Bill C-38 and the NEB

Bill C-38 was an act to implement measures announced in the 2012 federal budget, but had an extraordinary number of constitutional amendments attached to it. Half of the 400+ page document was devoted to environmental deregulation. Essentially, the Harper Conservatives abused their majority status to gut environmental legislation in Canada and assist industry in further externalizing the true costs of resource development.

Quick Facts:

  • Sixty-nine Constitutional Acts amended, others completely repealed (incl. Kyoto Protocol Implementation Act)
  • Number of lakes and rivers protected by the Navigable Waters Protection Act was reduced from 2.5 million to 159
  • Fisheries Act changed so that fish habitat would not have to be protected from development unless a commercial fishery was at stake
  • National Round Table on the Environment and the Economy was dissolved
  • Federal funding for the Experimental Lakes Area – a living laboratory of fifty-eight lakes in Ontario that has yielded solutions to such problems as acid rain and phosphate-induced algal blooms – terminated
  • British Columbia’s oil spill response centre – terminated

Public Participation

  • Public participation in pipeline hearings has now been limited to individuals who are “directly affected” or deemed to have “relevant information or expertise”.
  • See Hearing Order Appendix VI (p.36) for Line 9 guidelines.
  • Even if a citizen applies for participant status, is “directly affected” and has “relevant information”, the NEB can still choose to ignore their contributions.

Decision Making Power

  • Prime Minister Harper and his cabinet were given (by themselves) the authority to overrule regulatory bodies if they determined it to be in the “national interest”.
  • Cabinet now has the ability to override a decision made by the NEB of a pipeline over 40km in length. NOTE: Because the Line 9 application excluded the physical pipe, the final decision of the application will still rest with the NEB.
  • The chair of the NEB holds immense new powers. The chair may remove any member from the NEB committee who is seen to be holding up the process. Additionally, the chair may choose to vote unilaterally if consensus is not achieved.
  • Decisions will be made behind closed doors and with little public scrutiny.

Limited Scope

  • Previous to Bill C-38, the NEB review extended to any considerations the Board considered relevant. This could include both upstream and downstream activities of the project.
  • Regarding Line 9, the NEB now excludes “environmental and socio-economic effects associated with upstream activities, the development of oil sands, or the downstream use of the oil transported by the pipeline”. See Appendix I – List of Issues (p.14).

Species at Risk Act (SARA)

  • During review of pipeline applications, the NEB is now exempted from seeking to minimize impacts on the habitat of species at risk.
  • No longer any guaranteed review to evaluate ongoing impacts to endangered species.

Lack of Transparency and Accountability

  • The Canadian Environmental Assessment Agency is now able to exempt a designated project from going through the assessment process!
  • NO MORE JOINT REVIEW PANELS – a Canadian Environmental Assessment Agency enabled review panel is prohibited. Therefore, environmental implications of major energy projects will now be decided by the energy regulator.

References

The Oil Man and the Sea – Arno Kopecky

Eco Justice – What Bill C-38 means for the environment

David Suzuki Foundation – Bill C-38: What you need to know

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