There's more to environmental regulations than most people realize – Winnipeg Free Press

Opinion

Sio Silica Inc. The recent uproar over the company's proposal to extract underground silica sand in Springfield has raised questions about the effectiveness of the Manitoba Environment Act (MEA) to assess such projects and determine whether they should proceed.

A number of criticisms have been raised about this 1988 legislation, which has since been amended several times and was the subject of an intense review by the Manitoba Law Reform Commission (MLRC) in 2017.

The main problems stem from a misunderstanding of the act and how it works, a misunderstanding of the purpose of the legislation and some confusion about the roles of elected and appointed officials in a democratic society.

The main concerns are as follows:

The Clean Environment Commission is the “Manitoba Regulator” but can only make non-binding recommendations to the Minister;

Under the act, the final decision-maker on licenses is the minister, an elected politician;

It follows from the above that licensing decisions are political rather than scientific;

Absence of criteria for license approval or refusal in the act; and

There is no requirement under the Act to give reasons for any decision.

Clean Environment Commission (CEC) is not a regulatory body. Its mandate is to consult the public on specific projects referred to the commission by the government and on general environmental issues. In recent years, the CEC has tended to act as a regulatory body, hiring its own “experts” and conducting detailed technical reviews. Perhaps this is a response to the brutality of the province's environmental review by the last few administrations.

It is interesting to recall that until 1988, the CEC was the regulatory body that issued all environmental permits. This “independent” body was, of course, appointed by the party office; This ensured that most, if not all, of the appointees' views on environmental protection were aligned with those of the government. The Commission is mandated to deal only with pollution, while the MEA is meant to address the full range of social, environmental and economic issues under the umbrella of environmental assessment.

The Minister rarely grants environmental license approvals and does not require his approval.

The 1988 Act was designed to place considerable powers in the hands of a departmental official designated as the “Director”.

I can attest to the integrity of the officials who make almost every regulatory decision, including licensing.

But, while recognizing that most regulatory decisions can and should be made only on the basis of sound science, the act also recognized that some decisions are more complex and may involve uncertain science and broader public policy issues, and therefore cannot, or at least not. should not be decided by unelected bureaucrats. The regulation defines three classes of projects. A very small number of projects are designated as Class 1 and are subject to ministerial approval. Class 2 and 3 licenses are issued by the director.

This scheme is anathema to some who believe that the essence of our democracy is to elect politicians, who should then leave all decisions, including those based on a broad spectrum of public values ​​and interests, to appointed bureaucrats!

Under the Environmental Protection Act, as far as I know, no minister has ignored the department's technical advice to reduce the environmental impact of any of the several projects approved by the ministry.

In some circles, a major flaw in Manitoba's legislation is that it does not set out the criteria by which a decision to approve or reject a project is made. The Government of Canada attempted to do this in the Impact Assessment Act, which was ruled unconstitutional in a recent Supreme Court of Canada opinion. There are 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 continue.

Whose criteria do we approve? An environmental interest community? Business? Interests of multiple stakeholders that can be affected by different events? Sounds very political; and he.

Finally, politicians must explain their decisions. I think enshrining this in legislation – and the MEA requiring the Minister to explain the reasons for rejecting the CEC's recommendations – is a misunderstanding of the issue. Do you think that politicians cannot explain their decisions, do you think that if the previous government approved the proposal of Sio Silica, it would not have explained – the reasons given are mostly false nonsense, something illegal. heals.

None of the above exempts the MEA from its obvious shortcomings. The 2017 MLRC review took a thorough and thorough look at the act. The province should consider partnering with this worthy organization to update its review as a basis for renewing an act that has served us better than current critics, but is showing its age.

When it comes to Sio Silica, a few things are clear.

First, the science is clearly inscrutable; We cannot say for sure what the consequences of the proposed “water mining” will be.

Second, the fear that businesses will see a negative licensing decision as a reason to turn away from Manitoba may be troubling in the short term, but ultimately unfounded. I've heard the refrain many times and never seen it performed.

Ultimately, whatever the decision, it will send a signal to Manitobans about the new administration's environmental credentials.

It is very appropriate that the Minister of Environment, Sio Silica, has made a decision about the fate of Silica and I am confident that he will make the right decision.

Norman Brandson is a former deputy minister of the Manitoba Department of Environment, Conservation and Water Management.