After years of public consultation, partisan debate and jurisdictional wrangling, Parliament has recently given Royal Assent to Bill C-69.
Predictably, there were mixed views about this milestone event. For example, Bill C-69 was hailed by federal officials as “better rules to protect the environment and grow the economy”. Conversely, Bill C-69 detractors continued to make unsubstantiated claims that the new law will deter investors and prevent new pipelines from being approved in Canada.
In contrast, some environmental organizations generally welcomed the passage of Bill C-69, and expressed relief that the Bill was enacted without most of the contentious amendments put forward by the Senate.
Assuming that this omnibus legislation is proclaimed in force in the coming months, Bill C-69 will amend, repeal and replace numerous environmental statutes at the federal level. For example, the much-maligned Canadian Environmental Assessment Act, 2012 (CEAA 2012) will be supplanted by the new Impact Assessment Act (IAA) set out in Part 1 of Bill C-69.
In general terms, the IAA is intended to deliver on the current government’s commitment to strengthen, and restore public trust in, the assessment processes used to evaluate and approve major projects (including those in Ontario) that may affect areas of federal interest.
However, a close examination of the IAA reveals that while the new legislation offers some potentially useful reforms that may partially satisfy the government’s commitment, the Act also contains problematic provisions that will likely perpetuate the serious flaws found in CEAA 2012. This is not surprising since the IAA and CEAA 2012share the same basic architecture (e.g. project list triggers, information-gathering by review panels, decision-making by Cabinet ministers, etc.).
To its credit, the IAA contains certain changes that, if properly implemented, would represent a modest improvement over Canada’s current environmental assessment (EA) regime. For example, the new Act:
- establishes the new Impact Assessment Agency of Canada to conduct or coordinate impact assessments of designated projects;
- mandates a new “early planning” phase to engage the public, stakeholders and Indigenous communities;
- broadens the scope of the assessment process by requiring an evidence-based review of the project’s potential impacts on health, social, and economic conditions, as well as the project’s environmental effects;
- sets out statutory factors for decision-making under the IAA, including whether the project makes a “contribution to sustainability,” and whether it helps or hinders Canada’s environmental obligations and climate change commitments; and
- requires detailed reasons for impact assessment decisions that approve (or reject) proposed projects.
However, the IAA still suffers from various flaws, despite repeated calls by CELA and other groups for Parliament to adopt appropriate amendments to the Act prior to its passage. For example, the IAA:
- only applies to a relatively small handful of large-scale projects designated by regulation or Ministerial order;
- enables the Agency to wholly dispense with the need for an impact assessment of designated projects on a case-by-case basis;
- empowers the Minister or Agency to “scope” (or narrow) the factors to be considered in impact assessments;
- imposes fixed timelines on impact assessments that are shorter than those under CEAA 2012;
- fails to provide sufficient details on how “meaningful” public participation will be ensured at all stages of project, regional and strategic assessments;
- continues the use of ad hoc review panels rather than establishing the Agency as a quasi-judicial commission, as had been recommended by the federal government’s own Expert Panel in 2017;
- allows members of federal “life cycle” regulators (e.g. Canadian Nuclear Safety Commission, Canadian Energy Regulator, etc.) to be appointed as members of review panels in relation to designated projects subject to the Nuclear Safety and Control Act or Canadian Energy Regulator Act, despite the Expert Panel’s recommendation against having regulators conduct impact assessments;
- empowers the Minister to substitute “equivalent” provincial EA processes for the federal impact assessment process; and
- contains inadequate provisions regarding the triggering, procedural steps and content of regional or strategic assessments.
In theory, it is possible that some of these legislative shortcomings can be addressed, at least in part, by the judicious use of federal authority to make regulations, issue guidelines and develop codes of practice under the IAA. However, it is unclear whether the federal government will actually use this authority in a timely and effective manner to fill the gaps within the IAA.
In addition, CELA and other observers remain highly concerned about the limited scope of the proposed project list that triggers the application of the IAA. Simply put, if the forthcoming project list regulation is not broadly framed or sufficiently inclusive, then the IAA cannot fulfill the above-noted governmental promise about regaining public trust in federal assessment processes.
In the nuclear context, for example, CELA and other groups object to the federal government’s unjustifiable proposal to exclude various types of projects (e.g. small modular reactors, refurbishment/life extension of nuclear power plants, decommissioning of nuclear facilities, etc.) from IAA coverage. While these excluded projects would still require licencing approval under the Nuclear Safety and Control Act, they will not have to undergo the more robust and participatory requirements of an impact assessment under the IAA.
If such projects are excluded from IAA coverage, then there will be no credible sustainability-based assessment of the environmental, health, economic or social impacts of these significant activities. In CELA’s view, this approach is the antithesis of sound and precautionary environmental planning, and should not be countenanced by Parliament as the IAA moves toward implementation.
Despite the passage of Bill C-69, the long-term future of the new law remains uncertain at this time. For example, the Premier of Alberta has vowed to commence a constitutional challenge against the legislation, while the leader of the Conservative Party of Canada has made a campaign promise to repeal Bill C-69 if elected.
Over recent decades, CELA has represented clients in various administrative and judicial proceedings involving federal EA legislation. Based on this experience, CELA concludes that it is imperative for the IAA to be interpreted and applied by federal officials in a purposive manner that avoids the well-documented deficiencies of CEAA 2012.