I hope I've got this wrong, but it looks like the Summerside trial of Western PEI farmer Warren Ellis won't hear a word about the hundreds of dead fish caused by pesticide washing into into three Western PEI rivers last July. The province charged two farmers for having inadequate buffer zones between potato fields and waterways. Avard Smallman has already pleaded guilty and paid the minimum $3000 fine. Warren Ellis is facing four charges under PEI's Environmental Protect Act, all related to buffer zone violations. Presumably the evidence will include field measurements and photographs, and could have been laid whether there were dead fish or not. The dead fish don't matter.
Warren Ellis' case has been delayed several times. It's the request for delays by PEI Crown Prosecutor John Diamond that are most telling. He's been waiting for Environment Canada to also lay charges, but despite some newspaper reports that it has, Environment Canada will simply be watching from the sidelines when this case goes to trial, and that's wrong.
It was a UPEI toxicologist who summed up the frustration of many when it comes to prosecutions for fish kills on PEI. Back in July Mike van den Heuvel said "There's never been any serious prosecution of these events. Oilsands companies killed 1,600 ducks and had to pay $3 million, [but] nobody has ever had to pay anything for the millions of fish that have died on P.E.I."
The fines for provincial buffer zone violations range from $3000 to $10,000. Environment Canada has a much bigger stick. It's authority comes from the Fisheries Act:
"Subsection 36(3) prohibits the deposit of deleterious substances. Environment Canada is responsible for administering this subsection. Unlike Subsection 35(2), there is no provision to authorize the deposit of deleterious substances except by Regulation or an Order in Council. A deleterious substance is defined by the Fisheries Act as any substance that, if added to water, makes the water deleterious to fish or fish habitat or any water containing a substance in such quantity or concentration or has been changed by heat or other means, that if added to water makes that water deleterious to fish or fish habitat."
A pesticide that kills fish would likely fit the definition. A fine under the Fisheries Act can run up to a half a million dollars.
Warren Ellis will get his day in court and is innocent until proven guilty, and that's as it should be. It's the lack of any credible deterrence or public confidence in the ability of government to investigate and prosecute these kind of incidents that's most at risk.
We don't know why Environment Canada isn't laying charges because it refuses to talk to the media. Last summer I tried to find out if Environment Canada would act and was told the legal challenge is this: Yes there are dead fish, yes pesticides can be shown to be the cause of the deaths, and yes Warren Ellis and Avard Smallman were found to not have the proper buffer zones, but proving these specific farmers were the cause of the fish deaths beyond reasonable doubt is much more difficult, one person said impossible. That may be what distinguishes cases like this from the tailings pond deaths in northern Alberta where one company is clearly the cause. If that is the case then Environment Canada should state that publicly, and politicians can determine if it's necessary to change the law. Even better in my opinion would be to lay the charges and let a judge decide the Federal Crown can't prove the case, then it will be clear that the regulations need attention. Going through a court case in Summerside where the dead fish are incidental/unimportant/don't matter to the proceedings seems like the worst outcome of all, and an insult to common sense.
And according to the Globe and Mail, environmental regulation of any kind is going through a major transformation in Canada, and ducks and fish won't be better off.
http://www.theglobeandmail.com/news/politics/ottawa-to-unveil-sweeping-changes-to-environmental-oversight/article2404607/
Harper government to shrink environmental-assessment process
by SHAWN McCARTHY AND JOHN IBBITSON
The Harper government is about to dramatically shrink the federal oversight of proposed natural resource developments, handing over environmental reviews for many projects to the provinces and cutting back the number of smaller construction projects that are subject to any environmental assessment.
Natural Resources Minister Joe Oliver is expected to unveil a sweeping legislative plan on Tuesday that will focus Ottawa’s role in environmental assessments to projects it deems to be of national significance.
Since taking office as a rookie minister last summer, Mr. Oliver has promised to streamline and overhaul Ottawa’s environmental assessment process, which the government insists is too cumbersome, duplicative and subject to tactical delaying efforts by environmental groups who are determined to block development.
More broadly, the move reflects Prime Minister Stephen Harper’s vision of proper federal and provincial roles, in which Ottawa is far less active in areas of provincial jurisdiction like natural resource management, environmental protection and health policy.
Mr. Oliver’s announcement in Toronto puts some flesh on the promise contained in the March 30 budget that Ottawa would streamline the environmental assessment process to provide more timely reviews of major resource projects. Critics have already warned that the government is prepared to rubber-stamp resource developments regardless of their environmental impacts even as it works to demonize opponents as “radical” and “foreign funded” groups that are working to undermine the national economic interest.
Under the proposed legislation, Ottawa would concentrate its effort on environmental assessments of “major economic projects,” according to background information obtained by The Globe and Mail. Provinces will set their own level of oversight for smaller projects.
It was unclear how federal and provincial governments will determine which projects require federal assessment and which require only provincial consideration, though those that cross provincial boundaries will remain federal matters.
Ottawa will also impose strict deadlines on the review of projects, ranging up to two years from the time a proponent files the project plan.
And the government has said it will apply those timelines in the case of the proposed Northern Gateway pipeline, which would carry oil-sands bitumen to the B.C. coast for export by super-tanker to Asia. The highly controversial project is now being reviewed by a joint panel of the National Energy Board and Canadian Environmental Assessment Agency (CEAA), a process that could take three years or more.
Mr. Oliver has pointed to the Mackenzie Valley gas pipeline project as an example in which the environmental and social assessment became bogged down and lasted so long that the pipeline was no longer commercially viable by the time it was approved.
He also complained that a recently approved oil-sands mine planned by France’s Total SA took six years to work its way through the regulatory maze, though the company itself was responsible for much of that delay.
It remains unclear how Ottawa intends to ensure it meets its constitutional mandate to fully consult with first nations and to accommodate their concerns about resources projects. British Columbia Indian bands have vowed a court challenge to the anticipated federal approval of the Gateway pipeline project, arguing the current hearings are a sham because the Harper government is determined to proceed.
In the budget, the government said it would “enhance consultations” with aboriginal peoples.
Ottawa also plans to centralize all environmental oversight in three agencies, rather than the 40 departments and agencies that can now have a say before any major project is approved.
The Harper government will also impose new financial penalties, ranging from $100,000 to $400,000, that will be imposed on individuals or businesses that violate environmental regulations. Currently the federal government lacks the power to levy financial penalties under environmental law short of laying criminal charges.
Mr. Oliver will also announce a 50-per-cent increase to pipeline inspections, “to safeguard the environment and identify pipeline issues before they occur,” as background information stated.
Mr. Harper has been aggressively selling Canada on the international stage as a natural resources superpower, with not just booming oil sands but also natural gas, electricity and mineral wealth to be developed and exported.
The Conservatives have targeted natural-resource exports as a major priority. According to statistics provided by the government, the sector employs more than 760,000 workers across the country, with more than 500 new projects cumulatively valued at $500-billion planned over the next 10 years.
Environmental Assessment Process:
What Exists:
The Canadian Environmental Assessment Agency (CEAA) reviews all non-energy projects that could have a substantial impact on the environment, including fish habitat and endangered species. The National Energy Board handles reviews of oil and gas projects and pipelines, while the Canadian Nuclear Safety Commission does the assessments of nuclear-related facilities.
In the case of major projects like the Northern Gateway pipeline that would carry oil-sands bitumen to the B.C. coast for export by super-tanker, the NEB and the CEAA conduct a joint review, including a panel hearing that includes environmental, safety and social impact.
Dozens of federal departments and agencies participate in the major reviews, including Fisheries and Oceans, Transport Canada, and Aboriginal Affairs and Northern Development.
After cabinet approves a positive assessment from the CEAA or National Energy Board, companies often have to receive permits from other departments, notably Fisheries and Oceans, as they seek to mitigate projects’ effects.
Industry Complaints/Environmentalist Fears:
The mining and energy industries say the reviews take too long, are carried out even when environmental impact is negligible, and that the process can bog down even after approvals are granted.
They also complain the federal and provincial governments often have duplicative review processes, which can add to delays and uncertainty.
In hearings last year, the CEAA acknowledged that 94 per cent of its screenings were for small projects – expansion of a light-craft harbour, for example – that have minor environmental impact. A report from the Conservative majority on the environment committee recommended the government create a list of types of projects to be reviewed, or have the decision left to ministerial discretion.
Environmentalists say Ottawa has been weakening its environmental assessment process by, among other things, putting pro-industry agencies like the National Energy Board in charge of oil and gas.
They fear the government will gut what’s left of the review process by reducing if not eliminating input from government scientists, and by handing the oversight to provinces.
What’s To Come:
The federal government will no longer do environmental assessments for smaller projects, but only for those of national significance, although it remains unclear how that standard will be determined.
Ottawa will turn over to provinces the review of major resource projects when it deems that the specific province has the wherewithal to assess a project.
Where the federal government continues to do reviews, responsibility will fall to three central agencies; officials at Fisheries and Oceans or Transport Canada will not be able to intervene.
Agencies will have to meet fixed time lines when reviewing major resource projects.
The government will introduce new penalties for those who contravene federal environmental regulations, ranging up to $400,000.
Shawn McCarthy
Recent developments:
The Harper Conservatives were shifting the way the government approaches environmental issues even before Tuesday’s announcement. Three recent developments illustrate that shift:
The end of the National Round Table
The National Round Table on the Environment and the Economy will write its last reports over the next year, on topics including business resilience to climate change. But as of March 31, 2013, the NRTEE and its $5-million in annual funding will disappear.
The group has a mandate from Parliament to engage Canadians in sustainable development. Critics say it’s being shutdown because the government doesn’t like its advice. But the government says times have changed since the NRTEE was created in 1988 and similar information is available online from universities and other groups.
Changing the Fisheries Act
A former federal scientist obtained documents last month that showed the government has plans to change the Canada Fisheries Act. The government may remove the requirement to protect fish habitats and fish that are not of “economic, cultural or ecological value.”
The changes would allow faster approval of huge projects including the proposed Northern Gateway pipeline. A letter from more than 600 scientists from across the country urged the Prime Minister not to go ahead with the changes, saying it “would be a most unwise action, which would jeopardize many important fish stocks and the lakes, estuaries and rivers that support them.”
Funding fight for environmental NGOs
The Conservatives have labelled environmental charities, including Tides Canada, as radicals that have hijacked the review process for the Northern Gateway. International funding that the groups receive has been scrutinized by the government, with some Conservatives questioning why U.S. money was used to oppose the oil sands.
National Resources Minister Joe Oliver said the groups used foreign funding to “undermine Canada’s national economic interest.” But the environmental groups say the portrayal of funding as mostly foreign is incorrect and an attempt to silence their views. A senate inquiry is examining the foreign funding of charities.
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