The recent turmoil surrounding a proposal of Sio Silica Inc. to extract sub-surface silica sand in the RM of Springfield has raised questions concerning the effectiveness of the Manitoba Environment Act (MEA) to evaluate such projects and determine whether or not they should proceed.
A number of criticisms have been raised about this 1988 legislation, amended several times since, and subject of an intensive review by the Manitoba Law Reform Commission (MLRC) in 2017.
The major issues arise from a misreading of the act and how it functions, a misunderstanding of the intent of the legislation, and some confusion about the roles of elected and appointed officials in a democratic society.
The major concerns appear to be:
That the Clean Environment Commission is the “Manitoba regulator” but can only make non-binding recommendations to the minister;
That the final decision-maker for licences under the act is the minister, an elected politician;
That, by inference from the above, licensing decisions are political rather than science-based;
That the act does not contain criteria for approving or denying a licence; and
That there are no requirements to issue reasons for any decision under the act.
The Clean Environment Commission (CEC) is not a regulatory body. Its mandate is to consult the public concerning specific projects and more general environmental issues that have been referred by government for the commission’s advice. In recent years, the CEC has tended to act more like a regulatory body, hiring its own “experts” and conducting detailed technical reviews. Perhaps this is in response to the savaging of the province’s environmental expertise by the last several administrations.
It’s intriguing to recall that, prior to 1988, the CEC was the regulatory authority, issuing all environmental approvals. This “independent” body was, of course, appointed by the party holding office; that assured that most, if not all appointees, held environmental views quite compatible with the government’s. The commission was tasked to deal with pollution only, whereas the MEA was designed to deal with the full panoply of social, environmental and economic concerns under the environmental assessment umbrella.
Very few environmental licensing approvals are issued by the minister, nor do they require her approval.
The 1988 act was crafted to place considerable power in the hands of a departmental official designated as the “director.”
I can attest to the integrity of those officials who, in fact, made almost all the regulatory decisions, including licensing.
But, while recognizing most regulatory decisions can and should be made solely on the basis of sound science, the act also recognized that some decisions are more complicated than that and can involve uncertain science and broader public policy issues, and therefore cannot, or at least should not, be resolved by unelected bureaucrats. Regulation set out three classes of projects. A very small number of projects were designated as Class 1 and subject to ministerial approval. Class 2 and 3 licences are issued by the director.
This schema is apparently anathema to some who believe the essence of our democracy is to elect politicians who should then leave all decisions — including those that should be decided on the basis of a broad spectrum of societal values and interests to — appointed bureaucrats!
Under the Environment Act, no minister to the best of my knowledge has ignored the technical advice of the department to mitigate the environmental impact of any of the few ministerial approved projects.
It is held in some circles that a major flaw in Manitoba’s legislation is that it does not set out the criteria upon which a decision to approve or reject a project should be made. The Government of Canada has attempted to do this in its Impact Assessment Act, considered unconstitutional in a recent opinion of the Supreme Court of Canada. There have been schemes from academia that identify dozens of factors that should be evaluated to determine the sustainability of a project and thus determine whether or not it should proceed.
Whose criteria do we enshrine? The environmental interest community? Business? The interests of the numerous stakeholders who might possibly be affected by various developments? Sounds very political; and it is.
Finally, politicians should have to explain their decisions. Well, it seems to me enshrining this in legislation — and the MEA does require the minister to explain reasons for rejecting recommendations of the CEC — is to fail to understand the problem. It’s not that politicians fail to explain their decisions — do you think for one moment that, had the previous government approved the Sio Silica proposal, it wouldn’t have offered an explanation — it’s that the reasons given are often fatuous nonsense, something no legislation will cure.
None of the above is to absolve the MEA of obvious flaws. The 2017 MLRC review took a thoughtful and probing look at the act. The province should consider partnering with this worthy organization to update its review as the basis for updating the act that has served us rather better than its current critics would have us believe, but is showing its age.
As for Sio Silica, several things are clear.
First, the science is clear that the science is unclear; we can’t say with any certainty what the effects of the proposed “aquatic mining” will be.
Second, there are larger socioeconomic issues at play, as no doubt officials of Selkirk, potential home for an associated solar panel manufacturer, are already pointing out to the province.
Third, fears that business will see a negative licensing decision as a reason to steer clear of Manitoba can be troubling in the short-term but ultimately groundless. I have heard the refrain many times and never once saw it come to fruition. Finally, whatever the decision, it will send a signal to Manitobans concerning the new administration’s environmental credentials.
It’s perfectly appropriate that the minister of environment decide on Sio Silica’s fate and I, for one, am confident she will make the right decision.
Norman Brandson is the former deputy minister of the Manitoba departments of environment, conservation and water stewardship.
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