22 Jun Rio + 20 = 1867? Canada’s interesting math
On the verge of the end of Rio +20 and the passage of the federal budget bill (C-38), I felt it worthwhile to do some math. Rio +20 is intended to move “sustainable development” into 2012 and beyond. Yet, Canada has just referred its sweeping budget bill, which revamps our federal environmental laws, to the Standing Senate Committee on National Finance. The drafters of the Bill, it appears, had Cher’s “If I could turn back time” blaring in the background; to a time when approaches to environmental management and understanding of species habitat requirements were rudimentary at best; to a time when our Constitution was enacted, 1867.
Bill C-38 amends one of the most protective fish habitat protection provisions in the country to a provision requiring proof that a “work, undertaking or activity” results in a “serious harm to a fish” that is part of a commercial, recreational or Aboriginal fishery (or a fish that supports such a fishery). (This provision come into force at a date fixed by Order in Council). The Bill also adds a provision that guides administration of the Fisheries Act with a focus on impacts on specific fisheries. This, in essence, is a throwback to the narrow terms of section 91(12) of the Constitution Act that provides federal jurisdiction over “Sea Coast and Inland Fisheries”.
The approach ignores the relevance of habitat and creates substantive evidentiary issues. Specifically, rather than acknowledging the scientific linkages between protected habitat and fish (under current legislation) the approach requires the Crown to establish (beyond a reasonable doubt) that there is “serious harm to fish” and that “harm” is the direct causal result of a work, undertaking or activity. The provision is tantamount to saying “if the fish aren’t dying, we don’t care”. While “serious harm” includes permanent alteration to habitat this ignores the ongoing requirements of fish for intact habitat. Is this approach reflective of our current knowledge of ecosystems and species habitat requirements? Not quite.
Similarly, the restructured Canadian Environmental Assessment Act seeks to limit federal environmental oversight and assumes that provinces have the capacity and wherewithal to effectively manage environmental matters. (Ignoring for the time being whether federal-provincial delegation and substitution around environmental assessments and decision making regarding “inland fisheries” is even feasible). Again, the Bill appears to be an attempt to simply and erroneously isolate environmental impacts based on a narrow jurisdictional view and reflects a direct rejection of the scope of jurisdiction granted by the Supreme Court of Canada in Friends of the Oldman River Society v. Canada (Minister of Transport).
The RIO + 20 website notes:
Sustainable development emphasizes a holistic, equitable and far-sighted approach to decision-making at all levels. It emphasizes not just strong economic performance but intragenerational and intergenerational equity. It rests on integration and a balanced consideration of social, economic and environmental goals and objectives in both public and private decision-making.
Being “far-sighted” in one instance and joining the 19th century in the other just doesn’t add up. The courts of our land have done the math and have clearly indicated that Parliament has the power to manage and legislate environmental matters in a way that reflects 21st century knowledge.Share this: