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Working towards a next-generation environmental assessment law for Canada

May 18, 2016

Rarely does environmental assessment get to be sexy.  While environmental assessment (EA) processes and decisions have been increasingly subject to lawsuits, criticism and protests, the target of dissent is usually 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, federal EA processes have gotten their time in the spotlight. Prime Minister Trudeau has mandated no fewer than five cabinet ministers (Environment and Climate Change, Natural Resources, Fisheries, Indigenous and Northern Affairs, and Science) with reviewing federal environmental assessment processes, with the aim of introducing “new, fair processes.”

We EA geeks rejoiced, as we appear to have a once-in-decades opportunity to enact a visionary new law governing how we review and make decisions about projects, activities and initiatives that affect us.

The problem

As we have blogged about before (here and here, for example), in 2012 the federal government heeded the call from industry to remove environmental protections it believed were impeding business, ramming through hundreds of pages of legal changes through omnibus ‘budget’ bills C-38 and C-45. Unfortunately, Canada’s environmental assessment law was a key casualty in this gutting of our federal environmental safety net.

Environmental assessment is meant to allow us to “look before we leap” into activities with potentially significant effects on the environment, communities and the economy. The replacement of the Canadian Environmental Assessment Act (CEAA) with the much-weaker CEAA 2012 seriously undermined this fundamental goal. The new act eliminated between 4,000 to 6,000 environmental assessment reviews per year, limited the effects that get considered in an assessment, restricted the public’s right to participate in EA processes, offloaded the responsibility of EA to provincial governments without clear national guidelines, and set arbitrary timelines for environmental reviews. 

These changes to EA processes have eroded public trust and heightened conflict, with EA decisions increasingly subjected to lawsuits and protests.

The take-away from the experience of the last four years is clear: CEAA 2012 is not working.

Turning the corner

To address the root causes of the many problems with federal EA, Canada needs a visionary new EA law. The federal government is expected to announce its formal review process in the coming months and with it, we have a historic 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.

Thegood 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 Assessment Reform Summit in Ottawa. Over 30 lawyers, academics and practitioners, representing universities, Indigenous and environmental groups and industry attended the Summit. They gathered to discuss, crystallize their thinking, weigh options and seek to find common ground on solutions to key issues in federal EA. 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.

   

Federal Minister of Environment and Climate Change Catherine McKenna spoke at the three-day summit, which brought together the country's leading experts on environmental assessment. (Photo: Anna Johnston)

Key issues that emerged at the Summit included:

  • How to shift from asking how to avoid negative impacts to seeking positive outcomes for affected communities and the environment;
  • How to use higher-level assessment at the strategic level to avoid fights at the project level;
  • How to actually and meaningfully understand and assess the cumulative impacts of many projects and activities in a region – CEAA 2012 requires an assessment of cumulative effects, but the problems with 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;
  • How to harmonize federal assessments with those of provincial, municipal and Indigenous governments and ensure that this process is 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 the institutional architecture of the new EA system will look like, who should be conducting assessments and who should be making final decisions, and how to ensure this isn’t a solely political process but that decisions are made based on science and evidence; and
  • 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 difficult questions. But while the problems may seem daunting, we can move forward. We have examples of good sustainability assessments in Canada, including in the Lower Churchill and Voisey Bay assessments and the Mackenzie Valley pipeline inquiry.

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

By Anna Johnston, Staff Counsel and Monisha Sebastian, Summer Law Student