Media Release: The Federal Government’s Proposed Impact Assessment Act: Some Forward Progress, but Changes Needed to Ensure Sustainability

Toronto – The Canadian Environmental Law Association (CELA) is generally supportive of certain elements of the proposed impact assessment law introduced today in Parliament.

However, CELA concludes that several aspects of the legislation require further amendment in order to ensure sustainability and to safeguard the public interest.

Canada’s new legislative approach is set out in Bill C-69, which would repeal the existing Canadian Environmental Assessment Act, 2012 (CEAA 2012).

In its place, Bill C-69 proposes to enact the Impact Assessment Act, which establishes a new federal process for gathering information and making decisions about environmentally significant projects across Canada (e.g. mines, pipelines, and nuclear power plants).

Bill C-69 also proposes to enact the Canadian Energy Regulator Act, amend the Navigation Protection Act, and change several other related statutes.

“CELA supports the repeal of the problematic CEAA 2012,” said CELA lawyer Richard Lindgren. “However, we conclude that the new Impact Assessment Act falls short of the mark, and that it fails to implement some of the key recommendations from the government’s own Expert Panel.”

To its credit, the proposed Impact Assessment Act contains various reforms that, if enacted, would represent an improvement over CEAA 2012. For example, the new Act:

• establishes a new independent authority (the Impact Assessment Agency of Canada) to conduct and coordinate impact assessments for designated projects;
• mandates a new early planning phase that seeks Indigenous and public input on the proponent’s project description and the upcoming impact assessment;
• broadens the scope of the impact assessment by requiring the process to evaluate the need for, and alternatives to, the proposed project, and to assess potential changes in health, social, and economic conditions, rather than just environmental effects;
• sets out statutory criteria for decision-making under the Act, including whether the project makes a “contribution to sustainability”; and
• requires detailed reasons for impact assessment decisions that approve (or reject) projects subject to the Act.

However, the Impact Assessment Act is marred by a number of serious flaws that must be fixed in the coming months. For example, the Act:

• narrowly applies to only major projects designated by regulation or Ministerial order, rather than smaller projects that may also cause direct, indirect or cumulative impacts;
• enables the Agency to dispense with the need for an impact assessment for designated projects;
• continues the use of ad hoc review panels, rather than establishing the new Agency as a quasi-judicial commission, as had been recommended by the Expert Panel;
• allows members of federal regulatory bodies (e.g. Canadian Nuclear Safety Commission and Canadian Energy Regulator) to be appointed as members of review panels in relation to projects caught by the Nuclear Safety and Control Act or Canadian Energy Regulator Act, despite the Expert Panel’s recommendation against using regulators to conduct assessments;
• retains the concept of “significant adverse environmental effects”, but fails to define this key term;
• empowers the Minister to substitute the federal impact assessment process with provincial processes deemed to be “equivalent”;
• contains inadequate provisions regarding strategic or regional assessments; and
• does not refer to, cross-reference or entrench the United Nations Declaration on the Rights of Indigenous Peoples (including the principle of free, prior and informed consent) in all stages of the impact assessment process.

“In our view, the Impact Assessment Act carries forward several of the same fundamental problems that plagued CEAA 2012,” said Mr. Lindgren. “For example, while the Expert Panel recommended that impact assessment decisions should be made by an independent agency, Bill C-69 perpetuates the much-criticized political decision-making model found in CEAA 2012.”

“Unless the proposed Impact Assessment Act is substantially revised as it proceeds through Parliament, CELA concludes that the new EA process will not restore public trust or ensure credible, participatory and science-based decision-making,” stated Mr. Lindgren. “We therefore call upon Parliament to strengthen and improve the legislation before it is enacted.”

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For more information, or to arrange an interview, please contact:
Richard D. Lindgren, CELA Counsel, 613-385-1686, r.lindgren@sympatico.ca