19 May Red Tape or Duct Tape?
Red Tape or Duct Tape:
When is the red tape we are cutting
actually duct tape holding it all together?
In our work, the ELC focuses on a number of core environmental principles including sustainability, the precautionary principle, the polluter pays principles, public participation, and science-based decision-making.[1] We rely on these principles to evaluate the regulatory framework in place and make suggestions for law reform. In light of these principles, this blog will take a closer look at the Red Tape Reduction Implementation Acts. These are a series of bills passed by the provincial government and intended, according to the government, “to reduce costs and regulatory burden for businesses, while making it easier for Albertans to access government programs and services.”[2] Over the years, these Bills have made changes to a wide array of statutes from the Forests Act to the Education Act and the Alberta Centennial Medal Act.
An overarching theme of all these bills is the simplification of approval processes. While this may make it quicker and easier for industry or developers to get their projects moving, it may also limit transparency, the ability for public participation and political accountability, and science-based decision making. Thus far, five Bills have received royal assent and a sixth was recently proposed and went through second reading on May 11, 2022.
The provisions outlined in this blog are not an exhaustive list but rather seek to highlight some of the impacts on environmental laws over the years. We will focus on the 2022 Bill but will also provide a summary of changes from the previous three years.
Throughout we will ask again whether the red tape being cut is actually duct tape holding everything together?
Bill 21 (May 2022):
Proposed Changes to the Provincial Parks Act & the Public Lands Act
In May 2022, Bill 21: Red Tape Reduction Statutes Amendment Act, 2022 passed its second reading in the legislature.[3] Bill 21 is not yet law and is still making its way through the legislative process; however, if passed could have significant implications on the management of Alberta’s protected areas and public lands with proposed changes to the Provincial Parks Act and the Public Lands Act.
Bill 21 proposes to amend the Provincial Parks Act with a change to section 12(2)(b) which currently reads “the Minister may, in respect of parks and recreation areas, make regulations controlling domestic or other animals not defined as wildlife under the Wildlife Act”. The proposed change would replace the word ‘controlling’ with ‘respecting’, which may expand the ways that domestic animals and livestock may be located on protected areas.
Similar amendments have also been proposed for both the Provincial Parks Act and the Public Lands Act. For the Provincial Parks Act, Bill 21 proposes to add the following section after the existing section 12.1:[4]
“12.11(1) A regulation under this Act may adopt or incorporate documents that set out standards, directives, practices, codes, guidelines, objectives or other rules of any government, board, agency, association or person, including, without limitation, any standards, directives, practices, codes, guidelines, objectives or other rules set by the Minister under section 12.12, relating to any matter in respect of which a regulation may be made under this Act.
(2) A standard, directive, practice, code, guideline, objective or other rule may be adopted or incorporated under subsection (1)
(a) in whole or in part and with or without modifications, and
(b) as it reads on a specific date or as amended or replaced from time to time.
(3) When a standard, directive, practice, code, guideline, objective or other rule is adopted or incorporated under subsection (1), the Minister shall publish it on a public website of the Government of Alberta.
12.12 The Minister may set standards, directives, practices, codes, guidelines, objectives or other rules relating to any matter in respect of which a regulation may be made under this Act.”
The current section 12.1 states that regulations made under the Act may “be general or particular and may apply in respect of all parks and recreation areas” or to “particular parks and recreation areas.”[5]
A similar amendment is proposed for the Public Lands Act, repealing section 1.1 and replacing it with the following:[6]
“1.1(1) A regulation under this Act may adopt or incorporate documents that set out standards, directives, practices, codes, guidelines, objectives or other rules of any government, board, agency, association or person, including, without limitation, any standards, directives, practices, codes, guidelines, objectives or other rules set by the Minister under section 1.2, relating to any matter in respect of which a regulation may be made under this Act.
(2) A standard, directive, practice, code, guideline, objective or other rule may be adopted or incorporated under subsection (1)
(a) in whole or in part and with or without modifications, and
(b) as it reads on a specific date or as amended or replaced from time to time.
(3) When a standard, directive, practice, code, guideline, objective or other rule is adopted or incorporated under subsection (1), the Minister shall publish it on a public website of the Government of Alberta.
(4) This section applies to any standard, practice, code, guideline, objective or other rule that has been adopted or incorporated into a regulation before or after this section comes into force.”
The current section 1.1. allows for the incorporation by reference of standards, codes, guidelines, or directives, without reference to groups external to the government.[7] Bill 21 also adds section 1.2 to the Public Lands Act which enables the Minister to “set standards, directives, practices, codes, guidelines, objectives or other rules relating to any matter in respect of which a regulation may be made under this Act.”[8]
Implications of Bill 21
The changes proposed for both the Provincial Parks Act and the Public Lands Act would seemingly enable the adoption of any plans by any user group as a regulation by reference and as the Canadian Parks and Wilderness Society points out, this change could “potentially result in the accelerated adoption of poorly written or under-reviewed policies” and “reduce government accountability and transparency in the name of convenience and expediency.”[9]One example may be that park managers may be able to make decisions with regard to recreation on protected land without public oversight or fulsome consideration of the environmental impacts of a decision. This would neglect to engage two of the principles of environmental law highlighted above – science based decision making and public participation.
There are instances where incorporation by reference allows for flexibility, particularly in areas that may need to be able to adjust to changing circumstances, such as increased knowledge regarding risks and impacts on species and ecosystems; but this can come at a cost. In fact, section 1.1 of the current Public Lands Act already allows incorporation by reference but does not open this up to be produced by any user group. In broadening this section, one must ask whether the “person” creating the document to be incorporated by reference has a vested interest, a potential conflict with the public interest aspects of parks and public land management, or whether they have the requisite qualifications to fully understand and respond to parks and public land challenges. Further, there is some degree of political accountability (i.e., elections) that is maintained when regulations are put forward by our elected representatives. Citizens have the opportunity to hold their government accountable for decisions and lawmaking that they do not agree with in a more fulsome way than they do for other organizations or individuals.
Additionally, the incorporation of documents by reference into a regulation may, in some cases frustrate the purpose of the regulation. This can occur where a code of practice, standard or other document that is intended to be prescriptive and enforceable is not adequately vetted and reviewed for drafting clarity.
Similarly, there is less transparency available when regulations are adopted by reference rather than going through the Regulations Act procedure. Specifically, section 1(2)(d) of the Regulations Act states that “a document adopted or incorporated by reference in a regulation” is not a regulation as defined in the Interpretation Act. One example of this change is in the proposed section 12.11(3) of the Provincial Parks Act. This section states that if a standard, directive, practice, code, guideline, objective or other rule is adopted or incorporated as a regulation, it need only be published on a public website of the Government of Alberta.[10] This bypasses the Regulations Act which requires new regulations to be filed with the registrar and then published in The Alberta Gazette.[11] These steps may not impact the quality of the regulation itself but they certainly make it less transparent and if it is not published in The Alberta Gazette, past versions may be lost.
This highlights a lack of transparency that runs throughout these changes. When documents do not follow the standard procedure of registration and publication in a Gazette, they may be more difficult to track and to keep abreast of changes. Further, if a regulation is later repealed, where will the record remain?
Overall, despite a promise to reduce red tape, these changes may result in a patchwork approach and in different rules in different locations. Consistency is not only important for certainty but also for the environment which does not abide by legal silos or jurisdiction.
A Summary of Past Changes
2019
The first iteration of the Red Tape Reduction Implementation Act from 2019 simplified the approval process for a Forest Management Agreement.[12] Specifically, it changed the approval requirements for a Forest Management Agreement from an Order in Council to a Ministerial Order.[13] To do so, the phrase “with the approval of the Lieutenant Governor in Council” was struck from section 16 of the Forests Act.[14] This change enables the Minister to enter into a Forest Management Agreement without any input from Cabinet. A narrower approval process limits already narrow public participation and begs the question of whether a single Minister should have the authority to make long-term agreements with public resources. Cabinet approval does not guarantee fulsome public participation but does allow for some further consideration.
The Hydro and Electric Energy Act was also amended in 2019 with a simplification of the consent procedure required for hydro development in sections 9-13 of the Act.[15] Changes to section 9 of the Hydro and Electric Energy Act removed the provisions that previously set out the Commission’s investigative process triggered upon receipt of an application for a hydro development and prior to approval of the same.[16] Originally, section 9(3) read: “when the Commission receives an application for an order approving the construction of a hydro development, the Commission shall make any investigation, make any inquiry and hold any hearings it considers necessary or desirable in connection with the application.”[17] The provision now reads “[n]o person shall construct or operate a hydro development unless the Commission, by order, has approved the construction and operation of the hydro development.”[18] A much simpler process.
Additionally, the previous section 9(5) set out that the if the Commission approves a development it shall report on it to the Lieutenant Governor in Council.[19] From there, the Executive Council shall cause a Bill to be prepared by the Legislature and the Bill shall then be introduced in the Legislative Assembly.[20] Each of these sections has since been repealed. This change again limits transparency and public participation – initiated by debate in the legislature.
Section 10 of the Hydro and Electric Energy Act was also repealed.[21] This provision previously required any person to receive approval from the Lieutenant Governor in Council prior to operating a hydro development and enabled the Lieutenant Governor in Council to set any terms and conditions deemed necessary or desirable to the approval.[22]
2020
The 2020 version of the Red Tape Reduction Implementation Act made changes to the Oil Sands Conservation Act including the removal of certain requirements for the approval of oil sands projects and processing facilities.[23]Specifically, it removed the requirement for Cabinet approval.[24] Instead, the Alberta Energy Regulator (“AER”) can give approval and “Cabinet will have no role to play in authorizing new oil sands projects or processing facilities.”[25]
In his assessment of these changes, Professor Nigel Bankes pointed out that before this amendment, Cabinet approval often resulted in delays and project proponents will likely welcome a move to limit the potential for these delays.[26] However, Professor Bankes also argued that these changes meant that “Cabinet would no longer have a statutory role to play in discharging the Crown’s consultation and accommodation obligations and its honour of the Crown obligations” to Indigenous peoples.[27] He highlights that constitutional duties to uphold consultation with Indigenous peoples cannot, and should not, be considered ‘red tape’.[28]
A similar change was made to the Mines and Minerals Act when the Bill removed the requirement for an authorization by the Lieutenant Governor in Council prior to the Minister entering into contracts or agreements under the Act.[29]This includes agreements for the recovery of a mineral, development of mines or quarries, storage or sequestration of substances, and more.[30] Again, this allows the Minister to make unilateral decisions with regard to major resource agreements.
The 2020 Bill also made changes to the Public Lands Act, allowing a corporation to hold a grazing lease so long as the majority of its shares are owned by Canadian citizens or permanent residents.[31] This expanded ownership from the previous section which required the majority of shareholders be Alberta residents.[32] Critics of this change argued that this may allow outside investors to gain control of public lands and leases that more properly belong to Albertans.[33] On the other hand, the Alberta Grazing Leaseholders Association was supportive of the decision and Alberta is not the only province to allow this type of lease agreement.[34]
Other Changes
The Red Tape Reduction Implementation Act in 2020 also dissolved Energy Efficiency Alberta (“EEA”).[35] This closure had the effect of terminating energy efficiency programs and initiatives despite their wide success. In fact, the Pembina Institute found that these programs were so widespread across Alberta that “[h]omes or businesses in every single postal code area in the province have used EEA programs”.[36]
Further, not only do renewable energy and energy efficiency programs create jobs but they are also essential if we are to meet our climate change obligations and work towards a just transition – we take a closer look at how much work is needed in this regard in our fall 2021 report Here Comes the Sun: Solar Law in Alberta. EEA was an agent of change and without it, Alberta is the only province in Canada without an agency of this kind.[37]
The Government argues that making these changes eliminates the need “to comply with restrictive or onerous requirements where such requirements are not necessary.”[38] However, over the years, there has been little to no public consultation on these changes and this has continued into 2022. Further, as was debated in the Legislature, when numerous wide-ranging amendments are put forward in an omnibus bill, other MLAs are unable to debate and vote on each proposed amendment and instead are required to accept or reject them as a whole.[39]
Sometimes regulations need to be onerous, or appropriately onerous, to ensure that environmental, safety, and property related risks are avoided. Sometimes we may mistake duct tape for red tape.
[1] Environmental Law Centre, “Core Environmental Principles” online: https://elc.ab.ca/our-focus/core-environmental-principles-2/.
[2] United Conservatives, “Getting Alberta Back to Work” at 12 online: https://www.unitedconservative.ca/wp-content/uploads/2020/07/Alberta-Strong-and-Free-Platform-1.pdf; Government of Alberta, “Implementing red tape reduction” online: https://www.alberta.ca/implementing-red-tape-reduction.aspx#jumplinks-1.
[3] Bill 21, Red Tape Reduction Statutes Amendment Act, 2022, 3rd Sess, 30th Leg (first reading 25 Apr 2022) [Bill 21].
[4] Ibid s 11(3).
[5] Provincial Parks Act, RSA 2000, c P-35, s 12.1.
[6] Bill 21, supra note 3, s 12(2).
[7] Public Lands Act, RSA 2000, c P-40, s 1.1.
[8] Bill 21, supra note 3, s 12(2).
[9] CPAWS Northern Alberta Chapter, “Changes to Parks and Public Land Legislation will Erode Important Protections” (29 Apr 2022) online: https://cpawsnab.org/changes-to-parks-and-public-land-legislation/.
[10] Bill 21, supra note 3, ss 11(3) & 12(2).
[11] Regulations Act, RSA 2000, c R-14, ss 2 & 3.
[12] Bill 25, Red Tape Reduction Implementation Act, 2019, 1st Sess, 30th Leg, 2019 (assented to 5 Dec 2019).
[13] Ibid s 3.
[14] Ibid s 3.
[15] Ibid s 8.
[16] Hydro and Electric Energy Act, RSA 2000, c H-16, s 9.
[17] Ibid s 9(3) [repealed].
[18] Ibid s 9.
[19] Ibid s 9(5) [repealed].
[20] Ibid ss 9(5)-(7) [repealed].
[21] Ibid s 10 [repealed].
[22] Ibid s 10(2) [repealed].
[23] Bill 22, Red Tape Reduction Implementation Act, 2020, 2nd Sess, 30th Leg, 2020 (assented to 23 July 2020) [Bill 22].
[24] Ibid s 12.
[25] Nigel Bankes, “Oil Sands Approvals and Bill 22, the Red Tape Reduction Implementation Act, 2020” (15 June 2020) ABlawg online: https://ablawg.ca/2020/06/15/oil-sands-approvals-and-bill-22-the-red-tape-reduction-implementation-act-2020/.
[26] Ibid.
[27] Ibid.
[28] Ibid.
[29] Bill 22, supra note 23, s 10.
[30] Mines and Minerals Act, RSA 2000, c M-17, s 9.
[31] Bill 22 supra note 23, s 14(3).
[32] Ibid.
[33] Michelle Bellefontaine, “New bill cuts energy efficiency agency, ends cabinet approval of oilsands projects” (11 Jun 2020) CBC News online: https://www.cbc.ca/news/canada/edmonton/alberta-bill-22-red-tape-energy-efficiency-1.5608446 [Michelle Bellefontaine].
[34] Collin Gallant, “Alberta Grazing Leaseholders Association applauds move to drop cross-province trade restrictions” (25 Sep 2019) Medicine Hat News online: www.medicinehatnews.com/news/local-news/2019/09/25/alberta-grazing-leaseholders-association-applauds-move-to-drop-cross-province-trade-restrictions/.
[35] Bill 22 supra note 23, s 5.
[36] Chris Severson-Baker, “Axing Energy Efficiency Alberta costs homeowners, risk jobs” Op-Ed (16 June 2020) Pembina Institute online: https://www.pembina.org/op-ed/axing-energy-efficiency-alberta-costs-homeowners-risks-jobs.
[37] Michelle Bellefontaine, supra note 33.
[38] Government of Alberta, “Implementing red tape reduction” online: https://www.alberta.ca/implementing-red-tape-reduction.aspx#bill-48.
[39] Alberta, Legislative Assembly, Alberta Hansard 30th Leg, 3rd Sess, Day 28 (3 May 2022) at 1047 (Nathan M. Cooper).
ABOUT THE ENVIRONMENTAL LAW CENTRE:
The Environmental Law Centre (ELC) has been seeking strong and effective environmental laws since it was founded in 1982. The ELC is dedicated to providing credible, comprehensive and objective legal information regarding natural resources, energy and environmental law, policy and regulation in Alberta. The ELC’s mission is to advocate for laws that will sustain ecosystems and ensure a healthy environment and to engage citizens in the laws’ creation and enforcement. Our vision is a society where our laws secure an environment that sustains current and future generations and supports ecosystem health.
As a charity, the Environmental Law Centre depends on your financial support. Help us to continue to educate and champion for strong environmental laws, through tools such as our blog and all of our other resources, so that all Albertans can enjoy a healthy environment. Your support makes a difference.
Donate online today
Share this:
No Comments