The road ahead for Canada
The Paris Climate Agreement ensures that 2015 will be remembered as a landmark year for Canadian environmental and energy law. Whether 2015 will also be a turning point is more difficult to say. The agreement is certainly an historic achievement in international diplomacy. However, its effectiveness in changing the trajectory of global greenhouse-gas emissions depends on how it is implemented by national and subnational governments. In this implementation stage, Canada faces some daunting and unique challenges.
There is no dispute that Canada played a constructive role in Paris. Its “big tent” approach, aimed at promoting collaboration with the Premiers, as well as other legislators, mayors and business leaders, paid off. Canada also gained kudos for its hands-on leadership, including its role in a negotiating bloc known as the “High Ambition Coalition” that secured support for the newly affirmed aspiration to limit future global temperature increases to 1.5°C.
Now comes the hard part. Within three months of the deal being gaveled, the Prime Minister and the Premiers are scheduled to reconvene for meetings to hammer out a strategy – nationally and provincially – for implementing the Paris agreement.
The legal nature of the commitments made in the agreement have drawn considerable attention. Unlike Kyoto, the Paris agreement neither sets out hard “top down” reduction targets for each party to meet nor relies on the discretionary “bottom up” model employed in the Copenhagen round. Instead, the Paris approach is a hybrid that requires parties to determine what contribution they will make knowing that their actions will be subject to rigorous and regular scrutiny.
When the feds and provinces reconvene, likely in late February, the buoyant mood of Paris will be more subdued. A growing chorus of experts now say that, to meet the 1.5°C limit, current plans for further fossil fuel development in both Alberta and BC will have to be revisited. This is bad news for Alberta’s new climate strategy unveiled on the eve of the Paris meetings. Ditto for the BC government’s LNG development strategy.
Here is where the Paris storyline links up with some of the other top environmental and energy law stories during the past year. The negotiations and outcome in Paris, for many, offered a welcome respite from the conflict that has dominated public discourse around energy and environmental issues, particularly around new energy development projects. 2015 was the year that many of the conflicts – Trans Mountain, Northern Gateway and Site C – ended up in court.
For Paris to be a turning point, bold changes must be made to our federal and provincial regulatory review processes. A key priority is to enhance the mandate and resources of the Canadian Environmental Assessment Agency. For example, the Agency should lead the environmental review of major new pipelines, currently a job solely entrusted to the National Energy Board. Major changes are also needed to the manner in which environmental assessments are conducted. Remarkably, for example, neither under federal nor provincial law is consideration of climate impacts a mandatory requirement. Moreover, these processes have been hobbled by confusion and uncertainty over their role in discharging the Crown’s constitutional obligations to First Nations.
Fixing these problems in a creative manner that restores trust and social licence in these review processes by no means ensures that Paris will be a turning point in Canada’s fight against climate change. Unless they are fixed, however, we will lose our opportunity to implement the aspirations of Paris.
Professor Chris Tollefson is Executive Director of the UVic Environmental Law Centre (ELC). In 2016, the ELC celebrates twenty years of innovation and leadership in legal education and has just launched a funding campaign to support its clinical program.