by Elizabeth May
When I practiced environmental law, I used to joke that the challenge in Canada was that we didn’t have environmental laws to enforce. When Richard Nixon was US President, he brought in a slew of strong laws, with scope for enforcement by the courts. The National Environmental Protection Act (which mandated advance environmental reviews), the Clean Air Act, Clean Water Act and Endangered Species Act were all brought in under Nixon. The US Endangered Species Act allowed a judge to review the habitat requirements for the
spotted owl and decide the US Forest service had failed to provide adequate habitat protection and ordered a halt to logging.
Meanwhile in Canada, we have had, since the times of Sir John A Macdonald, the Navigable Waters Protection Act and the Fisheries Act. Modern era laws were brought in by Mulroney – the Canadian Environmental Protection Act, the Canadian Environmental Assessment Act, and then under Chretien, the Species at Risk Act. The different culture in the judiciary in Canada meant that we would never have had a judge do what the US courts did in the spotted owl case. Our courts are more likely to look at the laws and see if the right steps were taken by the minister – not whether the right decision was reached.
I was part of the effort (from within government) to bring forward the Canadian Environmental Assessment Act and the Canadian Environmental Protection Act, and I was part of the Non Governmental Organization campaign to get the Species at Risk Act. (We started with the slogan, “There otter be a law!”) As an MP, I have fought hard to protect our laws.
So here we are in 2013, with the recent efforts of Stephen Harper leaving a heap of wreckage where our weak environmental laws used to be. Since forming a majority government in the 2011 election, he has brought a wrecking ball down on the Fisheries Act (gutting habitat protection provisions in Bill C 38, spring 2012 omnibus budget bill), repealed the Canadian Environmental Assessment Act, replacing it with a vague and useless replacement (also in C 38), and removed over 95% of the waterways in the Navigable Waters Protection Act (NWPA) (in C 65, the fall 2012 omnibus budget bill). Only the Canadian Environmental Protection Act (dealing with toxic chemicals) and the Species at Risk Act (SARA) remain untouched. Meanwhile the Commissioner for Environment has found that SARA’s required action plans for species recovery are back-logged and underfunded.
So, what can an activist think about the importance of laws? It matters whether we have legally-required permits for bridges or obstructions over waterways (as we used to under the NWPA) and whether those projects have to be reviewed by a proper environmental assessment (as we used to under CEAA). It matters when, in C 38, the National Energy Board Act was changed to say that pipelines, anywhere and everywhere, were not impacted by the NWPA (in other words, even before C 65, the NWPA could not slow down a pipeline. By the way, SARA no longer applies to pipelines either.)
What happens in Parliaments and legislatures matters to species, and waters, and the fish in those waters. So too, it should matter to citizens.
Once the national nightmare of the Harper administration passes into history, we will have an enormous amount of work to do to re-build our environmental laws to be even near the bottom rung of environmental performance of the rest of the industrialized world. In the meantime, the role of the citizen-activist is to keep the public focus on the damage that is being done with the false assumption that the environment and economy are in opposition to each other. Harper’s “tough on nature” policies are not just a disaster for the environment; they are also bad economic policy. Canada’s global reputation is being trashed. The task of rebuilding will not be easy. Let it begin soon!
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Elizabeth May is an environmentalist, writer, activist, lawyer, leader of the Green Party of Canada and Member of Parliament for Saanich-Gulf Islands, BC.
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