Greening Federal Environmental Law: An Overview

The Government of Canada has recently revealed a sweeping package of legislative reforms that, if enacted, will significantly change several of Canada’s most important environmental statutes.

For example, in early February 2018, Bill C-68 was introduced for First Reading in Parliament. This Bill is intended to “modernize” the Fisheries Act, and restore “lost protections” in the Act that had been removed by the previous government in 2012.

Among other things, Bill C-68 proposes to reinstate the broad prohibition against the “harmful alteration, disruption or destruction” of fish habitat. In CELA’s view, establishing and strictly enforcing this prohibition will go a long way in protecting seacoast and inland fisheries throughout the country.

Two days after the Fisheries Act amendments were introduced, the federal government tabled Bill C-69, which is omnibus legislation that proposes to:

  • repeal the existing Canadian Environmental Assessment Act, 2012;
  • enact the Impact Assessment Act;
  • repeal the existing National Energy Board Act;
  • enact the Canadian Energy Regulator Act;
  • revise the Navigation Protection Act; and
  • amend many other federal laws, including the Access to Information Act, Canada Oil and Gas Operations Act, Canada Petroleum Resources Act, Canada-Nova Scotia Offshore Petroleum Resources Accord Act, Environmental Violations Administrative Monetary Penalties Act, Mackenzie Valley Resource Management Act, and Species at Risk Act.

By any objective standard, Bills C-68 and C-69 represent an ambitious legislative agenda in the timeframe leading up to the next federal election in 2019. This is particularly true since these Bills will be subject to extensive Parliamentary debate, and will be referred to Standing Committee hearings before they are passed by the House of Commons and sent on to the Senate for its consideration.

However, it is also clear that many key components of these two Bills will require substantive amendments prior to their enactment in order to effectively protect the environment, safeguard public health and safety, and advance reconciliation with Indigenous communities.

For example, CELA’s briefing note on the proposed Impact Assessment Act concludes that the new Act suffers from many of the same weaknesses that plague the current Canadian Environmental Assessment Act, 2012, including excessive political discretion at all stages of the impact assessment process.

Other environmental law groups across Canada have reached similar conclusions about the need to amend the Impact Assessment Act to ensure that it requires robust, participatory and science-based decisions on environmentally significant projects.

Similarly, some legal observers have properly criticized the failure of the proposed legislation to incorporate or adopt the United Nations Declaration on the Rights of Indigenous Peoples, including the principle of free, prior and informed consent.

At the same time, it should be noted that Bills C-68 and C-69 are not the only environmental law reforms on the legislative horizon. In June 2018, for example, the federal government will be releasing its proposed changes to the Canadian Environmental Protection Act, 1999 (CEPA), which regulates toxic substances, biotechnology products, fuel standards, waste management, pollution prevention and other environmental matters.

In relation to CEPA reform, CELA has prepared several detailed submissions, and will be watching to see whether – or to what extent – the federal government acts upon the recommendations of the Standing Committee on Environment and Sustainable Development.

In 2017, this Standing Committee released a wide-ranging report that recommends amending CEPA to include a public right to a healthy environment. Since this important right is not currently entrenched in any federal laws or the Charter of Rights and Freedoms, CELA strongly commends the Standing Committee’s rights-based recommendation to Parliament.

In light of these various reform initiatives, CELA notes that 2018 may become one of the busiest and most influential years in the development of federal environmental law. However, whether this flurry of legislative activity results in real change – or merely tinkers with the status quo – remains to be seen.