Download September 10, 2012 Notes Session B

ECOLOGICAL CONTEXT
FOR, AND BEGINININGS OF
CANADIAN EA LAW
CML 4103
SEPTEMBER 10, 2012
Stephen Hazell
Overview
• Theories of environmental assessment
• The ecological crisis and single vision
• Beginnings of legislated environmental
assessment in Canada
• James Bay Hydro and Mackenzie Gas
Theories of environmental
assessment
• A process for providing decision makers with
relevant information about the likely
environmental implications of a proposed
development project, policy, program or plan
• A planning tool or part of a regulatory
process?
• Information gathering as distinct from
decision making
• Environmental assessment is not
environmental protection, but . . .
Theories of environmental
assessment (cont’d)
• Canadian Environmental Assessment Act
(2012) (CEAA 2012) s. 4
“The purposes of this Act are (a) to protect the components of
the environment that are within the legislative authority of
Parliament from significant adverse environmental effects
caused by a designated project;
(b) to ensure that designated projects that require the exercise
of a power or performance of a duty or function by a federal
authority under any Act of Parliament other than this Act to be
carried out, are considered in a careful and precautionary
manner to avoid significant adverse environmental effects”
Theories of environmental
assessment (cont’d)
• CEAA 2012 s. 4
“(e) to ensure that opportunities are provided for
meaningful public participation during an
environmental assessment . . .
(h) to encourage responsible authorities to take
actions that promote sustainable development in
order to achieve or maintain a healthy environmental
and a healthy economy . . . ”
Environmental Assessment
• Tool to reduce ecological footprints of
Canadians, including carbon footprints
• Looking before we leap
• Long-term vs. short-term perspectives
The Global Ecological Crisis
• Human actions are systematically reducing
the life-supporting capacity of Earth’s
ecosystems even as rising human
populations and consumption are making
heavier demands on those ecosystems
• Ecological footprint analysis (invented by Bill
Rees UBC, conducted by WWF) shows that
1.5 “Earths” needed to support current human
population at current consumption levels
• Earth’s natural capital is being drawn down
Global Warming is Real
• Warming of the climate system is
unequivocal” and is “mainly due to human
activities.” – Intergovernmental Panel on
Climate Change (lPCC) 2007
• Catastrophic consequences are projected if
GHG emissions allowed to continue
unchecked – IPCC 2007
Why are the Atmosphere and
Oceans changing?
The global increases in carbon dioxide
concentration are due primarily to fossil fuel
use and land use change while those of
methane and nitrous oxide are primarily due
to agriculture.” - IPCC 2007
Warmer Temperatures
• Globally, 20 of 21
warmest years ever
recorded have occurred
in the past 25 years.
• Canada’s North
warming even more
rapidly.
Ecosystems Breaking Down
• Permanent Arctic sea ice has declined 7.8%
a decade between 1953 and 2006 and could
disappear altogether by mid-century
• Melting of Greenland and West Antarctic ice
sheets means rising sea levels (more than
current 2 mm/year)
• Destruction of Canadian forests by mountain
pine beetle and more fires
• Ocean acidification threatens diatoms, corals
Global Warming as Security Threat
• Climate change acts as a threat multiplier for
instability in some of the most volatile regions
of the world” - Military Advisory Board to U.S.
Pentagon
• “Projected climate change will add to tensions
even in stable regions of the world.”
• “Conditions in already fragile areas will erode
as food production declines, diseases
increase, clean water becomes increasingly
scarce, and large populations move in search
of resources”
Global Warming as Security Threat
• Climate change acts as a threat multiplier for
instability in some of the most volatile regions
of the world” - Military Advisory Board to U.S.
Pentagon
• “Projected climate change will add to tensions
even in stable regions of the world.”
• “Conditions in already fragile areas will erode
as food production declines, diseases
increase, clean water becomes increasingly
scarce, and large populations move in search
of resources”
How did we get to this crisis?
• Alienation from nature
• Even the most obvious ecological
catastrophes (cod fishery collapse) are
shrugged off
• Only disasters with vivid imagery
(Chernobyl, Bhopal, BP Deepwater
Horizon) capture fleeting attention
• Perceptions of nature indirect and faded
Single Vision and Newtons Sleep
Now I a fourfold vision see,
And a fourfold vision is given to me;
‘Tis fourfold in my supreme delight
And threefold in soft Beulah’s night
And twofold Always, May God us keep
From Single Vision and Newtons Sleep!
- William Blake
How did we get to this crisis?
• Human threat to the biosphere is rooted in a
crisis of values
• Not merely a miscalculation about, say, the
ozone-depleting characteristics of CFCs or
levels of CO2 emissions triggering
catastrophic climate change
• Single vision of “Progress” – drive to create
and recreate human and non-human nature
through technology has abolished idea of
nature as a good in itself apart from
monetary values
Environment as Object
When we go into the Rockies we may
have the sense that gods are there. But if
so, they cannot manifest themselves to us
as ours. They are the gods of another
race, and we cannot know them because
of what we are, and we did. There can be
nothing immemorial for us except the
environment as object”
- George Grant
Environment as Object (Grant)
• Environment as object for scientific
study and exploitation by progressing
technologies
• Not as a spiritual homeland but
aboriginal influences (?)
• Co-penetration of knowing and doing
lead to a reality wherein nothing
belongs to humans as humans except
ability to engineer nature and ourselves
“Faint Intimations of Deprival”
(Grant)
• No longer tuned in to the rhythms of
nature. The roar of the dynamo of
western civilization is too loud
• Faint intimations of deprival is all that
can be discerned
• Environmental assessment as a way to
listen to those faint intimations?
Single Vision to Ecovision
• Humans as part of nature not separate
from it; human activities have limits
• Inter-relationships, diversity, dynamics
• Concepts of carrying capacity,
resilience, and sustainability
• Progress measured by quality, wellbeing, integrity and dignity accorded to
natural, social and economic systems
The Beginnings of Legislated
Environmental Assessment
• Factors
– Rise of environmentalism in North America
– National Environmental Policy Act U.S. (1969)
– Conflicts over James Bay and Mackenzie Gas
Projects led to settlements of aboriginal
claims with legally binding environmental
assessment regimes
– Berger Inquiry demonstrated an EA process
that engaged public and led to good decisions
Environmental Assessment
before James Bay/Mackenzie
• National Environmental Policy Act (U.S.)
(1969)
• Federal policy to screen federal projects
and Federal Environmental Assessment
Review Office launched (1972)
• Cabinet directive broadens policy to apply
to private sector projects (1973)
James Bay Hydro Project
James Bay Hydro Project
• Quebec began developing northern
hydroelectric resources in the north in 1960s
• James Bay Hydroelectric Project (La Grande)
was proposed in April 1971 without
consultation with Cree and Inuit of northern
Quebec
• Quebec Association of Indians won
injunction on November 15, 1973 in Quebec
Superior Court blocking development until
agreement reached
James Bay Hydro Project
• Injunction overturned by Quebec Court of
Appeal seven days later, but not legal
requirement that Quebec negotiate treaty
• Negotiations continued for next year leading
to agreement in principle between Canada,
Quebec, Hydro-Quebec, Cree and Inuit
• James Bay and Northern Quebec Agreement
(signed November 1975) includes EA regime
for new development projects in Cree and
Inuit regions
Mackenzie Valley Pipeline
Mackenzie Valley Pipeline
• Proposed natural gas pipeline from
Beaufort Sea to northern Alberta
along Mackenzie Valley,
connecting to Prudhoe Bay along
Yukon North Slope
• Canada issues Pipeline Guidelines
in 1970, 1972
• Berger Inquiry established by order
in council in 1974, reported in 1977
Mackenzie Valley Pipeline Inquiry
Order in Council – Authorities
f
• Similar to inquiries under Inquiries Act
• Summon witnesses and examine
under oath
• Compel production of documents
• Adopt practices and procedures in his
discretion
• Engage technical advisors, counsel
Mackenzie Valley Pipeline Inquiry
Order in Council – Mandate
“inquire into and report upon the terms
and conditions that should be
imposed in respect of any right-of-way
. . . for the purposes of the proposed
Mackenzie Valley Pipeline having
regard to (a) the social, environmental
and economic impact regionally, of
the construction, operation and
subsequent abandonment of the
proposed pipeline in the Yukon and
Northwest Territories . . .
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Mackenzie Valley Pipeline Inquiry
Key Features
• “(T)his inquiry is not just about a gas
pipeline; it relates to the whole future
of the North”
• Addressed a wide range of issues not
just biophysical impacts
• Held preliminary hearings seeking
input on process and scope
• Travelled to all 35 communities to hear
evidence from residents in own
languages
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Mackenzie Valley Pipeline Inquiry
Key Features
• Held quasi-judicial hearings with
counsel to hear and test evidence
• Established a board of government
technical experts -- Pipeline
Application Assessment Board
• Established independent
Environmental Protection Board
(scientists, engineers)
• Addressed Project’s cumulative effects
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Mackenzie Valley Pipeline Inquiry
Take Home Messages
• Public participation matters
• Local residents have important
knowledge to offer
• Canada must settle aboriginal claims
in northern Canada (Inuvialuit, Dene,
Inuit, Yukon First Nations)
• Balance “Northern Frontier” against
“Northern Homeland”
• Set the stage for federal environmental
assessment processes for decades
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