Courting trouble with environmental amendments

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A group of lawyers is now warning that plans by the federal government to streamline environmental assessments following passage of Ottawa’s omnibus bill (C-38), risk getting tangled up in legal action with court challenges and therefore more delays.

Among other things, the omnibus bill will repeal the Canadian Environmental Assessment Act and introduce a new streamlined approach to environmental assessment.  It also introduces significant changes to the Fisheries Act, the Species at Risk Act, and the Navigable Waters Protection Act. Finally, it repeals the Kyoto Protocol Implementation Act, and cancels  the National Round Table on the Environment and the Economy.

In a letter to the Prime Minister the lawyers  called on the government to separate the environmental provisions from the rest of the bill.  The government has been arguing that C-38 streamlines environmental assessments by relying on provincial assessments instead of duplicating the exercise at the feral level.

According to Will Amos and Stephen Hazell of Ecojustice, environmental lawyers across Canada are looking into different ways they can bring a court challenge. One of the main criticisms of the new EA process is that it disenfranchises regular citizens  without a “direct interest” by excluding them from participating in assessments (only those with a direct interest in a project, say, an oil companies would have the right to be heard at environmental hearings). So, for example, we can envision a scenario in which the government can circumvent public opposition in BC  about major projects like the Northern Gateway.

Ultimately, there is a limit to what the government can do in restricting the scope of public consultations. Indeed the Supreme Court of Canada has already ruled on the Crown’s duty  to consult and accommodate Aboriginal interests when contemplating any decision that has the potential to adversely impact rights guaranteed under our Constitution.

It will be interesting to see where we go from here.