Out-of-date legislation leaves environmental licensing to Manitoba’s politicians

Opinion

Hey there, time traveller!
This article was published 17/01/2024 (600 days ago), so information in it may no longer be current.

Has the stench of political scandal surrounding Sio Silica’s controversial quartz silica mine and processing plant doomed the project? Remarkably, it remains a live issue.

That might seem improbable given recent news stories about members of the former Progressive Conservative government attempting to ram through an environmental licence for the project after they lost the election but before the NDP officially took over. And further, that an official conflict-of-interest review has been launched over those allegations.

However, look and listen closely to the new NDP government, and you will see evidence that Sio Silica’s proposal — which involves a largely untested plan to pump quartz silica from underground deposits — has at least a fighting chance of getting approval.

Premier Wab Kinew said just before Christmas that while the former government may have thought it had the project at “the finish line,” his government would be “backing up a few steps.”

Those “few steps” would include a review of Sio Silica’s business case and economic rationales, the environmental assessment done to date and whether there has been adequate consultation with Indigenous groups.

“How do we ensure that the environmental standards are there to guarantee the water supply, to guarantee the long-term environmental concerns are mitigated?” Kinew told the Free Press.

Then, Environment Minister Tracy Schmidt told the Free Press last week the ethics probe was “entirely distinct” from deliberations on an environmental licence.

If there was any doubt the NDP government is keeping an open mind about Sio Silica, it should be dispelled with the knowledge that Economic Development Minister Jamie Moses and Northern and Municipal Relations Minister Ian Bushie met in November with representatives of Sio Silica and a German company, RCT, that wants to piggyback a solar-panel manufacturing facility on the silica mining operation.

On the surface, all those statements and the meetings between the proponents and government ministers does not mean a licence is in the bag. And it should be said that the NDP government would be irresponsible to scupper a project over the unethical actions of a few Tories, particularly if it is found to be environmentally sound.

But in this instance, all evidence to date suggests the project is not environmentally sound. Sio Silica’s technology has never been used to extract silica from underground deposits, and the company has been unable to convince the Clean Environment Commission — which has assessed the project — that it can drill up to 10,000 shafts without ruining the aquifer or possibly creating thousands of unstable underground cavities.

Why would the NDP — a party that purports to have a deeper appreciation of environmental stewardship than the previous government — leave the door open to Sio Silica’s risky and largely unproven plan to pump quartz silica out of underground deposits?

First and foremost, Kinew is patently aware any decision to reject the Sio Silica proposal out of hand would be used by political opponents as evidence it is hostile to business. Rejecting an environmentally unsound project is not inherently anti-business, but it would nonetheless be used as ammunition by the PC party to portray the NDP as such.

It’s also important to remember that while Manitoba may be led by a different governing party, the politics of environmental regulation in this province remain the same.

The hyper-political context for the Sio Silica debate starts with the Environment Act, the law governing environmental regulation in this province. First passed in 1988, the legislation is hilariously out of date and in need of a major makeover.

There are many problems with the act, but at the core are concerns that Manitoba’s regulator — the Clean Environment Commission — can only make licensing recommendations to the environment minister. That means the final decision on any licence is, in its very essence, a political matter.

Most other provinces have the same fundamental flaw in their environmental licensing regimes: final decisions on environmental licensing are retained by politicians, which makes the process of determining environmental best practices an inherently political exercise.

This is hardly a new observation. In 2017, the Manitoba Law Reform Commission produced a major study of the Environment Act that included dozens of recommendations on how to modernize it and make it more transparent and accountable.

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According to the commission’s report, the act as it exists right now does not list the criteria for legally approving or denying a licence. It also does not include a legal requirement to issue reasons for any decision. The commission did not recommend a completely independent regulator be installed, but many of its recommendations would require some additional measure of independence in the decision-making process.

Although the authors of the report could not have anticipated the arrival of Sio Silica in Manitoba, they were nonetheless rather prescient about the scenarios that could be created by such a weak piece of legislation.

“With almost no decision-making criteria currently prescribed in the Act and no requirement to provide reasons, there might conceivably be nothing legally wrong with a decision to approve a development proposal, even if that project carries significant risk or the potential for adverse environmental effects,” the report stated.

None of this background suggests the NDP will issue a licence and ignore environmental risks. But even with a new government in power, that possibility is still alive and well.

dan.lett@winnipegfreepress.com

Dan Lett
Columnist

Dan Lett is a columnist for the Free Press, providing opinion and commentary on politics in Winnipeg and beyond. Born and raised in Toronto, Dan joined the Free Press in 1986.  Read more about Dan.

Dan’s columns are built on facts and reactions, but offer his personal views through arguments and analysis. The Free Press’ editing team reviews Dan’s columns before they are posted online or published in print — part of the our tradition, since 1872, of producing reliable independent journalism. Read more about Free Press’s history and mandate, and learn how our newsroom operates.