Authors: Anna Beatch, Rangi Jeerakathil
The Minister of Environment and Climate Change (the “Minister”) recently released a report entitled Building Common Ground – A New Vision for Impact Assessment in Canada on reforming Canada’s environmental assessment processes (the “Report”).
The Minister’s Mandate
The Minister’s mandate letter directed her to review the federal environmental assessment processes with the following objectives:
- Regain public trust in environmental assessment
- Introduce new, fair processes
- Help get resources to market
To accomplish her mandate, the Minister established an expert panel to conduct this review and to develop recommendations on how to improve federal environmental assessment processes.
The Panel’s Report to the Minister
The Report outlines a new vision for federal environmental assessment processes. It refers to these processes as “impact assessments” rather than “environmental assessments” to emphasize a broader scope of considerations. The panel’s envisioned impact assessment processes are intended to protect the physical and biological environment, promote social harmony and facilitate economic development.
The Report concluded that any new impact assessment processes must be governed by four fundamental principles. Specifically, impact assessment processes must be transparent, inclusive, informed and meaningful. The Report recommended significant changes to the environmental assessment regime in Canada and the approach historically taken in Canada with respect to effects assessment.
Some of the panel’s key recommendations include:
- Triggering Criteria – The panel recommended continued use of a Project List approach similar to the Canadian Environmental Assessment Act, 2012, but one which focuses on federal interests. Any project on the Project List would automatically trigger an impact assessment. In addition to projects on the Project List, a project would be subject to an impact assessment if it met certain statutory requirements (to be developed). These triggering criteria would require an assessment for projects that are likely to adversely affect matters of federal interest in a way that is consequential for present and future generations. Although the Report appears to indicate these triggering criteria will not require discretion, this is difficult to understand given the breadth of the principle. Further, an assessment could be triggered at the request of a proponent, person or group. These recommendations could materially expand federal impact assessments. For example, if cross-border emissions or greenhouse gases trigger federal jurisdiction, many large projects not previously requiring an impact assessment could now require one.
- Effects Assessment – Historically in Canada, environmental assessments attempted to answer the question of whether a particular project would result in “significant adverse environmental effects” to specified environmental receptors. If such effects did occur, typically a government department or agency or the Cabinet would determine whether the effects were justified in the circumstances. The panel largely recommended to move away from this approach in favour of a “sustainability” approach that would include five pillars of sustainability: environmental, social, economic, health and cultural. The panel recommended that, to meet the needs of current and future generations, federal impact assessments should provide assurance that approved projects, plans and policies contribute a net benefit to environmental, social, economic, health and cultural well-being. Currently, most environmental impact statements filed with the Canadian Environmental Assessment Agency and provincial agencies already consider impacts in these areas, so it remains to be seen how the new approach of “impact assessment” will differ from the existing “environmental assessment” approach in practice.
- New Impact Assessment Authority – Another significant recommended change includes the establishment of a new Authority to conduct federal impact assessments, including those previously within the jurisdiction of the National Energy Board and Canadian Nuclear Safety Commission. One of the key differences in the panel’s recommended approach is that the Authority itself, as opposed to the proponent, would be responsible for developing the impact assessment and deciding whether a project should proceed. The Authority would retain its own experts in applicable areas to conduct the impact assessment. The panel further recommended that indigenous groups have a central role in the Authority and that the Authority would be responsible for: (i) holding a hearing on all issues of non-consensus and making a conclusion on each issue; and (ii) making a decision on the overall net benefit of the project for present and future generations.
- Process – The panel recommended a change in the process for impact assessment, which would now start with a Planning Phase, proceed to a Study Phase and end in a Decision Phase. The Planning Phase would include public meetings and the establishment of a project committee, including the proponent, local stakeholders, indigenous groups and non-governmental organizations. In this planning stage the impact assessment, required studies, etc. would be planned in association with a government expert committee. The Planning Phase would result in the development of a project-specific conduct of assessment agreement which would identify who would have responsibility for developing the studies and cost related budgets. This responsibility could lie with including the proponent, indigenous groups, or others. The agreement could also set out affected indigenous groups and requirements related to the duty to consult. The Planning Phase would be followed by a Study Phase, where the required studies are carried out and the Authority would use these studies to prepare the impact statement. As such, the panel’s recommendations include significantly more public and indigenous involvement in impact assessment than exists under the current model.The Authority, through a review panel, would then make a decision on whether the project should proceed based on the sustainability principles, subject to indigenous related consents in the Decision Phase. The decision would be subject to appeal to the Governor in Council. The panel did not comment on the length of time this process would take but, in general, it appears more comprehensive, and involves greater process and public participation elements, which typically increase the length of time for a review.
- Indigenous Considerations – The panel recommended that indigenous involvement in impact assessments be increased in several significant ways. While the inclusion of indigenous representation at the Authority level is significant in itself, the panel further recommended that the principles underlying the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) be reflected in any new legislation in order to promote reconciliation. The panel indicated that all indigenous people affected by a project have the right to provide or withhold consent, but this right must be exercised reasonably. According to the Report, consent would be provided under a collaborative framework, which would include dispute resolution processes if indigenous people did not consent. The Report does not distinguish between areas where aboriginal rights or title is asserted or proven, or where treaties have been negotiated. The Report discusses the need for improvements in the way the impact to aboriginal and Treaty rights are assessed and the duty to consult is implemented, and suggests that indigenous knowledge be integrated into all phases of impact assessment, with the permission of indigenous groups. Additionally, the panel recommended the legal protection of indigenous knowledge as intellectual property, and that funding be increased to facilitate indigenous involvement.
MLT Aikins has significant experience advising clients with regards to environmental issues, natural resources, and First Nations matters. Our lawyers in these practice areas would be pleased to discuss the Report and its implications further.
Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.
 For more information with respect to the Panel’s terms of reference, see Annex 1 of the Report.