First came the ‘fast-tracking’ of infrastructure projects early in 2009. The 2010 Budget threw another blow to the Environmental Impact Assessment (EIA) process by removing large energy projects from the Canadian Environmental Assessment Agency’s (CEAA) jurisdiction and placing it into the hands of the National Energy Board (NEB) and the Canadian Nuclear Safety Commission (CNSC). The one thing that is clear is that by sneaking such provisions into the budget, the Harper government has once again managed to coerce consent for sweeping changes to the environmental regime in Canada without public debate. If the opposition parties rejected the budget then an election would have followed, and none of the parties are in a position to take such risk. This move comes ahead of the scheduled 5-year review of the EIA Act that is expected to start in May. The review guarantees public participation and debate. In essence the Harper government has made unilateral changes to the EIA process without recourse to the democratic right of the public to have a say.

In an interview with the Globe and Mail, John Bennett of the Sierra Club stated that “the government had every opportunity to make these arguments in the public and in the proper forum and instead they have just turned their back on the public and the Parliament and said we are going to change this in a way that there will be no discussion.” In the Speech from the throne Harper maintained that the move guarantees a more efficient process: “To support responsible development of Canada’s energy and mineral resources, our Government will untangle the daunting maze of regulations that needlessly complicates project approvals, replacing it with simpler, clearer processes that offer improved environmental protection and greater certainty to industry.” Nevertheless the Budget (p.104) offers very little detail on the implementation simply stating that “The Government is taking steps in Budget 2010 to further improve the regulatory review process for large energy projects. Responsibility for conducting environmental assessments for energy projects will be delegated from the Canadian Environmental Assessment Agency to the National Energy Board and the Canadian Nuclear Safety Commission for projects falling under their respective areas of expertise. Participant funding programs will be established by each agency to ensure the timely and meaningful engagement of the public, stakeholders and Aboriginal peoples in the review of major energy projects.”

The implications of such a move cannot even be anticipated as many are not familiar with the two institutions’ assessment process. In what concerns the NEB its jurisdiction covers construction and operation of interprovincial and international pipelines and power lines; traffic, tolls and tariffs; export and import of energy; frontier oil and gas; and assists the Northern Pipeline Agency and conducts studies or research into energy matters. Given that the NEB jurisdiction is limited to pipelines and power lines it is not clear whether a hydroelectric dam would also fall under “its area of expertise” or whether a project that has no interprovincial aspect would be assessed by the organization. Since the Budget states that “major energy projects” are to be assessed by the NEB it follows that dams and other projects aside from transmission infrastructure are like to now fall within its jurisdiction. Although it is too early to envisage the implications one troubling aspect remains: public participation. The NEB is governed by the NEB Act but makes provisions to harmonize its process with the EIA Act, therefore only certain aspect of the EIA Act are followed. In respect to public participation section 24.1 of the NEB Act states: “Hearings before the Board with respect to the issuance, revocation or suspension of certificates or of licences for the exportation of gas or electricity or the importation of gas or for leave to abandon the operation of a pipeline shall be public.” Subsection 3 states: “The Board may hold a public hearing in respect of any other matter if it considers it advisable to do so.” If “major energy projects” are relegated to the NEB, public participation will be drastically limited unless changes to the NEB Act are made.

In an article by Sierra Club, some implications include allowing ministers to make ‘arbitrary decisions’ on how projects are divided. Already a known practice employed by proponents is to split one major project into smaller ones so that they fall within the exclusionary list of the EIA Act and therefore not go though the more rigorous assessment process, such as a joint panel. Such discretion would allow easing the “approval of projects such as large mines, dams and tar sands developments.” Moreover Bill C-9: An Act to amend the Canadian Environmental Assessment Act (LS-432E) passed in 2003 “exempts projects receiving funding from any of the federal programs listed from EAs. Such programs include the Building Canada Plan, Canada Strategic Infrastructure Fund Act, Recreational Infrastructure, Border Infrastructure” among others.

In a position paper by Gary Schneider of the Canadian Environmental Network it was revealed that “NEB shows a membership with strong ties to the oil and gas industry” and “is not a body with which citizens will find common cause. Regardless of its mandate to determine what is in the public interest, NEB hearings into Emera’s proposal to blast a high pressure natural gas export line through the heart of Saint John have revealed the process to be biased towards corporate participants and hostile to ordinary citizens. Anyone with a day job can forget being involved. First, the quasi-judicial nature of the hearings is a lawyer’s game. Those who can afford lawyers – energy companies hire the best – sail through with nary a hitch. Those who cannot are forced to deal with unfamiliar, arcane rules where one inadvertent slip-up could disqualify an intervenor, their evidence, or both…”

Even the CEAA report on the substitution process of the same project stressed that “overall, the principal expectations of the parties to the pilot substituted process were realized, although some insufficiencies were noted, particularly with respect to informal opportunities for public participation. As well, the lack of direct involvement of the Minister of the Environment in the selection of panel members and in the establishment of the panel’s terms of reference created among some participants a perception of bias toward energy development and trade.” Aboriginal people should seriously consider the implications of these changes as the CEAA is clearly concerned that “the National Energy Board does not engage in separate Aboriginal consultation during the hearing process, nor can the NEB be deemed to represent the Crown with respect to the duty to consult Aboriginal groups.”  Their future participation in decision making on projects that affect their rights and territories is jeopardized.

As Sierra Club rightly argues “this year’s budget finished the job of dismantling our environmental safeguards.” Unfortunately the Harper government clearly regards environmental protection as “red tape” and less regulation leading to “improved environmental protection”.