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May-June 2017

Canada’s environmental assessments suck—and they’re devastating our land

How our country plans to reform them

Andrew Reeves

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Site C / Peace River before and after. Photos by Garth Lenz.

Ken Boon lives on a “little piece of heaven,” lost to the world in British Columbia’s Peace River bottomlands. His wife, Arlene, grew up in Fort St. John on a homestead her grandfather purchased in the 1940s. The property, where the pair farm grains and run an 18-acre market garden, overlooks Cache Creek, a tributary of the 1,923-kilometre-long Peace River winding west-to-east from B.C. to Alberta. Sitting in his office, Boon looks southwest to the Peace-Boudreau Protected Area, 17,000-acres of wilderness that B.C. almost made a provincial park to conserve winter habitat for grizzlies and wolves and calving ground for elk. Coming down the mountain, those elk herds traverse Boon’s property. “It’s a jewel,” he says. “It makes me sick to think we’re on the verge of losing this.”

By December 2016, the Boon’s ancestral home was no longer theirs. Expropriated by the government, the property— which was meant to stay in the family forever—must be vacated by May 31. They’ve been forced aside for the Site C dam.

First proposed in the 1950s, the plan to add a third dam and squeeze 1,100 megawatts of power from the Peace River for $9 billion has been kicked down the road for decades. In April 2010, then-premier Gordon Campbell passed the Clean Energy Act, legislation encouraging renewable energy projects such as Site C that supporters claim will add $3.2 billion to B.C.’s GDP until construction ends in 2024. Under the guise of meeting growing energy needs, B.C. Hydro triggered a joint federal-provincial environmental assessment for Site C in February 2012.

To critics, Site C is plagued by bad economics. Peak energy needs could be met at a similar cost by geothermal or natural gas plants. The 83-kilometre reservoir Site C requires would also devastate fish habitats and the lives of birds, bats, and rare flora in highly sensitive ecosystems. Up to 30 percent of the Peace-Boudreau Protected Area near Boon’s property would be flooded. The tilling of farmland and its unique microclimate where peaches grow would never return to the bottomlands. Local Treaty 8 First Nations would lose access to hunting and fishing grounds. Communities would change forever.

The Boons have been outspoken critics of Site C. “Any meeting that we could go to we went to, any part of that process that the public or affected landowners could take part we took part in,” Boon says. Yet the consultation phase proved little more than cover for the government to claim that massive highway overhauls necessary to accommodate the dam’s construction, for example, were approved by local landowners. The people didn’t choose the highway, Boon says; they selected the leastworst option.

Knowing the dam would cost them everything, the Boons raised funds for the Peace River Landowners Association to hire energy experts and lawyers to sue the province at the B.C. Supreme Court. Their argument: the province hadn’t actually considered public objections to Site C. A judge ruled the government had. The B.C. Liberals had an all-consuming desire to build the dam, Boon says: “If they choose to ignore you and bowl ahead, that’s what’s going to happen.”

Then the Boons met Anna Johnston. The 37-year-old B.C. native was outraged as talk of Site C’s revamp got louder. She seethed at the destruction of a river valley for unneeded power. Johnston studied at the University of Victoria’s law school with an interest in sustainable development, throwing herself into the environmental law club and landing a job with Ecojustice.

Soon after her articling was complete, Ecojustice was approached by a community group needing help stopping the dam. Ecojustice referred them to Johnston, her first clients.

It wasn’t long before Site C proved a clear example of a project that should never have passed its environmental assessment (EA). The problem, Johnston realized, was the outdated method governments use to analyze such earthbending projects.

Moving to West Coast Environmental Law in 2013, Johnston continued what’s become a crusade to reform EA. Site C, she found, was a classic case of what’s plaguing Canada’s failing assessment regime. People don’t understand that it’s all about process, she says. They arrive at a public comment period for an Environmental Impact Statement and want to shout their opposition during time that’s allotted for hired experts to table reports. Proponents spend millions drafting proposals in private; and while the public needs cash to participate, counsel and experts aren’t cheap. People get frustrated. If you’re engaged in assessment as a private citizen, odds are it’s your first time—and the stakes feel huge.

It’s hard not to get dejected. “There was a strong feeling… that we were just going through the motions,” Johnston says, “that no matter what the [EA] found the province [and Ottawa] was going to approve it.” Yet opposition mounted. Site C would be “a disaster economically, environmentally, [and] culturally for First Nations,” former B.C. premier Mike Harcourt told environmental blog DeSmog. “It shouldn’t be built.”

But in December 2014, B.C. premier Christy Clark greenlit Site C. The project “will support our quality of life for decades to come,” she gushed in announcing the deal.

What’s clear to Johnston is that EA as a planning tool failed the people of B.C. It continues to ask an outdated question—Will a project result in significant adverse impacts?—rather than one asking what a region wants economically and culturally from its environment, and crucially, whether the land can provide that future. And finding answers to these deeper questions requires an entirely new approach.

***

Canada’s environment assessment process has always lagged behind what advocates want. Robert Gibson would know. The University of Waterloo environment, resources, and sustainability professor began his career reviewing mining projects on Baffin Island before EAs existed. Federal regulators didn’t want to legislate an assessment regime to keep power in Cabinet. Yet they were pressured to investigate project impacts somehow; even America instituted a formal EA policy in 1969.

Reviewing the benefits and damages arising from any project is about more than industry getting to yes. Like with Canada’s legal system—where it’s often as important for justice to be seen to be done as it is for justice to be served—EAs have long been about creating a fair space for impartial reviewers to hear social and political critiques of a proposal. Reviewers act more as arbiters than judges; project approval rests with government. The public may not like the end result, notes York University environmental studies professor Mark Winfield, but EAs help people legitimize the process and resulting project.

At least in theory. Early efforts were “generally laughable,” Gibson says, a “commitment of… considerable vagueness” to assess risky projects. The Wreck Cove hydro dam in Nova Scotia, for example, was nearly finished in 1977 before its EA was. Encouraging business to incorporate sustainability into its planning has always been an uphill battle, and EAs forced reluctant companies to take actions they could have voluntarily. Effective assessment is time-consuming and costly, Gibson notes; “it’s hardly surprising it should have enemies.”

These first-generation assessments, however cumbersome, focussed public attention on pressing ecological issues and forced a rethink of environmental stewardship. None more than the MacKenzie Valley Pipeline Inquiry, a three-year consultation between Ottawa, industry, and First Nations from 1974-77 that considered the future of resource development in Canada’s North. The inquiry is widely understood as Canada’s first meaningful EA. Incremental changes and lawsuits throughout the ’80s gradually led Ottawa to codify in law rules long unwritten. The resulting Canadian Environmental Assessment Act (1995) is noble enough: Federal policy-makers would finally have to consider harmful impacts and, theoretically, reject especially onerous proposals. Its catchment for projects requiring assessment netted 6,000 applications annually.

Yet the process rotted from outside pressures. The emerging dominance of resource extraction for economic growth put any perceived “green tape” impediments in the crosshairs. Industry failed to bring eco-conscious thinking in-house. Top officials in Ottawa called environmentalists “radical groups” hell-bent on “hijack[ing] our regulatory system” to destroy jobs. Canada’s assessment process smelled of decay.

The stage was set for prime minister Stephen Harper to encapsulate in a new law how many felt about EAs. His majority government repealed the 1995 bill and replaced it with the Canadian Environmental Assessment Act (2012). Gone was any sense that EAs would provide fair opportunity for public discourse. Categories of assessment were swept together; ministries and federal departments were exempt from considering environmental factors beyond their offices; and authority was consolidated in Cabinet. Assessments fell to a few dozen. Meinhard Doelle, director of the Marine and Environmental Law Institute at Dalhousie University, believes CEAA 2012 marked the end of EAs in Canada. We will “undoubtedly have new environmental disasters… to deal with in future,” he warned.

***

Liberal leader Justin Trudeau vowed to scrap CEAA 2012 if elected. It was an easy political promise. East- and west-coast voters were angry at the power CEAA 2012 gave regulators to narrowly define who could participate in pipeline and fracking assessments. Harper wanted speedy approvals and shovels in the ground; he got lawsuits, protests, and revoked social licence. Voter anger coalesced as Canadians headed to the polls in 2015—and they chose Trudeau.

Within months, the new prime minister instructed the Ministry of the Environment and Climate Change to review existing assessment processes. Minister Catherine McKenna formed an Expert Panel in August 2016 to consult with Canadians and report their findings. By this point, McKenna had backed Site C, claiming Ottawa had no plans to reopen its assessment. Pushed last September to explain how her government could respect Indigenous Canadians while supporting Site C, McKenna told CBC Radio’s On The Coast that the project would result in significant economic opportunity. Moreover, First Nations had been engaged from the beginning, she said. “We’re thoughtful; we listened,” McKenna said. But, “maybe not everyone’s going to feel happy.”

McKenna also created the Multi-Interest Advisory Committee, which Johnston sat on, to assist the Panel. Johnston was skeptical. Getting Canadians engaged would be a tough sell, and she didn’t think the public would embrace a review with clear eyes and full hearts when losing was commonplace.

So, Johnston says, “I decided to go on a cross-Canada tour.”

It was a whirlwind. In September 2016, two weeks before the Expert Panel began their public consultations, Johnston flew to Halifax for what became an exhaustive pitch in legion halls, NGO offices, and libraries. A dozen people turned out in Halifax to workshop how best to turn frustrations into constructive feedback. Johnston was thrilled. “If you get 12 people to come to a talk about EA reform you know they’re committed,” she says.

Her tour landed on the Labrador peninsula as an active assessment there wound its way through the distant capital in St. John’s. Since 2006, Nalcor Energy, the provincial utility company, had proposed a $6.4-billion, 3,100-megawatt hydroelectric dam on the Lower Churchill River at Muskrat Falls. Some 30 kilometres west sits the town of Happy ValleyGoose Bay and its vibrant Inuit and Métis populations. A joint assessment was triggered in 2007 because of the project’s harmful environmental effects. Fears were inflamed after a Harvard University study found that if the project proceeded, methylmercury, a devastating neurotoxin formed when mercury interacts with bacteria and rotting aquatic vegetation, would spike in downstream Indigenous populations relying on fish and seals for food.

Johnston met Roberta Benefiel at a local Inuit centre. A fiery 70-year-old from Happy Valley-Goose Bay, Benefiel talks against the Muskrat Falls dam with a born-again passion and bureaucratic detail, thanks to years fighting a project she calls so needless it “almost makes you want to choke the life out of someone.” Funding applications were intimidating, Benefiel says. Before writing her request she spent days studying an environmental impact statement from Nalcor so rosy in its outlook that nothing bad, it seemed, could ever come from the project. “How do we battle this? What kind of funding do we need? What kind of experts?” she remembers thinking. “It was almost insurmountable.”

Despite obtaining $60,000 in funding to fight the dam, Benefiel and her comrades couldn’t halt the project. The review panel’s final report stopped short of rejecting Muskrat Falls, but urged the government to reconsider. As with Site C, both the federal and provincial governments approved the dam without deeper analysis.

By then, Johnston had moved on—to conservation groups in Fredericton; environmentalists in Ottawa and Toronto; three meetings in Winnipeg, one of which drew 200 people; four meetings in B.C. From September to December, Johnston lived from her suitcase, recording three days at home in November. Wherever they live, she found, Canadians face the same barriers in opposing projects: undercut public participation, a lack of funding, short timelines, and no big-picture approach.

Yet there’s a way to tie these disparate threads of discontent together to push for a new approach to EAs—one that takes assessment back to its ideological roots.

***

The premise of next-gen environmental assessment is simple: By thinking about a project in the context of community needs, economic gains, regional stresses, social impacts, and intergenerational factors, we gain an appreciation for what it stands for. Since the start of EA in Canada, mitigating a project’s most damning impacts was seen as sufficient.

These days, affected communities won’t accept that mitigation is enough. Why should they? “They want benefits for their community in the long run,” Waterloo’s Robert Gibson says.

Gibson has led the charge to replace the existing EA regime with next-generation assessment. At first glance, the concept seems flowery, yet a closer reading shows it’s anything but. New project proposals should represent the best option for delivering “lasting well being,” Gibson writes in the Journal of Environmental Law and Practice—benefits distributed across space and time. Economic, ecological, and social aims aren’t inherently conflicting, and next-gen assessment acknowledges their interdependence. This blueprint also positions assessments as the main method for public deliberation, without proponents and governments drafting backroom deals. Assessment would become more than just a hoop for proponents to leap through; it’s ultimately about asking governments and corporations to build a nation that’s equitable to us, our land, our water, and Canadians to come.

It starts by recognizing that we need balance from all approved projects, Gibson says, but that can’t happen by thinking about projects in isolation. Damage comes from mines and dams acting together.

We don’t need to look far to see the lunacy of ignoring cumulative effects. In Ontario, a regional analysis of paper mills near Dryden may have avoided the decades-long mercury poisoning of Grassy Narrows First Nation. The province’s multi-billion-dollar nuclear reactors have never faced EA or questions about whether it’s sane to house nuclear infrastructure near drinking water. In Faro, Yukon, what was once the world’s largest open-pit zinc mine remains an open sore two decades after it was abandoned. More than $350 million has been spent keeping its toxic wastes from seeping into local landscapes; complete remediation needs $1 billion. A University of Ottawa study, meanwhile, found the Giant Mine in Yellowknife may never fully recover from arsenic that leached into the land over decades of gold mining.Neither Northern project was properly assessed.

Perhaps the most crucial aspect of next-generation assessment concerns how greenhouse gas (GHG) emissions from pipelines or dams are considered. When Canada signed the Paris Climate Agreement in November 2015, Ottawa committed to keeping global warming below 2 C. Because of this, Dalhousie’s Meinhard Doelle argues, Canada must be leery of approving projects emitting GHGs beyond 2040. We have to acknowledge if a project will make it harder to meet our targets, he says. Squaring new oil and gas projects with Canada’s Paris commitments is nearly impossible, and a truly sustainable assessment would reflect this as an issue of intergenerational equity.

Assessments based on sustainability are not so controversial that government, industry, and the public can’t agree on what gets built. Many fundamental concepts in next-gen assessment are already broadly accepted. “This isn’t a lunatic fringe idea,” Gibson says. Yet since our understanding of sustainability has improved it’s made conducting effective EAs harder, he says; unlike before, we know our shortcomings and the stakes of our failure.

***

Environmentalists have tried to inject sustainability and fairness into CEAA 2012 before. But tinkering with the Act never addressed its fundamental failures, says Theresa McClenaghan, head of the Canadian Environmental Law Association. This time, she says, the zombie CEAA 2012 should be scrapped.

It’s a shopping list of improvements. More money for citizen participation and hiring experts would go far toward strengthening assessments. So would lengthening ludicrously short timeframes to decide a project’s fate. The public got three weeks to review 18,000 pages of Site C material from B.C. Hydro; hearings lasted 30 days. When the final report was tabled it came just 32 weeks after the Joint Review Panel was formed, deciding the Peace River’s future in two years. Right now, early consultation is left to proponents; but triggering EAs sooner would allow people like Boon and Benefiel to offer alternatives and modify proposals in meaningful ways.

In early April, the Expert Panel released their report. Embracing sustainability, they called for Ottawa to expand review timelines, assess cumulative impacts, and broaden Indigenous decision-making. They also pushed for a new quasi-judicial body to conduct all future EAs. Johnston remains optimistic that Canada will get new legislation, expected in early 2018.

The transition from an outdated assessment regime to one focused on sustainability could take a decade to percolate from Ottawa to provincial governments and industry. But people aren’t giving up. Setbacks at Muskrat Falls “makes me feel like I can’t quit,” Benefiel says. “They get away with this if we do.” The Boons, meanwhile, need a home.

But if the future of EA in Canada ensures projects such as Site C and Muskrat Falls are rejected, that cumulative impacts are heard alongside citizen voices, that Canada considers the GHG effects of its infrastructure, and that our treatment of First Nations meets our lofty rhetoric, the reform effort will be worthwhile. “Environmental assessment is supposed to be used as a planning tool: what we want our lands and resources and waters to look like,” Johnston says. “We’re not using it as that tool at all. Now is not the time to go backwards.”

Andrew Reeves is a freelance environment and science writer currently completing a book about Asian carp in North America. He has been a contributing editor at Alternatives Journal since 2012 and the environmental columnist for This since 2015. His work has also appeared in the Globe and Mail, Spacing, Corporate Knights, and The New Territory. Andrew lives in Toronto with his wife and daughter.

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