Bye Bye Miss Environmental Law

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This past year brought a lot of change and sometime stagnation in environmental law. For someone who tries to wear the mantle of environmental law scholar I should have been stimulated or at least productive in my writing and my comments. And I must say I have been in a way through my more “official academic” writing. However my public silence except for the occasional twitter comment has a reason beside my overcharged schedule. I haven’t participated to the public debate mainly because I have nothing good to add and my mental health requires it. I try to stay optimistic as much as possible about our future, but one cannot ignore the facts: the dire situation we are in and our stagnation. There is little I can do or say that will change the will of the public, the government or the international community. Therefore, out of self-preservation, I stay silent in order not to plunge into pessimism and depressive thoughts. But I am a stubborn academic and I am opinionated; in the end expressing my anger and dissatisfaction is probably more constructive, if only for myself.

Canada’s backward environmental law

I have no love for the government of the day; it is no secret. And I am fairly certain that the feeling is reciprocal. Amongst other things (and there are a lot of them) I find their views on environmental protection very limited and potentially dangerous. Canada is far from being spared from environmental problems with, to name a few, oil sand catastrophe,[1] disappearance of pacific salmon[2] and climate change impact on the ecological balance of the great north.[3] Although Canadians seem to believe that more environmental actions from the government are needed,[4] the government continues to ignore many environmental problems and in fact cuts into environmental regulations in the name of economic development and corporatist interests. Conscious of the bad public relation these cuts might bring, they hid one of the biggest blows to environmental law in a clause deep within the hundreds of pages of the omnibus budget bill: the dismantling of the Canadian Environmental Assessment Act.[5]

The new Act is but a shadow of its former self; which was already limited and drenched in discretionary powers.[6]  The method used to pass the Act was to say the least appalling. Not only was it hidden in an unrelated bill, and thus you really had to look for it, it was subtracted to committee review since budget bills are reviewed by the House of Common’s Standing Committee on Finance and not the Standing Committee on Environment and Sustainable Development.  This of course caused outraged,[7] but in the end the budget passed and we are now stuck with a weaker piece of environmental assessment legislation. Amongst other things, the government now has the power to avoid an environmental assessment if the province conducts one (s.37),[8] environmental assessment must be conducted in a pre-determined time regardless of the complexity of a project (ss.10 & 38(3)), and discretionary powers to determine what activities are subject to an assessment are increased (ss.10(b), 13 & 14).[9]

In summary, the scope of the new Act is very limited and a lot of the projects covered by the old Act will no longer be subject to an environmental assessment. Yes under the old Act the government could still go ahead with a project and disregard an assessment. However assessments often identified mitigation measures that were implemented and thus contributed to limit environmental degradation (even if only a little bit), and most importantly contributed to the accountability of the government, public participation in decision making and access to information. I think the most detrimental impact of the new environmental assessment regime (which also indicates how much the federal government cares about the environment) is that from now on we will have an even less precise idea of how much environmental damage we create.

To add even more to this gloomy picture the government is massively cutting the budget and employees of Environment Canada, Fisheries and Oceans Canada and other relevant departments and agencies,[10] fails to adopt any legislation or policy to deal meaningfully with climate change,[11] and fails to respect its obligations regarding endangered species.[12] It’s with great sadness that I sit here and wave as I say bye bye to our environmental law. The only positive thing I can say is that government eventually changes.[13]

The International Scene: Don’t Hold your Breath

As if this wasn’t sufficient, the international scene does not offer a better picture. This summer was the 20th anniversary of the 1992 Rio Conference of the Environment and Development which produce the Rio Declaration, the Convention on Biological Diversity and the United Nations Framework Convention on Climate Change, amongst other things. In honour of this anniversary the Rio + 20 United Nations Conference on Sustainable Development was organised. This conference was seen by many as a possibility to revitalize international environmental law which had been dampened by the failure of the international community to adopt a replacement for the Kyoto Protocol. I am sure some scholars and practitioner event dreamt in private of a renewed Declaration or at least some form of new instrument on sustainable development.[14] Some, including myself, were hoping that it would be the beginning of a discussion to create a true International Organisation (like the Food and Agriculture Organisation or the World Health Organisation) responsible for environmental matters.[15]

So what happened? Basically nothing. The conference has been widely regarded as disappointing.[16] I would even describe it as a failure. The Outcome Document, the only “outcome” States produced, is a compilation of weak political commitments and of reaffirmation of pre-existing obligations. I am not naïve and I was not expecting this conference to shake the foundation of international environmental law for the better. But that is the problem, my expectations were low, very low, and they were not met. During the 2012 IUCN Academy of Environmental Law Colloquium held in Baltimore, Maryland, I heard some people saying that although no real commitments were made by the international community, the international civil society was very productive and created a bunch of things that will have a positive impact. Without diminishing what NGOs, scholars and other groups accomplished during the conference, their work does not replace the actions of states which are the relevant actors in international law in the end. If they cannot convince states to act – like the IUCN did in 1992 in pushing for the adoption of the Convention on Biological Diversity – their contribution remains limited legally speaking.

Besides the disappointing result of Rio + 20, we have yet to see any agreement in the international community on the next step to take regarding climate change, the never ending economic crisis monopolises the attention of many states and relegates environmental concerns to the backstage, and little attention is paid to the pitiful situation of international fisheries, to name but a few international environmental concerns. The patient is not dead yet, but she’s far from strong. Waiting for the next elections is not as helpful in this case. I guess the only thing left is to continue writing and nag the world leaders until someone listens.


[1] See for example the report from Équiterre, Environmental Defense and the Pembina Institute: http://environmentaldefence.ca/reports/duty-calls-federal-responsibility-canada%E2%80%99s-oil-sands-0

[2] See the Cohen Commission of Inquiry into the disappearance of the Fraser River sockeye salmon: http://www.cohencommission.ca/en/

[3] See Statistic Canada’s report on Human Activities and the Environment of 2007-2008: http://www.statcan.gc.ca/pub/16-201-x/16-201-x2007000-eng.pdf

[4] Angus Reid poll, 66% of Canadians think the government is paying too little attention to the environment :

http://www.angus-reid.com/polls/39308/canadians_want_more_action_on_the_environment/

[5] Canadian Environmental Assessment Act, SC 1992, c 37, repealed < http://www.canlii.org/en/ca/laws/stat/sc-1992-c-37/latest/sc-1992-c-37.html >; replaced by the Canadian Environmental Assessment Act, 2012, SC 2012, c 19, s 52 < http://www.canlii.org/en/ca/laws/stat/sc-2012-c-19-s-52/latest/sc-2012-c-19-s-52.html >

[6] See for example Andrew Green, “Discretion, Judicial Review, and the Canadian Environmental Assessment Act” (2001-2002) 27 Queen’s LJ 785.

[8] One might argue that this is to avoid duplication, however federal and provincial environmental jurisdictions are different and thus the assessment usually covers different things. This is the equivalent of abdicating responsibility in my view. See s.5 of the Act.

[9] Regulations Designating Physical Activities, SOR/2012-147 < http://www.canlii.org/en/ca/laws/regu/sor-2012-147/latest/sor-2012-147.html >

[11] In addition Canada repudiated the Kyoto Protocol and repealed the Kyoto Protocol Implementation Act, SC 2007, c 30. See my post on the subject.

[12] See http://www.ecojustice.ca/publications/files/save-our-species/ and the many decisions of the Courts on the subject : Canada (Fisheries and Oceans) v David Suzuki Foundation, 2012 FCA 40; Adam v Canada (Environment), 2011 FC 962; Alberta Wilderness Association v Canada (Environment), 2009 FC 710; and Environmental Defence Canada v Canada (Fisheries and Oceans), 2009 FC 878.

[13] For more on the topic see Stepan Wood, Georgia Tanner & Benjamin J. Richardson, “What Ever Happened to Canadian Environmental Law?” (2010) 37 Ecology Law Quarterly 981.

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