering that climate change is definitely the hugest environmental issue of our time, related to almost all other environmental and population impact and health issues.
2. Between 2004 and 2009, the federal civil service developed this tool for strategic assessment (see references below), so it already exists. The standard for measurement is also available (Paris Agreement). In June 2017, the government of Canada undertook to begin Strategic Assessments on major environmental issues, and commited that the first one would address climate issues. The language in Bill C69 is vague on Strategic Assessments and gets us no closer to the task and completion of this initial climate strategic assessment. Time to get it going on this Climate Strategic Assessment now! This assessment would and must set the context for all the work done through impact assessments, panel reviews, Ministerial discretionary orders, regulation-based approval processes. Flowing from this, federal legislation can more effectively move urgently towards the 100% clean energy economy that will ensure survival for some life on our planet.
3. Bill C-69 falls short in not creating an arms-length independent centre with a specific mandate for energy data collection, information and education. Despite much discussion about this prior to and throughout the consultation process, there is no plan. This data would enable viable scientific forecasts about what energy production is needed for the “national interest.” It is also crucial for monitoring Canada’s success in dealing with climate protection promises and goals.

Mandi’s contribution to our chapter’s Earth Day 2017 youth art exhibit.

Indigenous Peoples’ Rights to Free, Prior, and Informed Consent:

1. Nowhere in these Bills is there reference to the United Nations Declaration on the Rights of Indigenous Peoples, which Canada has agreed to uphold and implement at all levels. This includes of course the principle of free, prior and informed consent in all stages of the impact assessment process. Good words are spoken but the legal requirements to enact this commitment, within the proposed legislation, are absent.
2. If the CER is mandated to deliver on Indigenous (Aboriginal) consultation duties, will this hold up at the Supreme Court?

Putting the Money where the Mouth Is:

1. We regret that we have not done a comprehensive review of what got funded and what did not in the federal budget for 2018. It appears that a considerable amount of money has been set aside to restore much-needed scientific, conservation, and enforcement capacity to the Departments of Fisheries and Oceans and of Environment and Climate Change, which were gutted of this expertise during the 10 years of the Harper government. If this money is spent for this purpose, great news!
2. Funds are also needed for climate change research (and the database mentioned above), as well as strategic assessments of major industries such as fossil fuel hydrofracking, tar sands extraction, majors dams, methylmercury pollution associated with clear-cutting, drinking water aquifer and other source inventory, and water export impacts on Canada’s drinking water supply, as well as reinstating fresh-water and science research programs cut from federal departments, etc. When the government commits these funds, alongside the improvements to this legislation under discussion, as suggested above and by other environmental and population health organizations, then we will know that our grandchildren’s futures are more secure.

Risky and contentious deep water offshore fossil fuel exploratory drilling, by BP, south of Nova Scotia, was approved by Minister McKenna only a week before Bills C-68 and C-69 were introduced in Parliament. Elements of this proposal underscore many concerns we present in this submission. Thank you, merci, wela’liek for taking the time to review our concerns set out in this document.

References:

Blakes’ Business Class. Federal Government Overhauls Canadian Environmental Legislation

Canadian Environmental Law Association. The Federal Government’s Proposed Impact Assessment Act: Some Forward Progress, but Changes Needed to Ensure Sustainability.

Council of Canadians: Cautions to consider as Trudeau government tables water and energy project review legislation; Will today’s announcement usher in new legislation to protect every lake and every river?; Cautions to consider as Trudeau government tables water and energy project review legislation; (NWT Chapter.) Letter on C-69 to federal environment minister Catherine McKenna.

DeSmog Canada. ‘We’re Under Assault’: Feds Quietly Approve Deepwater Oil Drilling Off Nova Scotia.

Environmental Defence. WATCH: Putting all projects to the “Climate Test”

Government of Canada: Strategic Environmental Assessment; Environmental and Regulatory Reviews: Discussion Paper; (Department of Fisheries and Oceans) Better Management of Projects; Bill C-69.

Lawson Lundell LLP. Canada: Impact Assessment Agency – An Overview

Parliament of Canada. Bill C-69 House Debate.

West Coast Environmental Law Association: The problems with the new Canadian Navigable Waters Act; Sweeping new federal environmental law bill contains promising changes, say environmental lawyers

World Wildlife Fund – Canada. Impact Assessment Act needs to do more to safeguard nature.

York Faculty of Environmental Studies. (Sustainable Energy Initiative.) Has Trudeau Delivered? A Discussion of Bills C-68 and C-69

 

 

Submission to Govt of Canada on their proposals for renewing environmental legislation and regulations

Comments on:

• Environmental Assessment & Regulatory Review Discussion Document
  (released by Environment & Climate Change Canada to public June 29, 2017)
• Part 2: Let’s Talk Fish Habitat (released by Fisheries and Oceans Canada to
  public July 24, 2017)
• Update on Navigation Protection Act Review (Transport Canada sent public
  notification of these four discussion papers August 16, 2017)
• National Energy Board Modernization Review (we are not aware if Natural
  Resources Canada has released an update on its Expert Panel report of May 15,
  2017, which we have also reviewed)

Addressed to:

• The Honourable Marc Garneau, Minister of Transport — mintc@tc.gc.ca
• The Honourable Dominic LeBlanc, Minister of Oceans and Fisheries Canada —
  min@dfo-mpo.gc.ca
• The Honourable Catherine McKenna, Minister of Environment and Climate
  Change   ec.ministre-minister.ec@canada.ca
• The Honourable Jim Carr, Minister of Natural Resources Canada —
  minister@nrcan-rncan.gc.ca

1. Introduction

I write on behalf of Kent County NB chapter of the Council of Canadians. People in our chapter, and in our approximately 70 sister Council of Canadians chapters across the country, work in our local communities on:

• advocating for climate protection policies;
• raising awareness that climate issues are anthropogenic so humans must change;
• a large number of environmental issues to do with the oil and gas industry;
• protecting the health of our watersheds, our forested areas, and the wellbeing and habitats of marine animals;
• and much more.

We are also engaged in national Council of Canadians work around our major
campaigns, including:

• protection of fresh water;
• increasing government democracy, accountability, and transparency; and,
• promotion of environmental protections in international trade agreements as well as domestic decision-making.

From the above description, it is evident why we have an avid interest in federal
government environmental protection policy, programmes, and legislation.
For a volunteer group like ours, it has been a marathon to prepare for writing this –
especially during the summer. We are all volunteers and this is a complicated matter. As
grassroots people living in rural and low-income communities, we are very motivated.

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We are certain to be most affected by gaps and mistakes in environmental approval
processes. We did a lot of reading and reviewing including:

• community and Indigenous submissions, panel recommendations and government
  responses to recent consultations about The Fisheries Act and The Navigation
  Protection Act (including materials released as recently as August 16 th , which also
  have the consultation submission deadline of August 28th);
• the “Forward, Together” report by the NEB Modernization Review Panel (NEB
  Panel) and the “Building Common Ground” report by the Multi-Interest Advisory
  Committee on Environmental Assessment (MIAC), and,
• what was learned when two Council of Canadians representatives engaged in
  consultations regarding Canada’s Oceans policies, arising from Canada’s
  participation in the United Nations’ June 2017 Oceans Conference.

Then we read your government’s Environmental and Regulatory Reviews
Discussion Paper (ERRDP). We find significant holes in the ERRDP argument,
rationale and design.

2. Rebuilding Trust: Review Process Issues

Your government made a pre-election promise to strengthen the federal government’s
environmental protection mechanisms, working in an open and transparent manner… At the very top of the ERRDP document, you emphasize the need to rebuild trust with
Canadians. Like us, most Canadians think and feel that getting better environmental
protection regulations and processes enshrined in federal law is very important. This is
certainly one of the reasons your government was elected with a majority in 2015.

Those of us who participated in the panel review consultations can see that the two
excellent reports – from the NEB Panel and the MIAC Panel – have made superior
recommendations to those contained in the ERRDP, even though we do not agree in
entirety with these two Panels. On the other hand, we see that the vision outlined in the
ERRDP is attractive but it lacks solidity. Omissions can give the impression that not all is
not as it appears, or that excellent ideas could have been perhaps intentionally dropped at the political level. We notice measures that would help the environment are not in there. These are elaborated more in Sections 3 and 4.

We are troubled that, in the past month, further “discussion” materials have been published by your government asking for public input on changes to the Navigation Protection Act (NPA) and the Fisheries Act (FA). The most recent was on August 16 th and the deadline for comments is August 28 th as per the ERRDP.

Your engagement planning for this entire review process has been challenging. The NPA,
the FA, and the NEB Act all feed into the federal Environment Assessment (or Impact
Assessment) process. This relationship is legislated. Each of these acts (and more, some
of which are also in flux) can trigger a federal assessment of environmental impacts.
Copious amounts of overlapping information were published online, but because it was
presented in a dis-synchronous manner it has been very hard to track the details.

Discussions on proposals for all the “feeder acts” really should have been consecutive not
concurrent. Our group made this recommendation in a submission to your government last Fall. If community organizations and other interested parties had a valid sense of where your government was going with changes to all the “feeder acts,” we would be better prepared to comment on your visionary report about proposed environmental or impact processes.

A contributing factor is that each federal department has undertaken the various
consultation processes within its own silo of departmental mandate apparently without full consideration of where the others were headed. In sum, consultations would have been more productive – and more democratic, accountable, and transparent – if the legislated flow of authority had been respected in the review process.

To add to our stress, the current “last stage” review and consultation is being done now in the summer, when pretty much everyone in Canada wants to have some down time as our summers are short. We understand about the urgency of revising this legislation.
Concerned community organizations such as ours have been treading water furiously to
try to stay on top of the overlapping processes, read all the materials, and get
submissions, comments or presentations in on time.

We have not seen much federal call-out or promotion for engagement in responding to the ERRDP. That fact, combined with the many challenges mentioned above lead us to recommend you extend the deadline for comments, and after Labour Day re-
advertise widely an extension of time for community response, with a minimum of
six weeks for the new deadline. Please take time to really listen to (or hear) and act on
what we and other commentators are saying. To make this process meaningful and helpful for coming generations, the holders of local knowledges and experiences must be
welcomed into the decision-making fold. The NEB Panel report makes this point
repeatedly when talking about both general stakeholder and also Indigenous community
relations.

3. The Devil is in the Details

It is impossible to enforce anything if the standards are vague. The NEB Panel report
provides many details on how to move forward. It calls for specificity in regulations: set out what is allowed and what is not. “The review proposal is a comprehensive work and
government should not take a piecemeal approach to implementation” reminds the NEB
Panel.

In our local chapter work we are dealing with “details” all the time. A member of one of our chapters attended the MIAC Panel’s public consultation session in Fredericton NB. She said the panel committee was attentive, and she felt public opinions and comments had been heard. After reading their Common Ground (CG) report, she commented, “It is not perfect, but it looks good. Still, the devil is in the details.” After reading the ERRDP report, we can see that many of the MIAC Panel’s recommendations have been diminished.

3.a  Points in the ERRDP:
In no instance should the proponent be in charge of any aspect of the environmental assessment or compliance processes:

▪ in the initial stage: consultation processes led by industry; industry must be
present and partnered but it is government’s job to do consultation

▪ during scientific study and reviews: (1) no preparation of Impact or
Environmental Assessment reports and analyses by consultants hired by the
proponent; (2) consideration could be given to establishing a list of approved
“independent, third party” consultants from which proponents could select; to be transparent, and trustworthy, this must be done through a public RFP call, perhaps with assistance from the Auditor General, and where that criteria and decision-making is developed and finalized through public input and open to ongoing public scrutiny

▪ after development: no self-regulation/monitoring by industry (proponent) – it
is in the public interest to have government inspect and enforce compliance

3.b  General points re: rebuilding federal environmental policies and regulations:

▪ During the 10 years of the Harper Conservative government, we lost science data, scientists, regulations, policies, funding, departmental branches and systems, and personnel. We do not find a thoughtful funding design to replace this capacity. Could the Auditor General be asked to assist with making proposals for this, on an urgent basis?

▪ During the 10 years of the Harper Conservative government, we did not only lose technical and regulatory capacity, we also lost our reputation as a nation. We want the final legislation you produce to show the global community we are a nation that practices and promotes democracy, human rights, government account-ability and transparency, and genuine environmental stewardship.

3.c  Points regarding the NEB review report and NEB Act, as they feed into the
Environmental Assessment/Impact implementation process:

▪ Your government is aware that we are deeply concerned about the December 16, 2013 MOU that gave the NEB authority to judge environmental impacts of fisheries within projects they are reviewing (see #1 below). We have repeatedly asked about this in com-munications to Minister LeBlanc and Prime Minister Trudeau, although no response has yet been received. We expect that this and all other similar MOUs, policies, and informal agreements will be rescinded immediately.

▪ We support creation of a Ombudsman of Landowners, as suggested in
the NEB Panel report.

▪ It is noteworthy and encouraging that – just this week – the NEB announced it will consider upstream and downstream GHG emissions during the renewed review of the Energy East Pipeline (EE). Thus, in essence, the NEB will be evaluating EE with respect to a range of national interests or priorities, which is the first step identified in the ERRDP “IA” process diagram. In the absence of these new regulations and policies, which are still being discussed, it is great news to learn that climate change and environmental hazards will be front and centre – along with economic and energy issues – as NEB evaluates EE. However, there has been a “pro” and “con” debate about this recent decision.

It is vitally important that the determinants of the “National Interest” are discussed in a transparent and inclusive process. To ensure rebuilding public trust, the consultation defining the “national interest” must be really broad and in-depth on both items and ranking. As diverse parties and commun-ities bring a broad range of perspectives to the table to develop a truly common agenda on where we all want Canada to go, this should break down some of the silo-ism that exists both between and in departments and non-government sectors. The ERRDP does not identify establishing this consultation process or structure. Fulsome consultation will be essential for realizing goals of inclusiveness, accountability, transparency, and bringing science back into the middle of everything. Similar structural accommoda-tion is needed for bringing traditional Indigenous knowledge-holders to the table before proposals gain development momentum.

▪ How will provinces’ “environmental” or “impact” assessment processes be brought into synchronization with the new federal system? This is a huge and central issue that must be addressed. The ERRDP vision is only concerned with proposals that fall under federal mandate. A double “duty” or “jeopardy” situation will continue to impact proposals that have aspects requiring both federal and provincial oversight. It is not a level playing field: proponents generally have adequate funding and are motivated by increasing their profits, while environ-mentalists, Indigenous Peoples, and communities often do this work as volunteers for the common good. Yet, both will continue to be caught in this trap, and only one side potentially has the resources to go the full length of both processes. The new federal legislation must address this situation, so that communities and individuals with limited resources know where to focus their energy. This makes sense because federal decisions are about the “good” of the entire nation.

3.d  Points regarding the Navigation Protection Act

▪ You have received extensive input on the need for bringing back protection to to help the creatures that live in, on and around our Navigable Waters. Contrary
to this, the NPA review panel has recommended not restoring the “Schedule” to pre-Harper standards. Their proposal of having a review process to add lakes and rivers to the Schedule is very minimalist and “high level”: none of the structural details are provided. We are being asked to trust that you will do this properly, but frankly many of us we are still in an era of mistrust. In addition to whatever is ultimately done about this part of your proposal, we are asking for the reinstatement of all lakes and rivers formerly protected through the Navigable Waters Protection Act’s “Schedule.”

▪ In general shipping is little considered in environmental impact assessments: it seems to be regarded as a “given” that the right to navigate waters takes primacy over virtually anything else. Recently Minister LeBlanc made an exceptional appeal to shipping tanker/transport companies to slow down in the areas of the St. Lawrence where several dead Right Whales have been found this year. Now a $25,000 fine has been instituted for those shipping through these waters who fail to slow down, but the fines must be much stiffer to change the conduct of these companies. For all vulnerable habitat or migration waters, protection from shipping-tanker kills must be in the NPA in clear language and very specific terms. As has been done in this emergency situation regarding the Right Whales, capacity needs to be on deck in full force too. This will require funding.

3.e  Points regarding the Fisheries Act

▪ In your current material about changes to the Fisheries Act, you comment that the multiplicity of stressors facing marine life fall into a variety of jurisdictions and that they can be tackled through collaboration. Yet we see no plan for how that collabor-ation will take place. The crises enveloping marine life are increasingly severe. A major factor in this crisis is that no one entity is “in charge” – accountable – for the full range of protection, regulation and enforcement measures that are required.

One significant example is the hazards posed to indigenous or wild sea creatures when aquaculture goes wrong, which it frequently does. This past week, just off of Vancouver Island, tens of thousands of farmed Atlantic Salmon accidentally got loose and are now running with the endangered wild or indigenous Pacific Salmon. As well, this week a video was released showing many sick and/or deformed aqua-culture salmon in west coast fish farms. Obviously, some international accords must be signed to address these matters. But, first we need the proper protections –including genuinely appropriate design of a project, regulations of operation, and enforcement of standards – in our own country. As things stand presently, no collaborative or single authority has the powers to stop a process that will result in further disaster to wild/indigenous fish from aquaculture populations.

We hasten to add that this is just one of many, many such examples where our marine life protection policies are inadequate. The point we are making is we need one authority looking out to protect all sea life for future generations, using the best science and all other possible tools, as well as stakeholder round tables to gather expertise, share rationales, and secure commitments. That means breaking down silos in mandate and jurisdiction, and working together for the common good.

▪ Because of the undermining and undervaluing of capacity that DFO Science,
Conservation, and enforcement programmes have experienced in recent decades, a situation emerged where millions of herring beached and died in the Bay of Fundy this past winter and DFO response was meagre, slow, and ultimately inconclusive except to say the event was now finished. Even more ecently there was a report from scientists at Simon Fraser University that found that DFO’s failure to monitor as much as half of all wild salmon populations on the west coast is contributing to the imminent demise of that fishery. Indigenous communities on the west coast are distraught by this deepening crisis and their grassroots members and leaders are beginning to take matters into their hands. Funding, personnel and libraries must be restored and renewed to address worsening conditions for marine life.

▪ For fresh water we need the complete revival of and funding for the Experimental Lakes science development program: this means restoring federal funding to needed levels so that collaboration will flow between  governmental and scientific/ngo communities.

▪ Put the definition of HADD (“the harmful alteration, disruption or
destruction of fish habitat”) back into the Fisheries Act, and add policies, funding, and personnel to assist with rebuilding degraded and damaged habitats.

▪ “Cumulative effects” on a species or habitat must be included in all
environmental assessments.

3.f  Points regarding the Oceans Act

▪ We ask that you consider how the ERRDP proposal can be augmented to
break down federal department silos and actually protect our environment
from even our own government’s initiatives. Without living and vibrant
oceans our planet is not viable. Between the Oceans Act, the NPA Act,
and the Fisheries Act, it is possible to weave a web of protection. It is
imperative we start today.

▪ A critique of the Laurentian Channel Marine Protected Area (LCMPA) was submitted by Kent County COC Chapter in July, 2017 (see #2 below). As with many of our communications on marine and coastal issues, we have never received a response to this. We are also aware that you received communications regarding the LCMPA from Dr. Rodolphe Devillers from Memorial University in Newfoundland (dated July 18, 2017), and others. One example of the issues raised by us and others is that the LCMPA proposal allows oil and gas activity in what amounts to 98% of the so-called “protected area.” This lapse in judgement suggests that your government still has a lot of work to do enforcing environmental impact logic and standards on its own departments. Protection of Marine Areas must be done according to established international standards, for which the science is available. Anything less is just window dressing and a betrayal of future generations.

3.g  Additional points raised by ERRDP and other reviews:

▪ Both the NEB panel and the Common Ground report address the need to respect the UN Declaration on the Rights of Indigenous Peoples (UNDRIP). They also both speak to the necessity of culturally respectful processes to facilitate inclusion of Traditional Indigenous Knowledge (TIK) throughout all review processes up to and including the actual Impact and/or Environmental Assessments. However, UNDRIP is not mentioned once in the ERRDP.

This is a very serious concern for us. UNDRIP sets the standard for what must be in all environmental reviews in Canada. Further, the ERRDP only poses – but does not address – the question of assuring cultural competence and inclusion when integrating TIK in federal environmental protection processes. We want to know your specific plan: the who, when, how, where, why, etc., for this crucial element of the entire proposal.

▪ The Precautionary Principle was advocated for all instances of uncertainty in the Common Ground report and this theme was taken up in the ERRDP. Our question is: what is the threshold for elevating the Precautionary Principle to centre stage in a proposal discussion, or a review process? How will this button get pushed? With so much our natural environment in a precarious situation, we need to make sure that the regulatory pathway to enacting the Precautionary Principle is transparent and accessible to all.

Canadian case law upholds the overarching trustee responsibility of government to err on the side of caution when legitimate “flags are raised” about dangers to human health. Despite this, at the current time, federal agencies are unable – for example – to ensure that aquaculture industries do not allow diseases, medicines, or modified fish to escape into indigenous (wild) fisheries populations, yet western and indigenous science voices are very concerned about these issues.

Similarly, not so long ago, unconventional hydraulic fracking was considered safe, and people who spoke about possible risks faced stiff opposition from governments who wanted to allow fracking industries in their regions. Now science agrees with many of the concerns that were raised by citizens before peer-review science confirmed what local people were seeing.

This are just two small examples of the gaps that highlight the need for clarity on how to arrive at a decision to rely on the Precautionary Principle. The Principle offers a meaningful interim solution to emerging environmental concerns. We need to see the details about how the Precautionary Principle can be enacted by public call, to feel confident that it will indeed be relied on appropriately.

4.  Our New Proposals to You

Ongoing pathways for dialogue and information sharing are of greatest importance to
protecting bioregions and using deep ecological analysis. These paths must be enshrined
in legislation, supporting regional citizen scientists and traditional knowledge-holders to
share expertise with frontline government personnel. The NEB panel report includes a
proposal along these lines:

“Our recommendations call for Regional Multi-Stakeholder Committees designed to
improve emergency preparedness and make standards more rigorous, enhanced
monitoring, and more robust analysis of risks to set priorities and drive continuous
improvement. The synergy achieved through these Committees will also provide
deep insight as to the scope of regional interests for any future project reviews.” (pg
5, in “Executive Summary” of NEB report).

However, this is not reflected in the ERRDP.

Our proposal is that your government implement this “regional multi-stakeholder
approach” by creating regional Environmental Protection Networking Committees
that would advise EACC, NRC, DFO, TC, etc..  They would meet face-to-face on an
appointed schedule to exchange information. They would also meet on an “as needs” basis, when urgent issues arise.

• The community members could be respected individuals nominated through a
  public process, and representatives appointed by relevant organizations. Travel and meeting costs will paid by the government. The information and networking
  facilitated by these bodies will more than justify the costs.
• Under the wing of EACC, all relevant federal departments could nominate a gate-
  keeper liaison staff person to sit on each Regional Committees. Opening these
  communication paths would be a huge step forward. This proposal would address a
  lot of problems that local communities like ours have, when trying to bring local
  environmental issues to the attention of federal departments.
• We have previously noted that panel reports contain worthy and important
  specifications on inclusion of and working with Indigenous communities and elders. Our proposal is an inclusive one, advocating that Indigenous represen-tatives must also be part of these regional advisory bodies. However, nothing mentioned here is intended to replace Canada’s UNDRIP responsibilities to
  consult BEFORE doing anything at all, or allowing anything at all. We just think
  everything will work better if we are all at the same table during operational
  discussions. 
• Importantly, local “citizen scientist” networks (through community associations,
  independent businesses, post-secondary institutions, non-governmental
  organizations, etc.) would be connected to our proposed Environmental Protection
  Networking Committees. The need for this became evident during the recent marine animal die-off crises in the Bay of Fundy. In previous decades, there were strong links between government conservation/enforcement staff and concerned
  community members. After various departmental restructurings in the latter 1900’s, this relationship diminished as bureaucracy grew. The remnants of this voluntary collaboration were killed by the previous government, who wanted no intruders to disturb their pro-industry agenda. The regional networking committees can be a conduit through which urgent connection between citizen scientists and personnel in federal frontline environmental protection departments is facilitated, as well as for preliminary discussion on proposals, etc.

On a different topic, we recommend that the criminal code be amended to provide
stiff consequences for industries who violate environmental regulations by, for
example: releasing deleterious substances into the land, air or water; damage to habitat of protected animals or plants; traveling too fast or carelessly through habitat or migration areas; or, otherwise doing substantial, irreversible, or irremediable damage to the environment.

Our greatest concern, overall is that democracy, accountability and transparency be the modus operandi of all government departments, branches and personnel who have responsibility for ensuring protection of our threatened and struggling natural  environment. That is how you will rebuild trust as well as allow your greatest allies, us – the grassroots people – to assist in protecting what is left for future generations. Therefore, information must be made available to people in affected areas NOT ONLY through digital transmission such as social media, websites, email, etc.

Many rural and many lower-income people in Canada do not use computers as  conveniently as most urban and highly-schooled Canadians. Yet, it is invariably the
poorer and more rural people who are living in what some term as proposed “sacrifice
zones,” where proponents or governments seek to do major resource extraction  developments. In other words these populations are “the most directly affected.”
Communications to the public must be published in print media, via flyer at local government offices, and through all other available person-to-person means, including seeking networking/outreach assistance with local environment, community, ngo, and Indigenous communities and groups.

This takes us back to our proposal for the Regional Multi-Stakeholder Committees. Provided with the flyers and information, the members of these committees can become
funnels for outgoing material, as well as incoming opinions and emergency response
collaborative organizing.

Notwithstanding any overlap with points made above, and in solidarity, we endorse the call made by West Coast Environmental Law for a “next-generation environmental assessment law for Canada that: works to achieve sustainability for both the environment and human well-being; assesses the cumulative impacts of development projects in a region; advances reconciliation and co-governance with Indigenous peoples; ensures more projects get assessed; aligns with Paris Agreement climate commitments; is transparent, accountable and includes meaningful public participation, including language rights.”

Submitted by:

Ann Pohl, Kent County NB Chapter, Council of Canadians
coc.kent.county.nb@gmail.com
506-785-2998 (home) / 506-521-0465 (cell)

 

 

1. see: www.neb-one.gc.ca/bts/ctrg/mmrndm/ 2013fshrcnscnd-eng.html 
   
2. see: https://kentcountynbenvironmentwatch.wordpress.com/2017/07/11/
   proposedlcmpaissues/

A Call Out to Mobilize for Coastal Life and Ocean Protection

Prepared for circulation to all Water Protectors:
Our Allies, in and around the Council of Canadians

Near Saglek Bay in Nunatsiavut, the homeland of the Labrador Inuit. ©Ossie Michelin

Near Saglek Bay in Nunatsiavut, the homeland of the Labrador Inuit. ©Ossie Michelin

All waters—fresh and salt—are connected

For more than 30 years the Council of Canadians has been a leader on fresh water protection in Canada. In 1999, we published a comprehensive National Water Policy advocacy brief regarding how to protect watersheds and implementation of the human right to water.

Fresh water flows into the sea. Contaminants that flow into rivers and streams from industrial pollution, such as fracking and burst tailing pond dams, drain into estuaries, bays, seas, and oceans. These contaminants compound the abuse and neglect already poisoning the salt-watery majority of our planet. Survival of marine life, already stressed by acidification and warming waters, is further compromised.

The Council of Canadians is not loosening our efforts on freshwater issues. This is a “both/and,” because the planet’s waters are all connected. We are calling out across our organization, and to allies, to develop a coordinated, unified, strategic campaign on protecting coastal life and ocean waters. In a separate communication sent today, 24 chapters of the Council of Canadians ask the Prime Minister of Canada to meet with us to discuss the issues raised in this call to action.

The magic of life in coastal waters, Gaburus, Cape Breton Island, NS. ©George Griffen

Our coasts are being neglected

Canada has a huge global stewardship responsibility. We have more oceanfront than any other nation. Gaining protective legislative and regulatory measures will not be easy. The plethora of issues is compounded by official lethargy and avoidance.

Every day, volunteers in the Council of Canadians‘ community chapters work with people from local networks and environmental NGO’s across Canada to advocate for marine life and salt water protection. We are united in alarm about the contamination that will certainly result from hundreds of oil and gas export tankers, each day, crossing the fragile and stressed waters of the Georgia Strait, Salish Sea, other western coastal waters, Bay of Fundy, Gulf of Maine, Beaufort Sea, and more of our shore waters. Much of the intended export material is bitumen, which truly cannot be cleaned from the water after a spill. Each of these areas provides habitats for designated species at risk and/or for marine life on which Indigenous Peoples and others depend for sustainable livelihoods.

In particular, Atlantic Canadians feel betrayed by government on marine protection: “Frankenfish” in PEI; aquaculture diseases spreading to wild populations (despite government assurances this would never happen); the evaporation of Newfoundland’s cod fishery; the loss of the salmon fishery in New Brunswick; the loss of some unique Striped Bass spawning habitat in Nova Scotia; off-shore drilling throughout the near Atlantic Ocean; etc.

Darren Porter’s Herring Weir, Minas Basin, NS. When other fish are caught,
such as this stupendous Striped Bass, they are released. ©Erica Danae Porter 

Countless millions of dead herring: a case in point

Beginning mid-November 2016, dramatic mortalities of herring were evident in the Bay of Fundy—a powerful, unique ecosystem boasting the highest tides in the world, and is home to rare species such as the Right Whale, provides spawning grounds for the Striped Bass, and has a flourishing ecotourism industry.

Why the big fuss about the humble herring? The herring are a primary food source for larger marine life in the Fundy, as well as people food, bait for shellfish traps, and a significant resource export. Without herring, the Fundy fisheries collapse.

Contrary to frequent public messaging, energy generation by tidal turbines can seriously harm marine life. Depending on design, direct strikes can kill and injure animals caught in the mechanism. Arguably more insidious is the noise, vibration and pressure change disruption of the marine environment. Many at-risk sea mammals, and forage fish like herring, have very sensitive auditory biology. Despite the urgent need to generate energy from non-fossil fuel sources, this calls into question tidal power’s “green” status.

In April 2016, the Science Advisory Committee for the Maritimes of the Department of Fisheries and Oceans (DFO) reviewed a proposal to install an experimental tidal turbine in the upper Bay of Fundy. The DFO advisory committee clearly said the proponent’s baseline data was inadequate to establish an environmental monitoring plan. The province of Nova Scotia immediately approved the turbine’s deployment in the Minas Passage. Fishers’ associations are currently taking the province to court over this inconsistency.

Left: Busy Digby Harbour, NS. ©Pics by Mitch (FB)  
Right:  Sandy Beach, on the Northumberland Strait, NB. ©George Griffen

Turbine deployment happened in early November 2016. Within days of the onset of testing and commissioning, dead herring began beaching further down the Bay. DFO’s response was sluggish. While die-offs continued, the department spent weeks testing and retesting for “the usual suspects”: viruses, bacteria, algae bloom toxins, and predators. DFO acknowledged a unique “densification” or “aggregation” of herring in the die-off bays and coves (ie. overcrowding), but had no explanation for the phenomenon. (See this “A Sequel” link for more info on herringcide investigations and theories.) 

Many residents, including fisherfolk, are certain the herring were affected by the turbine. People who know these waters believe the herring fled from the Minas area to similar marine environments further down the Bay. Injured or overcrowded, that is where the herring were seen swimming abnormally, losing strength, and ultimately dying. Repeated calls to government and industry – to please stop the turbine to determine if it was the cause of the herring die-off, or to send cameras and divers to the bottom of the Fundy in the Minas area – were ignored.

Throughout the entire “herringcide” event, DFO refused to acknowledge that the synchronous turbine disruption of the Bay’s marine environment demanded serious evaluation. Many observers feel this is due to politics: Nova Scotia wants tidal turbines to succeed. The province has invested a lot of cash and political capital in creating the Fundy Ocean Research Centre for Energy (FORCE) to start-up major tidal energy generation. Powerful corporations see a huge market for “green” Canadian electricity along the US eastern seaboard, involving undersea cable links from the controversial Muskrat Falls in Labrador, biomass generation at Point Tupper NS, and upcoming Fundy tidal generation.

Seal near Annapolis Royal, off the Bay of Fundy, NS. ©Pix by Mitch (FB)

Deepening the public’s scorn for DFO’s controversial “look over here, not over there” herringcide investigation, a 2013 Memorandum of Understanding surfaced in early January 2017. This gives the National Energy Board responsibility to assess risk to fish and fish habitat near proposed pipelines and power lines. The possible existence of a similar understanding regarding FORCE initiatives in Nova Scotia could explain DFO evading questions about the new turbine’s possible effect on herring.

Like all such development proposals in Canada, Cape Sharp/Emera’s turbine in Minas Passage went through a provincial environmental impact assessment (EIA). This means that the proponent contracted a company that wrote an EIA report. The government then reviewed the paperwork, and approved the application. In some such instances, governments put conditions on approval, but the proponent is responsible for undertaking, monitoring, and reporting on their own compliance. This process is ridiculous. Asking the fox to install security for the henhouse is unacceptable and makes a mockery of the intent and meaning of environmental assessment.

In the past two months, more than 70,000 international and Canadian individuals have signed a petition calling on federal Fisheries Minister Dominic LeBlanc, Nova Scotia Premier Stephen McNeil and New Brunswick Premier Brian Gallant to address the issue of herring die-offs. On January 3, 2017, an open letter was sent to Prime Minister Justin Trudeau, and all these other political leaders, bringing their attention to the petition and asking for a response on key points. To date, none of the aforementioned have responded.

Bull Kelp on beach, Tofino, B.C. ©Alexandre Robichaud

The system is failing marine life, and us

This environmental crisis has brought to the forefront a host of broader concerns. DFO simply does not seem to be up to the job of protecting marine life. We understand that DFO’s scientific and species/habitat protection mandate is undermined by its multi-pronged mandate. Most significantly, DFO was hard hit by the extreme politicization of science, including restructuring and defunding, that happened during the Harper regime. At that time, scientists were muzzled, protection legislation was gutted, and key programs and personnel terminated.

As mentioned above, EIA processes across Canada do not protect the environment, and other protective legislation was stripped of its powers by the Harper regime. The Justin Trudeau government came into power promising to renew and revitalize Canada’s environmental regulatory system. Standing Committees and panels recently finished consultations on these ravaged laws. Each committee, dealing with each legislation, picked which major cities to visit (or not). All ignored frontline rural areas that are often most impacted by poor regulations. In the online consultation option, the questions funneled towards the interests of big government, not the affected communities. We will be watching to see what these consultations generate.

Herring feed off Newfoundland, George Griffen.

Left: Humpback whale & friends enjoy herring snack. Cape Bonavista, NL. ©George Griffen   Right: Loon in winter coat, enjoying aneel, Bay of Fundy shore. ©Pix by Mitch

Environmentalist confidence in the Trudeau government further deteriorated with the November announcement of the Ocean Protection Program. Billed as being about proactive protection of the oceans, it prioritizes putting more resources towards clean up costs after anticipated shipping and pipeline accidents on our coasts. This is useful but not “protective,” which means “preventative” or “precautionary.” The Program also touts creation of more marine protected areas. Meanwhile, the very fragile and important Gulf of St. Lawrence is still open for oil and gas exploration where, intentionally or not, the planning processes are going slower than industry is moving.

“Consultation” seems to be the main public relations strategy of the current government. During the regulatory-related consultation processes in Fall 2016, many directly-affected stakeholders lacked resources and capacity to be at all tables and forums. In this vacuum, the Prime Minister recently held a few “pop-up” community town halls to demonstrate his sincere interest in hearing from ordinary Canadians. He was not seen in directly-affected or -threatened rural communities.

When marine life or habitat decimation occurs, other legal and ethical precepts come into play. In the instance of the herringcide, this happened on unceded Mi’kmaq territory. All of Canada is traditional Indigenous territory. The federal government has trustee responsibility for stewardship and protection of the resources, and is required to ensure that future generations of “Aboriginal” or Indigenous Peoples can enjoy their inherent rights to these resources. When profound environmental degradation occurs, the federal government is abrogating its fiduciary duty. Numerous related court cases are already in motion, eating up funds and personnel time that could go towards genuine protection. (See, for example, this link.)

More crises like the herringcide will be commonplace as our climate increasingly crisps and crumbles. Whenever this happens, those with the most direct knowledge of marine environments must be recognized as experts about what is happening in our own backyards: Indigenous traditional knowledge holders, fisherfolk, citizen scientists, naturalists, local environmental advocacy organizations, and ecotourism operators. These experts must be deliberately sought out, and not evaded or fought, by departments and agencies such as Environment and Climate Change Canada, DFO, and provincial departments. We should not have to go to court to keep corporate actions in line with the public good.

The Council of Canadians represents more than 100,000 people across this nation in a network of more than 60 grassroots volunteer-based chapters who work with a wide cross-section of allies. The Council’s volunteers are backed by a national staff of experts. We deserve an opportunity to have the Prime Minister meet with us about meaningful protection of our marine areas.

Published on February 16, 2017 by the Council of Canadians – Kent County NB Chapter.
Contact us at coc.kent.county.nb@gmail.com.

Swallowtail Lighthouse, Grand Manan, NB. ©Deborah Carr

Please Note: we will soon post our letter to the Prime Minister asking for a meeting.
It has already been co-signed by 25 Council of Canadians chapters across the country.