This is the second post in the Environmental Law Centre’s blog series exploring climate change law in Canada. This blog series will provide updates on climate change law developments and include insights from our related law reform research. This blog series is generously funded by the Alberta Law Foundation.
At our third annual Green Regs and Ham Breakfast event in Calgary last October 2015, our keynote speaker was Julie Gelfand, Canada’s Commissioner of Environment and Sustainable Development (the CESD). At that time, Ms. Gelfand was not at liberty to discuss the CESD’s ongoing environmental audit, other than to provide a sneak peek that her report would deal with pesticides and pipelines.
The results of the CESD’s audit are now available as the Reports of the Commissioner of the Environment and Sustainable Development (collectively, the “Report”) were tabled on January 26th, 2015. The Report consists of 5 documents:
- The Commissioner’s Perspective,
- Report 1: Pesticide Safety,
- Report 2: Oversight of Federally Regulated Pipelines,
- Report 3: Departmental Progress in Implementing Sustainable Development Strategies, and
- Report 4: Environmental Petitions Annual Report.
In the introductory remarks, the CESD highlights the “two most pressing issues of our times: climate change and sustainable development” (Perspective, page 1). Following on the themes of climate change and sustainable development, the Report looks at pesticide safety, the oversight of federally regulated pipelines, and the progress of federal departments in implementing sustainable development strategies. As well, the Report provides an overview of environmental petitions received during the audit period.
The CESD audit considered the activities of the Pest Management Regulatory Agency (an agency of Health Canada) in administering the Pest Control Products Act. In particular, the CESD audit looked at the Agency’s use of conditional registrations, re-evaluation process, and timeliness of product cancellations. Overall, the CESD found (Report 1, page 24):
… the Agency had not always acted in a timely manner to fulfil its statutory objective of preventing unacceptable risks to the health of Canadians and the environment from use of pesticides.
A conditional registration means that one or more aspects of the risk assessment for a product are incomplete but the product is registered for use pending completion of that data. The CESD audit found that conditional registrations were often used for lengthy periods of time without review and assessment of required studies. The CESD audit found that the Agency never exercised its authority to cancel a conditional registration when a registrant failed to meet conditions. As well, the CESD found that the Agency failed to maintain a complete public registry of conditional registrations.
The CESD found that the Agency failed to make sufficient progress in completing re-evaluations of older pesticides as required by the Pest Control Products Act. As indicated by the CESD, re-evaluations are important for ensuring that human health and environmental risks remain within acceptable limits according to current scientific knowledge. Further, the CESD found that the Agency had failed to consider cumulative health effects when required in the re-evaluations.
Finally, the CESD found that the Agency failed to cancel the registrations of some pesticides that were deemed to have unacceptable risks. According to the CESD, the failure to cancel registrations in a timely manner means that workers, the public and the environment were exposed to unacceptable risks for a longer period of time than necessary.
Oversight of Federally Regulated Pipelines
The CESD audit uncovered some significant issues with the National Energy Board (the “NEB”)’s oversight of federally regulated pipelines. In particular, the CESD audit found that the NEB:
- does not always adequately track whether companies satisfy pipeline approval conditions,
- has gaps in its follow-up on company non-compliance with regulatory compliance,
- has a lack of transparency with respect to pipeline approval conditions (although public access to information about companies’ compliance with regulatory requirements has improved),
- needs to improve its emergency preparedness, and
- has human resource capacity challenges.
As stated in the Report (Report 2, page 24):
…the Board needs to do more to effectively adapt and evolve to keep pace with pipeline project proposals, the corresponding public interest and expectations, and recent regulatory changes …
… the Board did not adequately track company implementation of pipeline approval conditions, or consistently follow up on deficiencies in company compliance with regulatory requirements.
As indicated by the CESD, these issues are significant because effective oversight of whether a company meets approval conditions and regulatory requirements are important to reduce the risk of non-compliance and to protect the safety of Canadians and the environment. Further, public access to information is essential to transparency and accountability, and to building public confidence in the NEB. The CESD also notes that emergency preparedness is important because pipeline incidents can lead to significant environmental damage and potential harm to humans.
Departmental Progress in Implementing Sustainable Development Strategies
The CESD audit considered the progress of four federal departments – Agriculture and Agri-Food Canada, Canada Revenue Agency, Canadian Heritage and Department of Fisheries and Oceans – in implementing sustainable development strategies. In particular, the CESD audit looked at the application of the Cabinet Directive which requires environmental assessment of proposed policies, plans, or programs when presented to Ministers. In other words, a department must advise its Minister of potential environmental effects for proposed policies, plans, or programs that are submitted.
The CESD found that none of the departments made satisfactory progress in meeting their commitments to strengthen strategic environmental assessment process. There was inadequate application of the Cabinet Directive and inadequate reporting on extent and results of strategic environmental assessment practices.
An environmental petition process has been established under the federal Auditor General Act. The environmental petitions process allows any Canadian resident (either individually or on behalf of an organization) to bring environmental concerns to the attention of the federal government. An environmental petition is submitted to the Office of the Auditor General who forwards the petition to the appropriate Ministry. The Minister is required to respond to an environmental petition within 120 days of its receipt.
Within the audit period covered by the Report, 15 environmental petitions were submitted. The main themes of the petitions reviewed were governmental commitment to implementing its policies and governmental transparency. The CESD audit found that most responses were timely, complete and relevant. As stated by the CESD (Report 4, page 11), the environmental petitions process “continues to provide Canadians with an opportunity to directly request information and answers from federal ministers and ask for commitments to action.”
Promised Progress for Pesticides and Pipelines
Given the results of the CESD audit, there are clearly concerns with the federal oversight of pesticides and pipelines in Canada. With respect to pesticides, the Pest Management Regulatory Agency’s response to each of the CESD’s findings and recommendations can be found in the Report. The Agency has indicated that it intends to develop options to eliminate the use of conditional registrations, to put a methodology for cumulative risk assessment in place, and to improve its transparency and public communication.
With respect to pipelines, the NEB’s responses to each of the CESD’s findings and recommendations can be found in the Report. In addition, after release of the report, the federal government put interim principles into place (see the press release) to guide the Government of Canada’s discretionary decision-making processes with respect to pipelines. The federal government’s discretionary decision-making process arises after the NEB has conducted a pipeline hearing and has made recommendations to the federal Cabinet which gives final approval or denial of the pipeline. These interim principles are:
- no project proponent will be asked to return to square one – project reviews will continue under the current legislative framework,
- decisions will be based on science, traditional knowledge and other relevant evidence,
- views of the public and affected communities will be sought and considered,
- meaningful consultation of indigenous people and, where appropriate, impacts rights and interests will be accommodated, and
- direct and upstream greenhouse gas emissions linked to projects under review will be assessed.
While these interim principles do provide some progress on pipeline decision-making, the ELC would like to see legislative changes to directly amend and improve the NEB process. This includes removal of the public participation restrictions and decision timelines that were put into place with the 2012 omnibus bills (see our posts on the omnibus bills here and here). Given the federal government’s statement that these are interim principles, the ELC looks forwards to fulsome consultations wherein the changes made to the NEB process and federal environmental assessment laws are revisited and a path to sustainability is forged.