A Liberal majority in the House of Commons - implications for environmental policy

On October 19, 2015, Canadians voted in their highest numbers in over 20 years,¹ and elected Liberal Party leader Justin Trudeau as prime minister of Canada. Mr. Trudeau will lead a majority government in the House of Commons for the next four years; this majority will make it easier for his newly formed government to achieve their "Real Change" platform. The Liberals campaigned with an ambitious agenda that promised the reform of major environmental laws and policies, and a fundamental shift in the federal government's relationship with Aboriginal peoples.

Mr. Trudeau's major environmental promises include:

• a review of Canada's federal environmental assessment process;
• recasting the relationship with Canada's Aboriginal peoples;
• providing leadership on climate change;
• increasing protection for freshwater and our oceans;
• investing in Canada's National Parks; and
• investing in clean technology producers.

Environmental Assessment

Mr. Trudeau has promised to immediately review the Canadian Environmental Assessment Act, 2012, ("CEAA") which came into force only three years ago, and the environmental assessment process.

The Liberals have pledged that the review of CEAA will be undertaken in partnership with Aboriginal peoples. Mr. Trudeau appears to take seriously the constitutional duty that the Crown has to consult and accommodate Aboriginal peoples, and even obtain consent in some instances. This is a significant shift from an approach which, at times, appeared to allow Aboriginal consultation obligations to be minimized to the point of simply checking off boxes during an environmental assessment ("EA"). The Liberals are promising to carve out ample space in the EA process for Indigenous legal traditions and perspectives on environmental stewardship.²

Aboriginal groups have been very vocal on the deficiencies in the current EA process. For instance, the lack of a consent requirement for some or all project that impact Aboriginal communities (especially given the Liberal promise to implement the United Nations Declaration on the Rights of Indigenous Peoples, discussed further below). Inadequate funding to meaningfully participate is another issue, as is the perceived inappropriate delegation of consultation to EA project proponents. Some Aboriginal communities have advocated for a parallel, Crown-led consultation process. Further, some groups would like to use the EA process to prove claims of Aboriginal rights and title. All of these issues are currently the subject of litigation,³ and it remains to be seen how the Liberal government will deal with them.

Other proposed environmental reforms and polices will have an impact on future EAs. The Liberal platform proposes to impose a moratorium on crude oil tanker traffic on British Columbia's North Coast, which includes the Dixon Entrance, Hectate Strait, and Queen Charlotte Sound.⁴ In addition, the Liberals have promised to re-introduce protections that were repealed under the Harper government in relation to fisheries, fresh water, and oceans as well as implementing more modern safeguards. This includes the meeting numeric, international Aichi Biodiversity Targets to protect freshwater, marine and coastal habitat.⁵ This is consistent with Mr. Trudeau's statements during his campaign that, if elected, he would not allow the proposed Northern Gateway Pipeline project to proceed. Northern Gateway would transport crude oil from the Alberta oil sands to a tanker terminal on the North Coast of British Columbia, an area covered by his promised moratorium. However, he has not expressed strong opposition to all pipelines, such as the proposed expansion of Trans Mountain, also in British Columbia but not involving the North Coast, and Energy East, which will transport bitumen to the east coast.⁶ Even if he does not oppose these projects, they will be impacted by Mr. Trudeau's promise to reform EA, and in particular, reform the National Energy Board to give its process greater credibility.⁷

The Liberals have also stated they will limit development within an expanded National Parks system,⁸ as well as implement more vigorous standards for the protection of species-at-risk.

Aboriginal Relations⁹

Mr. Trudeau has pledged to implement the United Nations Declaration on the Rights of Indigenous Peoples ("UNDRIP") an international agreement that Canada has long avoided signing. The UNDRIP is a powerfully worded document, and includes the right of Indigenous peoples to "free, prior and informed consent" where traditionally held lands could be impacted by projects, as well as redress for lands that have been used or damaged without that consent. It also provides that Indigenous peoples have the right to "the conservation and protection of the environment".¹⁰ This is closely tied into the Liberals' plan to reform CEAA in a way that ensures the process, respects the rights of Indigenous communities impacted by proposed projects.¹¹

Mr. Trudeau has also pledged to enact the recommendations of the Truth and Reconciliation Commission, which includes actions such as the establishment of a National Council for Reconciliation that would, among other things, monitor the relationship between Parliament and Aboriginal people to ensure government accountability.¹²

Regarding Métis people, the Liberals have promised to work through negotiation to establish a federal claims process to recognize Métis self-government and resolve all outstanding claims, as well as developing a Métis Economic Development Strategy.¹³

Mr. Trudeau has essentially pledged to completely reshape the relationship between the federal government and Aboriginal peoples. The UNDRIP in particular will be a powerful tool that will shape nation-to-nation discussions as well as future court actions regarding the duty to consult and Aboriginal rights and title. The broadly worded Declaration will no doubt be the topic of much future discussion and interpretation by government and by the courts. Mr. Trudeau may use UNDRIP and a new CEAA process, formed through consultation, as a foundation for building a new, less litigious relationship with Canada's Aboriginal peoples.

Climate Change

Mr. Trudeau has promised to "provide national leadership" and work with the provinces to take action on climate change. In the short term, he plans to attend the Conference of the Parties in Paris this December, and within 90 days establish a cross-country framework on climate change. A specific action item is the creation of a Low Carbon Economy Trust, which would provide funding to projects that materially reduce emissions. The Liberals have pledged 2 billion dollars in funds to this Trust.

This approach recognizes that the provinces hold significant power to shape climate initiatives. While the Liberals have promised a Pan-Canadian approach and a Canadian Energy Strategy, the new government has not promised that all measures adopted will be consistent across Canada. However, the federal government does have the jurisdiction to implement certain changes related to emissions. For instance, in the medium-term, Mr. Trudeau has promised to phase out subsidies for the fossil fuel industry, in keeping with G20 commitments. He will also work with the USA and Mexico to develop a North American clean energy agreement.¹⁴

The Liberals are also focused on creating more jobs, specifically in the clean technology sector. The Liberals plan to invest 100 million additional dollars in clean technology producers, and 200 million more each year to support the use of these technologies in Canada's natural resource industries. Another aspect of their approach is to establish the Canadian Infrastructure Bank, which will provide low cost financing to new projects, with a specific interest in supporting renewable energy through the issuance of Green Bonds. These financing instruments are intended to "level the playing field" with fossil fuel energy sources.¹⁵

The Liberals, in short, have promised to kick-start a green economy, one with more jobs and funding for clean technology, and greater integration of these techs into Canadian industry. The federal government has promised to "lead by example" and increase the government's use of these technologies such as through expanding the federal fleet of electric vehicles.¹⁶

Conclusion

The Liberals have put forward an ambitious environmental plan for Canada. In particular, CEAA reform is very entwined with their promises to build better, more respectful relationships with Canada's Aboriginal people. On the whole, however, it seems that the immediate priority of the Liberals is climate change and CEAA. A consistent theme of the Liberal platform is greater environmental protection, with pledges not only to undo the weakening of environment legislation under the Harper government, but to go further with new, modernized measures. With a majority in the House of Commons, Mr. Trudeau is well placed to make good on his election promises to rewrite several of Canada's key environmental statutes and shift Canada's priorities towards building a greener economy and energy strategy.

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