A recent Supreme Court of Canada decision will force Ottawa to be more aggressive about its environmental protection duties, says the mining watchdog who fought the federal government.
The decision will also stop Ottawa from leaving environmental assessments up to the provinces, as has been its preference in recent years, said Jamie Kneen from Miningwatch Canada.
“Part of the problem is that the feds have been trying to get out of the game for the last five or eight years anyway,” said Kneen. “(The Supreme Court decision) is going to put the federal environmental assessment act back on its feet.”
Ottawa’s slow drift to passive partner in major environmental assessments has been, in large part, pushed by bureaucrats in big, powerful departments like Fisheries and Oceans and Natural Resources.
These departments are meant to handle environmental assessments with the help of a junior agency with little clout, the Canadian Environmental Assessment Agency.
Over the years, the agency has had insignificant pull even if the Canadian Environmental Assessment Act, which took effect in 1995, is its responsibility.
“What the government had been doing over the years is chipping away at the application of the act,” said Kneen. “Eventually, mostly through the Department of Fisheries and Oceans—but they’re not the only culprit—they were finding ways to avoid the act rather than just going ahead and doing it.”
The departments became casual about environmental assessment by reducing their scope, which determine how much and what kind of information the government must seek in an assessment.
Before the court’s decision, bureaucrats had the discretion to split up projects into smaller parts so that they received less scrutiny – even if the project in its entirety was intended to get a larger assessment according to the act.
Miningwatch took the government to court over its lax handling of the Red Chris mine in northwestern British Columbia last year. Ottawa had decided to pass the project through a low-level screening by splitting up different parts of the mine’s construction, even if the assessment act clearly stated that a mine of Red Chris’ size should receive a higher-level assessment.
On January 21, the Supreme Court decided to strip the bureaucrats of their power to split up industrial sites and force them to consider an assessment based on the actual size of a project.
“The Red Chris mine was just a ridiculous example of (the practice), where they said, ‘OK, we’re going to pretend there’s no mine and pretend there’s just a tailings pond,’” said Kneen. “But in this case they’re physically part of the same installation.”
The Red Chris mine will go ahead, but future mines will have to receive assessments according to the law. There are more than a dozen mine projects currently in the regulatory process that are on hold because of the uncertainty over the department’s practises.
“This should actually speed things up,” said Kneen. “Because a lot of the delay in the processes come from the federal departments taking months, sometimes years, to decide what to do with a project.”
The Canadian Environmental Assessment Agency already increased its staff in recent years to speed up the regulatory process, he said.
In the Red Chris decision, Ottawa also lost some of its leeway to leave environmental assessments to the provinces.
“The feds were really trying to step aside and let the provinces handle it – they can’t do that anymore,” said Kneen.
The Supreme court pointed to existing harmonization agreements with some provinces that should be used instead of passing off assessments in an ad hoc fashion. The court also recognized the lower standards in provincial assessments.
“A lot of what is in the federal act and what environmentalists fought very hard to get into the federal legislation, just isn’t there at the provincial level,” said Kneen. “Some provinces are better than others, but they’re quite inconsistent.
“In Ontario, private projects don’t necessarily get an environmental assessment; full stop.”
Ottawa’s drift out off the environmental protection game could have been stopped with political direction from the ministers in charge of major departments, said Kneen.
“A lot of this didn’t have to go to court; it could have been sorted out with direction from above,” he said.
“The environment assessment agency is a junior agency,” he said. “They can jump up and down and tell (Natural Resources) what to do but the department doesn’t have to listen.”
Phone calls to the Canadian Environmental Assessment Agency and the Department of Fisheries and Oceans were not returned before press time.
Contact James Munson at