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Canada’s proposed new Impact Assessment Act: Good from afar but far from good?

Winter mountains (Photo: Murray Foubister via Flickr)
February 21, 2018

On February 8, the federal government unveiled Bill C-69, which would introduce a new law governing environmental assessments (EA), replace the maligned National Energy Board with a new Canadian Energy Regulator, and amend the Navigation Protection Act to introduce some additional protections (including by renaming it the Canadian Navigable Waters Act).

This blog focuses on the new Impact Assessment Act (IAA), which if passed would replace the Canadian Environmental Assessment Act, 2012 (CEAA 2012). To read the government press releases, at first blush the new IAA appears to introduce some important and helpful changes that would better safeguard the environment, allow communities to have a more meaningful say about projects that affect them, and potentially take a bigger-picture view of the cumulative impacts of natural resource development.

However, on closer examination, the Bill risks simply applying a fresh coat of paint to the same old EA model. It exempts the vast majority of projects and activities from review, provides no certainty that Indigenous jurisdiction and decision-making rights will be upheld, and gives the government broad discretion to trade environmental health for short-term economic and political gains.

In a nutshell, the new IAA falls far short of what is needed to restore public trust and protect the lands, waters and air that Canadians cherish.

Context

Canada has required environmental assessments of projects and activities that affect the environment for over 40 years. A planning tool, EA is essentially about ‘looking before you leap’.

Done well, it provides many benefits. It helps the public, Indigenous peoples, proponents and governments identify the positive and negative effects of projects that affect the environment, and select the best ways to emphasize the good while minimizing the bad. It can impose minimum safeguards, ensuring that projects do not cross an environmental tipping point. It should also situate project EAs within the broader regional context (e.g., a mine in relatively pristine surroundings will have different implications than a mine in a region heavily impacted by logging, roads, seismic lines, and oil and gas development).

EA in Canada has not always lived up to these goals, but in 2012 it hit a new low with the introduction of CEAA 2012. We have blogged and reported repeatedly about the problems with CEAA 2012 (e.g., here, here and here). Suffice it to say, it was a major step backward.

Fast forward to 2015, when the newly-minted current government committed to introducing new EA processes to restore public trust and ensure decisions are based on science and Indigenous knowledge, and when it declared: “It is time for a renewed, nation-to-nation relationship with Indigenous Peoples, based on recognition of rights, respect, co-operation, and partnership.”

Does Bill C-69 stack up? Not yet, in our opinion.

Sustainability – unless not

One of the biggest promises in the new IA Act is suggested in its title: a shift from environmental assessment, which looks only narrowly at the biophysical environmental effects of a project, to impact assessment, which assesses the broader environmental, social, health and environmental implications of proposed development. Its goal is to foster sustainability, so it also looks at the positive as well as negative effects, with the aim of enhancing environmental and human wellbeing, while avoiding or minimizing harms.

But in order to ensure that decisions actually deliver the sustainability promise, the law needs safeguards. For starters, history has shown that time and time again, when you pool environmental, community and economic considerations, the economic benefits win – no matter how small the economic benefits or how few people actually benefit from them, and regardless of the magnitude of environmental harms, or whether it is the same communities bearing the brunt of all of that accumulated environmental damage.

What is needed – and what is absent from C-69 – are legal bottom-lines that prevent decision-makers from approving projects with clearly unacceptable impacts. For instance, projects that would seriously hinder what Canada needs to do to reduce greenhouse gas emissions in accordance with our Paris Agreement obligations, or that would push species at risk past the point of no return, should clearly not proceed. But without legal safeguards, they continue to be approved.

Regional and strategic assessment

One of the biggest disappointments in the IA Act is the lack of mandatory requirements for strategic and regional assessments. Industry, environmental groups and Indigenous peoples agree: only conducting assessments project-by-project fails to understand the bigger picture of cumulative effects from multiple developments in a region, and tends to ignore broader policy issues, such as achieving Canada’s climate objectives or the pace and scale of development in a region.

Bill C-69 contains more provisions on regional and strategic assessment than CEAA 2012, but it provides no assurance that these essential, bigger-picture reviews will occur, or if they do occur, that they will be done well.

The IA Act does include a welcome provision requiring the Minister to respond publicly to any request for a regional or strategic assessment, which at the very least will help ensure that the government is considering undertaking them. It also requires the appointment of a permanent expert committee and a Ministerial Advisory Committee, which will hopefully be encouraged to assist the Minister in selecting priority regions and issues for assessment.

However, the Act should contain clarity that these assessments are to be more than simply studies; they should consider different scenarios for protection and development, and result in plans for achieving ecological, economic and community objectives. To ensure that the assessments are more than just paper exercises, it should include binding provisions that the outcomes of regional and strategic assessments be applied in project IAs, rather than just be “considered” in them. In sum, while the regional and strategic assessment provisions in the Act are a welcome step forward, too much detail about when and how they will be conducted appears to be left to Ministerial discretion for comfort.

Public participation

Another major problem the new IA Act seeks to address is the barriers to public participation. Under CEAA 2012, these barriers are both real (a “standing test” that only allows people who are “directly affected” to participate) and actual (e.g., lack of funds to retain experts, travel to hearings, etc.).

On a positive note, the new IA Act does away with the standing test and acknowledges the importance of public participation in assessments. It also introduces a new “planning phase” before assessments begin, which would allow the public to weigh in early on things like whether there are any clear red flags, project siting and design, issues to be addresses in the assessment, and how they would like to participate.

However, the new law provides little assurance that either assessments led by the Canadian Environmental Assessment Agency (which will be renamed the Impact Assessment Agency of Canada) or panel reviews will go beyond the status quo in terms of participation opportunities. It requires that the public be “provided with an opportunity to participate in the impact assessment,” but falls short of requiring that these opportunities occur at all important stages, that they are tailored to participants’ needs, or that they are more than simply “taken into account” in assessments.

At the very least, the legislation should say that participation should be meaningful, deliberative, and have the ability to influence decisions. It should also ensure that assessments will include both formal processes like hearings (where the proponent’s evidence can be tested through cross-examination), and informal ones where the public may feel more comfortable, and engage in a two-way dialogue with the government and proponent.

Finally, the law should contain an ability for the public to appeal a decision. A right of appeal is an important legal means of ensuring that the purpose of the law is met, and that decision-makers have fulfilled their legal duties. While judicial review remains an option, courts to date have given the government wide latitude to shirk or minimize the participatory and environmental goals of EA. If we want IA to be used properly, we need better oversight of it.

What gets assessed?

Briefly, we do not know. Bill C-69 maintains the CEAA 2012 approach of only assessing projects included on a project list, rather than all federally-regulated projects that may harm the environment. This list will appear in regulations, and so far the government has only published a discussion paper saying what criteria it is thinking of using to determine what is on or off the list (comments are due April 15th).

While the Minister will still have the power to designate projects that are not on the list if they will result in adverse impacts or there is public concern about the project, this power has rarely, if ever, been used to date.

Perhaps most concerning is that even for “designated” projects, there is no requirement to conduct an assessment. Instead, the Agency has discretion to decide whether an assessment is required following the early planning phase.

This power is concerning for a few reasons. First, it threatens to turn the planning phase into a screening, in which proponents will focus their energy on proving that an assessment isn’t necessary, rather than engaging with the public and Indigenous peoples on how to design it the best way possible. It also forces the public to put energy at this early stage into defending the need for an assessment, creating an adversity from the outset.

Importantly, it also means that even more projects with environmental implications can fly under the radar, potentially contributing to significant cumulative environmental damage. This power should be restricted to only where the Agency has determined that the federal government does not have jurisdiction over the project.

There is a small safety net for projects on federal lands and projects that the government funds that are built outside of Canada. Any of those not on the project list will still be subject to a “lesser assessment” process that uses the old test of whether a project will result in significant adverse impacts, and whether those impacts are justified. However, this safety net does not apply to projects within Canada that the government funds, or projects where the government is a proponent, and so is quite narrow.

We note that there is one welcome addition to the IA Act with respect to termination after the planning phase: the Minister will now have the ability to terminate an assessment – and therefore the project itself – if she determines that it will cause “unacceptable” effects, or if a regulatory authority decides that it will refuse to issue a necessary authorization (e.g., if effects will be too severe). This provision appears to be intended to prevent projects that are clearly contrary to policy or environmental objectives before wasting significant time and money on lengthy (and pointless) reviews.

Role of the NEB (and other lifecycle regulators)

This is one of the more positive aspects of the proposed IA Act, although concerns remain. Under CEAA 2012, the National Energy Board (NEB) and Canadian Nuclear Safety Commission (CNSC) were responsible for assessing projects that they also regulated. This practice was widely criticized for being restrictive, hostile to public involvement, and intended primarily to make it cheaper and easier for proponents to get risky and controversial projects built with reduced oversight.

Under Bill C-69, the NEB will be replaced by a new body – the Canadian Energy Regulator (CER). The IA Act seeks to address concerns about the role of such agencies by saying that for designated projects regulated by the new CER or the CNSC, the Minister of Environment must appoint a review panel. The panel must consist of at least three members, at least one of which must come from a roster put together by the regulators (and presumably populated by members of the regulators). The Impact Assessment Agency of Canada will provide the secretariat support to the panels, and Cabinet makes the final decision.

The shift in the way these review panels are constituted is welcome, as it promises to diversify panels. However, the Act does not cap the number of regulators on review panels, and so creates at least a theoretical risk of panel reviews being comprised entirely by – or chaired by – the CER or CNSC. Clarity in the Act that a maximum of one panel member may be appointed from the regulators would provide greater assurance that panels will have the necessary expertise and perspectives.

Also, Bill C-69 intends to merge assessments with some regulatory processes, rather than keeping them separate, as they generally should be. While the merging could be workable in this case (and makes sense from an efficiency standpoint), care will have to be taken to ensure that assessments do not become focused too narrowly on regulatory matters, as they did under CEAA 2012. Assessments are more strategic, bigger-picture planning processes than regulatory hearings. While it makes sense for the assessment to identify at least some of the information that will be required in regulatory reviews, they should not become overly burdened with regulatory detail and ignore the bigger picture.

Policy guidance and good precedents will be necessary in order to meet the efficiency goals of this merger while maintaining the integrity of assessments. Also, subsequent regulatory hearings may need to be broadened in scope and become more inclusive, in order to ensure that all concerns are addressed throughout.

Indigenous governance, collaboration and rights

Here too, the IA Act disappoints. On a positive note, it explicitly states that cooperation with Indigenous peoples and ensuring respect for Indigenous peoples’ constitutional rights throughout impact assessments are purposes of the Act. It also requires consideration of Indigenous rights at various stages, and requires the Agency to consult with Indigenous peoples in the Planning Phase.

However, it fails to mention the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), or the word “consent,” at all. Furthermore, “Indigenous peoples of Canada” is narrowly defined by the Act to mean “Indians, Indian, Inuit and Métis” rather than by reference to their inherent jurisdiction and laws, or UNDRIP.

And while the Planning Phase should facilitate the kinds of early dialogue between the Crown and Indigenous peoples necessary for collaboration to succeed, it does not require the government to enter into a government-to-government collaboration agreement prior to commencing an assessment or reaching a decision. It also does not require the Minister or Cabinet to attempt to collaborate with Indigenous peoples before reaching a final decision in an assessment. Only nations with modern self-government agreements or IA powers under other federal statutes are recognized as “jurisdictions” under the Act as a matter of course.

It is possible, but not certain that the Act could result in the recognition of the authority of other Indigenous governing bodies to conduct IAs, or exercise other powers under the Act. First, new regulations would need to be put in place. Second, an Indigenous nation would have to get the federal government to agree to treat them as a jurisdiction and to the specific powers or duties they would take on through an agreement or arrangement “authorized by the regulations” (s. 114).

Additionally, while another purpose of the IA Act is to “take into account” Indigenous knowledge (along with scientific information and community knowledge), and such “traditional” knowledge is a required factor to be considered in IA, the Act does not go so far as to require that assessments and decisions be based on that knowledge and science. This begs the question, what else, other than science and Indigenous and community knowledge, should decisions be based on? More concerningly, what can a decision not be based on?

Collaboration with the provinces (aka substitution)

Bill C-69 is especially disappointing in terms of collaboration with provincial and territorial jurisdictions. Again, it states that cooperation with provincial governments is a goal. However, the main elements of the IA Act dealing with provincial governments is all aimed at allowing the federal government to offload assessments on the provinces through substitution.

While the Act sets out criteria that the Minister must consider when determining whether to allow a substitution to a province, those criteria do not go far enough to ensure that the substituted process will be up to federal standards. In particular, there is no guarantee that the public will have the same opportunities to participate meaningfully, or that processes will as rigorously investigate proponents’ information.

Now what?

We mentioned above that we’ve written extensively on the shortcomings of CEAA 2012 – and frankly, we’re tired of it. We were hoping that with the introduction of the new IA Act, we would be able to shift gears and herald the fact that the government finally listened to the experts across Canada – including its own expert review panel – and introduced a law that would work for Canadians and the environment.

We’re not there yet, but we also haven’t given up. Bill C-69 still has to be reviewed by the House of Commons and the Senate, which can introduce amendments to the Bill. West Coast is committed to participating deeply in these reviews, and to introducing amendments to make sure the IA Act works for the public and environment, not just industry. Stay tuned!

 

Top photo: Murray Foubister via Flickr

Author: 
Anna Johnston, Staff Lawyer