Even ministerial powers can be curtailed

It’s not all that often that I find myself in complete agreement with Municipal Affairs and Environment Minister Eddie Joyce.

This time, I am, but not for the reasons you’d expect.

On Thursday, Joyce announced that the massive Grieg NL Placentia Bay aquaculture project will have to go through the entire Environmental Impact Statement (EIS) process, the exact thing ordered by the Supreme Court several months ago.

Here’s the part that I agree with. Joyce’s news release ends with a slightly peevish sounding paragraph: “The July 21, 2017, decision of the Supreme Court of Newfoundland and Labrador to overturn the release of the project from environment assessment has implications that go well beyond the Placentia Bay Atlantic salmon aquaculture project. The Court of Appeal will review that decision, and the outcome may have implications for the future interpretation of the Environmental Protection Act.”

The outcome may well have those implications, and it should.

The original court decision overturned a decision by Joyce’s predecessor, Perry Trimper, who had approved the massive salmon hatchery and fish farm in Placentia Bay. In so doing, he overruled a recommendation by his own staff that the project undergo a full EIS.

If the decision stands, the good news would be that it would essentially require cabinet ministers to take the advice of the experts specifically charged with reviewing projects on an environmental basis.

As the judge put it, since memos from staff “comprehensively addressed the obvious potential for significant negative environmental effects, and since the Minister’s letter confirms that he had concluded that there was potential for significant negative environmental effects, it follows that … once again, the Minister was obligated to order an EIS.”

That’s a good thing. What’s also important is that the court decision stresses that all parts of a project should be included in an environmental assessment, because taking individual parts of a process and looking at them in isolation may not show the full impact of a project. And if two-thirds of a project have already been approved and started, what are the realistic chances that a minister will halt the remaining one-third?

These are important restrictions on ministerial power.

It’s especially the case because the salmon operation is clearly a conflict of interest for Joyce: his own government strongly supports the venture, to the point of committing to purchase up to $45 million worth of shares in the business. The government didn’t want a long review.

There are a host of cases where the Environment Department ends up reviewing projects that are already darlings of the provincial cabinet. An environment minister is supposed to put the environment first, but if a multi-billion-dollar dam project is the centrepiece of government policy, you can easily see why a minister might want to overrule staff who have pressing concerns.

Just look back at recent environmental assessment registrations. The government has clear economic non-environmental reasons for wanting the reactivation of the Wabush Scully Mine to go ahead, for example. And every year, five-year operating plans for a variety of forestry management areas scoot through the system, proposed by one government department (Fisheries and Land Resources) and swiftly approved by another government department (Municipal Affairs and Environment). Who’s minding the shop, if the minister can simply overrule the experts? (Or, as happened in the Grieg NL case, order them to redraft their own recommendations.)

I’m not saying that the buck shouldn’t stop with the elected minister: I’m saying that any time a minister wants to overturn the decision of experts in his or her department, there had better be reasonable, cogent and clearly stated reasons why.

And those reasons have to be successfully defended, sometimes in a court of law.

Hopefully, the Court of Appeal agrees.

If the decision stands, the good news would be that it would essentially require cabinet ministers to take the advice of the experts specifically charged with reviewing projects on an environmental basis.