Working Towards a Next-Generation Environmental Assessment Law for Canada

Environmental Assessment (EA) is a critical part of our repertoire of environmental law tools, designed to allow us to “look before we leap” into activities with potentially significant effects on the environment. A massive overhaul of Canada’s Canadian Environmental Assessment Act in 2012 resulted in the elimination of over three thousand assessments of proposed projects and activities, reduced public involvement in environmental decision-making and weakened environmental protection. EA processes and decisions have been increasingly subject to lawsuits, criticism and protests, with the target of dissent being either the project (say, Kinder Morgan’s controversial proposed oil sands pipeline) or the reviewing body (e.g., the National Energy Board).

But as of November 2015, the tide appears to have turned. Prime Minister Trudeau has mandated no fewer than five cabinet ministers (Environment and Climate Change, Natural Resources, Fisheries, Indigenous and Norther Affairs, and Science) with reviewing federal environmental assessment processes, with the aim of introducing “new, fair processes.”

An announcement on the launch of the review is expected this summer. Canada has a once-in-decades opportunity to implement a next-generation environmental assessment regime that could result in processes and decisions that work not only for communities, but also for the environment.

And the really good news is that we already have a pretty good idea of what that regime should look like.

On May 1-3, West Coast Environmental Law hosted a Federal Environmental Law Reform Summit in Ottawa. Over 30 lawyers, academics and practitioners, representing universities, Indigenous and environmental groups and industry, gathered to discuss, crystallize their thinking, weigh options and seek to find common ground on solutions to key issues in federal EA in preparation for participation in the federal EA review. A true brain trust on EA, the collective wisdom of Summit participants stretches back decades and spans interest groups and the country from coast to coast to coast.

Throughout the three days of workshops, one thing became clear: if the Canadian government truly wants to resolve the root causes of conflicts and issues facing its current EA regime, it will need to do more than just tweak at the edges. Canada needs a visionary new EA law.

Key issues that emerged at the Summit included:

• How to raise the bar from simply avoiding negative impacts to seeking positive outcomes for affected communities and the environment? Currently, assessments under the Canadian Environmental Assessment Act, 2012 (CEAA 2012) ask the question, “What significant environmental effects and risks might result from this project and how can those effects and risks be avoided or mitigated?” This approach presumes that projects should eventually be approved (a notion that residents of Burnaby might resist). Under a sustainability assessment approach, on the other hand, reviews would ask, “Would this project result in sustainability-enhancing outcomes for the environment, the public and the economy, and is it desired by communities and Indigenous governments?” Suh an approach not only does not presume that a pipeline or mine would be built, but necessarily involves Indigenous governments and communities throughout every stage of the process (reducing conflict).
• How to avoid dogfights over project proposals by doing bigger-picture assessments at the strategic level, e.g., by reviewing government plans, policies and proposals, and then linking strategic, regional and project-level assessment outcomes.
• How to actually and meaningfully understand and assess the cumulative impacts of many projects and activities in a region? While CEAA 2012 requires an assessment of cumulative effects, one look at Treaty 8’s hyper-fragmented territory in northeast BC and ongoing federal approvals shows that the current system isn’t working.
• How to ensure adequate follow-up after project approvals, enforce approval conditions, monitor for unforeseen impacts and adapt when necessary. While the answer may seem simple (employ more government compliance and enforcement officers and give them adequate resources to fulfil their jobs) there are questions of responsibility (should proponents self-monitor?), breadth (do conditions flow down to the regulatory permitting level?) and substance (what exactly is “adaptive management” and what should be its parameters?) that remain to be wrestled with.
• How to harmonize federal assessments with those of provincial, municipal and Indigenous governments? CEAA 2012 introduced substitution (on which only British Columbia has taken up the federal government), which is criticized as an abdication of the federal role that results in weaker processes with less informed outcomes. How to avoid sliding to the lowest common denominator, but rather allow for harmonized processes built towards the highest standards?
• How to meaningfully engage the public in a two-way dialogue throughout every stage of EA processes so that they truly do “buy-in” to decisions and results.
• How to ensure that all aspects of climate change (both how the project might affect climate change and how climate change might affect the project) are considered, including their upstream and downstream impacts.
• What will the institutional architecture of the new EA system look like? Who should be conducting assessments and who should be making final decisions? Currently, the Canadian Environmental Assessment Agency is responsible for conducting EAs and the Minister decides whether a project is likely to have significant adverse environmental impacts. If yes, the decision goes to Cabinet, which gets to determine whether those impacts are “justified in the circumstances” effectively politicizing the process.
• How to uphold the federal government’s obligations under the United Nations Declaration on the Rights of Indigenous Peoples (including the requirement to obtain the free, prior and informed consent of Indigenous groups before making decisions that could affect their rights and title) and engage in a nation-to-nation dialogue with Indigenous governments?

These are some weighty questions, no doubt. Luckily, we do not need to reinvent the wheel or embark into uncharted territory. Sustainability assessments have been conducted throughout Canada before, including in the Lower Churchill and Voisey Bay assessments and the Mackenzie Valley pipeline inquiry. Rather, it is a matter of political will and a sufficiently robust, independent review process that will ask the right questions and contain an amply broad scope.

Many of the above questions were answered in the EA Reform Summit and the outcomes will be made public and used to inform the review. You can learn more at envirolawsmatter.ca

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This blog post was co-authored with Anna Johnston, Staff Counsel, West Coast Environmental Law Association.