In June 2017, the federal government released the Environmental and Regulatory Reviews discussion paper. It reiterated its commitment “to deliver environmental assessment and regulatory processes that regain public trust, protect the environment, introduce modern safeguards, advance reconciliation with Indigenous peoples, ensure good projects go ahead, and [ensure] resources get to market.”

In setting out its broad principles and preliminary proposals for legislative reform, the government invited Canadians to once again engage with and respond to its proposed approach. As scholars and practitioners of environmental assessment, and of environmental and natural resources law and policy more generally, we remain committed to participating in this once-in-a-generation opportunity to improve Canada’s environmental assessment and regulatory regimes. In our full submission to the government, summarized here, we undertook two tasks. First, we outlined the basic legal framework that in our view is required to implement the government’s policy preferences. And, second, we offered some concrete examples of what new legislative provisions could look like.

Our proposals are premised on the urgent need to meet the following broad objectives. First, the government must effectively respond to the long-standing inadequacy of federal environmental laws. Second, changes to those laws must promote lasting and mutually supporting environmental protection, social justice and economic opportunities. Third, our environmental laws must generate the credible and reliable information that federal decision-makers require to make effective long-range decisions and ensure that authorized projects and activities serve the public interest. Fourth, these objectives must be achieved through constrained decision-making based on the rule of law, whereby the obligations to utilize transparent decision-making criteria and provide clear and cogent reasons for government decisions serve to counter entrenched biases toward short-term economic and political gain.

Our overarching substantive submission is that sustainability — the achievement of long-lasting and mutually reinforcing benefits arising out of the interaction of environmental, economic, social, cultural and health considerations — must be at the core of the government’s approach to assessing and approving economic projects in Canada. Our response to the discussion paper demonstrates that, contrary to the claims made by some industry representatives, sustainability is a workable legal concept capable of providing government, industry, Indigenous peoples and the public with the level of guidance and regulatory certainty required of a modern and efficient regulatory system. Equally important, our proposed legal framework and legislative provisions would represent a marked improvement over the current approach, which has fallen considerably short on delivering efficiency and environmental protection. Indeed, the present state of affairs was more or less predicted in 1992 by the Liberals, then in opposition, who accurately described the current test for approving projects — whether a project’s significant adverse effects are “justified in the circumstances” — as “an immense loophole.” The imperatives of addressing climate change and achieving sustainability have long called for a new approach.

Fisheries Act

The government’s main proposals regarding the Fisheries Act fall into five broad categories: partnering with Indigenous peoples; early planning and integrated resource management; regulation and enforcement, including restoring the prohibition of the harmful alteration, disruption or destruction of fish habitat; partnering and collaboration to foster conservation and protect fish habitat; and providing Canadians with transparent access to information about projects and activities.

As a rule, we defer to Canada’s Indigenous peoples to comment on those proposals affecting them directly. We do, however, recommend amplifying existing provisions in the Fisheries Act and the government’s proposals by explicitly recognizing Indigenous jurisdiction in the management of fish and fish habitat. Moreover, the Fisheries Act should make Indigenous knowledge a mandatory factor to be considered in decision-making when it is made available by Indigenous peoples.

Our other recommendations include the following:

  • amending the Fisheries Act to require systematic assessment of key habitats throughout Canada on a fixed timeline;
  • amending the Fisheries Act to require the assessment of cumulative effects (adverse effects from the interaction of multiple human activities and natural processes across time and space) and to incorporate the principles of precaution and ecosystem-based management;
  • legislating the creation of an online public registry — similar to (and incorporating) the current Species at Risk Public Registry — to provide governments and Canadians with transparent access to applications, authorizations and reasons for decisions under the Fisheries Act and other legislation (see below); and
  • amending the Fisheries Act to incorporate the online public registry regime and to require the registration of major and minor projects to allow for enhanced information gathering and assessment of cumulative effects.

 Navigation Protection Act

The government’s main proposals for the Navigation Protection Act fall into three broad categories: restoring lost protections for the public right of navigation; partnering with Indigenous peoples; and ensuring that processes are open, accessible and transparent.

While falling short of fully restoring the protections under the previous Navigable Waters Protection Act, which was amended in 2012, the government’s current proposals are an improvement on the current Navigation Protection Act. The Act would be further improved by the incorporation of an online public registry and a requirement for notification of works, projects and activities on any navigable water to be published on this registry, whether or not they require approval under the Navigation Protection Act. “Registrations” of this kind would also be applicable to other projects and activities that can affect a matter under federal jurisdiction. Registrations would give the government a strong initial basis for assessing and managing cumulative effects, and it would also usefully inform regional assessment processes undertaken pursuant to the government’s proposed impact assessment regime.

In addition, the federal government should ensure that the proposed complaint mechanism and any criteria for adding a body of water to the Navigation Protection Act’s schedule of waters are legislated and not merely left to policy. Moreover, a legislated, fixed timeline for reviewing the schedule of waters would significantly increase Canadians’ trust that the process will be completed.

Impact assessment and sustainability

The primary focus of the government’s discussion paper is the creation of a new and broader, sustainability-based impact assessment regime, which it discusses in relation to seven areas: addressing cumulative effects; early engagement and planning; transparency and public participation; the inclusion of science, evidence and Indigenous knowledge; specific impact- assessment procedures; partnering with Indigenous peoples; and interjurisdictional cooperation.

Cumulative-effects assessments in Canada to date have largely underdelivered, primarily because project proponents have limited capacity and authority to address cumulative effects and government agencies have failed to fill the void. We applaud the government’s renewed focus on cumulative effects, but additional improvements are required. We suggest that cumulative effects can be better assessed through the use of regional assessments and strategic assessments (for example, for strategic matters such as infrastructure and climate change). Both types of assessment can inform and complement project-level assessments. In particular, we recommend a strategic assessment on the project-level assessment implications of Canada’s obligations under the Paris Agreement as soon as possible, and no later than two years after the government’s new impact assessment legislation comes into force.

In a similar vein, early engagement and planning that is inclusive and collaborative is also a key feature of the government’s proposed regime. However, in our view, early planning and engagement must be overseen and facilitated by the government rather than left to the proponent. The government should remain the guardian of the broader public interest throughout the assessment process. Much the same concern applies to enhancing transparency and meaningful public participation in assessment processes. We applaud the government’s commitment to an open science and data platform, including the integration of peer-reviewed science and Indigenous knowledge. We recommend amendments to the Canadian Environmental Assessment Registry to ensure that this commitment is implemented.

At the heart of the government’s proposal is its broader concept of impact assessment, which includes the environmental, economic, social and health impacts of projects and activities. Implementing impact assessment requires comprehensive alterations to prior federal environmental assessment legislation (which focused on biophysical impacts). We recommend clear and specific legislative direction that includes the following:

  • a substantive purpose of contributing to sustainability;
  • the creation of a new and independent agency with the mandate of promoting sustainability and with sufficient expertise and resources to realize this mandate;
  • constrained discretion to counteract tendencies to allow any one “pillar” of sustainability to consistently dominate others;
  • the creation of a central online registry, as described above, containing information about projects that require federal authorization, including those that are not subject to impact assessment because they are on a designated project list;
  • clearly defined mechanisms to trigger appropriate levels of assessment for projects that are not on the list;
  • requirements for rigorous adaptive management; and
  • provision for cooperative and integrated interjurisdictional assessments that adhere to the highest standard of assessment.

Our most crucial recommendation is that the legislation clearly state its overarching purpose: to ensure that approved projects and activities are consistent with and contribute to sustainability. While sustainability is an ambitious concept, it is also entirely workable and capable of being consistently adapted to different contexts. Sustainability has been recognized in at least 85 Canadian statutes, and it has been used as a criterion in major Canadian project assessments, including those for the Mackenzie Gas Project, the Lower Churchill Hydroelectric Generation Project and the Voisey’s Bay Mine and Mill Project.

For the government to meet its interrelated policy objectives of regaining public trust, protecting the environment, introducing modern safeguards, advancing reconciliation with Indigenous peoples and ensuring that good — meaning sustainability-enhancing — projects go ahead, promoting sustainability must be at the heart of the government’s new impact assessment legislation.

Missing pieces

We see three critical gaps in the discussion paper.

The first gap is the lack of important detail in the paper’s sole reference to adaptive management, the idea that we can learn by doing, which is a critical component of sustainability. In Canada to date, adaptive management has been misused as a smokescreen for open-ended, excessively discretionary decision-making that has consistently resulted in poor environmental outcomes. We recommend giving adaptive management a legal definition and process that captures the core dimensions of the paradigm, and legislating its application to both proponents and departments who purport to rely on it as a management tool.

Second, the paper describes no formal relationship among critical pieces of legislation:  the Fisheries Act, the Navigation Protection Act and the proposed new impact assessment regime. Sustainability and modernized regulatory processes more generally require integrated decision-making through a whole-of-government approach. Registration of proposed projects and activities under a single public registry, which would be implemented through these Acts and the forthcoming Canadian Impact Assessment Act, is one mechanism capable of formally bringing these legislative pieces into conversation with one another to ensure integrated and efficient decision-making.

The third gap concerns the ability of the Federal Court and the Federal Court of Appeal to adequately discharge their obligation to review compliance with these three statutes. Both courts have recently made clear their reluctance to review the technical and broad public policy aspects of environmental decision-making. We recommend that the federal government conduct a review of the need for a specialized environmental law branch of the Federal Courts or a federal environmental appeals tribunal. A reviewing institution with adequate expertise and resources is needed to ensure that decision-making is consistent with the government’s vision for environmental law reform.

The government will reflect on the public input it has received as it begins to put pen to paper on new legislation this fall. We look forward to continuing to engage on this critically important law reform project.

Photo: Shutterstock, by petrmalinak

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Martin Olszynski
Martin Olszynski est professeur adjoint à la Faculté de droit de l’Université de Calgary. Auparavant, il a été avocat au ministère fédéral de la Justice, et a pratiqué de 2007 à 2013 le droit de l’environnement et des ressources naturelles aux services juridiques de Pêches et Océans Canada. X : @molszyns
Jocelyn Stacey
Jocelyn Stacey est professeure adjointe à l’École de droit Peter A. Allard de l’Université de la Colombie-Britannique. Spécialisée en droit environnemental et administratif, elle a été assistante judiciaire auprès du juge Marshall Rothstein à la Cour suprême du Canada.
Jason MacLean
Jason MacLean is an assistant professor at the University of Saskatchewan’s College of Law, specializing in environmental law, climate change and energy policy, and sustainability.
Arlene Kwasniak, professor emerita, Faculty of Law, University of Calgary, and senior fellow, Canadian Institute of Resources Law, focuses on natural resources and environmental law as ways to attain sustainability goals.
Robert B. Gibson
Robert B. Gibson is a professor in the School of Environment, Resources and Sustainability at the University of Waterloo. He has worked on improving assessment law and application since the mid-1970s.

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