[NOTE: This article originally appeared on The Lawyer’s Daily website published by LexisNexis Canada Inc. on April 11, 2018]
Since the 1970s, an environmental assessment process has existed at the federal level to gather information and make informed decisions about the biophysical and socio-economic impacts of diverse types of projects, such as mines, energy pipelines, and radioactive waste facilities.
Despite this lengthy track record, however, there is still widespread concern about the fairness, timeliness and effectiveness of the federal process, which is currently entrenched in legislation passed by the previous government in 2012.
The ongoing controversy about the existing statute prompted the current government to appoint an Expert Panel to undertake extensive public consultations across Canada on how to improve and strengthen the national assessment process.
In addition, the government has recently proposed the Impact Assessment Act (IAA) as part of Bill C-69, which was introduced in Parliament two months ago.
If enacted, the IAA repeals the 2012 law, and establishes a new assessment process that has already generated strong criticism from industry representatives, environmental groups and Indigenous communities. For example, objections are being raised about the high degree of uncertainty and unpredictability arising from the numerous discretionary provisions in the Act.
Nevertheless, the IAA received Second Reading in March, and the Act has been referred to the Standing Committee on Environment and Sustainable Development for public hearings that are now underway in Ottawa.
As these hearings continue in April and May, there are several key questions that must be considered by the Standing Committee, including whether the IAA should be amended to better achieve the stated purposes of the Act.
These purposes include fostering sustainability, providing meaningful public participation, respecting constitutionally protected Indigenous rights, and ensuring evidence-based decisions under the Act.
While these are laudable goals, it is unclear if – or to what extent – they will be achieved under the IAA as currently drafted.
For example, it remains unknown which projects will even be subject to the IAA. The federal government has released a consultation paper on the criteria that it may use to designate projects by regulation under the Act. However, in the absence of a draft projects list under the Act, it is difficult to ascertain the intended application of the IAA at the present time.
Moreover, the mere fact that a particular type of project is listed in the IAA regulations does not guarantee that an impact assessment will be conducted. Instead, the Act gives the new Impact Assessment Agency of Canada wide-ranging discretion to dispense with the need for an impact assessment on a case-by-case basis.
To focus the assessment process, the IAA proposes a new early planning phase to solicit public and Indigenous input on the specific issues to be addressed, and on the consultation programs to be undertaken, as the project is being assessed.
While this is an important reform, the Act contains insufficient details on how the upfront planning phase will be implemented. For example, the IAA fails to specify whether participant funding will be available during this phase in order to facilitate public and Indigenous engagement.
Similarly, for Agency-led assessments of designated projects, the IAA simply requires the Agency to provide the public with an “opportunity to participate.” However, the Act provides few particulars on how this opportunity will be meaningful, or whether it will entail more than filing written comments on web-posted documents.
Under the IAA, the assessment of certain energy projects will be conducted in hearings held by ad hoc review panels. This is a potentially useful requirement, although there are serious issues about the composition and function of such review panels under the Act.
For example, the IAA requires the federal Environment Minister to appoint energy regulators – such as the Canadian Nuclear Safety Commission and Canadian Energy Regulator (the successor to the National Energy Board) – as members of review panels. Moreover, the Act fails to cap the number of regulators that can be appointed to review panels, and does not prohibit regulators from being appointed as chairpersons of review panels.
These proposed arrangements are contrary to the conclusions of the Expert Panel, which specifically advised against having regulators conduct assessments. This advice was based on the need to restore public confidence in the assessment process, and on the functional differences between environmental planning and regulatory activities.
Once an assessment has been completed under the IAA, the Agency or review panel must send its advisory report to the Minister or Cabinet, which will then decide whether to approve the project in accordance with broad statutory considerations.
This politicized approach continues the status quo under the 2012 statute, and conflicts with the Expert Panel’s recommendation that assessment decisions should be made by an independent quasi-judicial authority (not politicians behind closed doors) on the basis of clear criteria in order to enhance transparency and accountability.
Despite these and other significant unresolved concerns about the IAA, the federal government hopes that the Act will be passed by the end of 2018, and proclaimed in force in 2019 once the implementing regulations are in place.
In the interim, however, it remains to be seen whether the new Act will be appropriately amended in order to regain public trust, protect the environment, and advance reconciliation with the Indigenous peoples of Canada.