Stephen Hawking’s A Brief History of Time has been called the world’s least read, most celebrated book. In a more humble category, Bill C-69 could be Canada’s least read, most criticized legislative proposal.
C-69’s most contentious parts would replace Harper-era legislation governing assessments of major projects, including those of the oil and pipeline sectors.
A favourite target has been C-69’s Impact Assessment Act, which would supplant the Canadian Environmental Assessment Act, 2012. However, many of the criticisms and proposed responses ignore the actual content of the proposed new law, neglect lessons from unfortunate experience under the current law, and imagine that legislation even more narrowly focused on speedy approvals would do better.
Critics particularly hostile to the assessment aspects of C-69 have focused on four concerns. Each merits a response.
- Critics say the Impact Assessment Act would give too little attention to the economic benefits of projects.
The opposite is more likely. Certainly, the Impact Assessment Act would bring more direct, comprehensive, open and rigorous attention to economic factors in project assessments.
The new act would cover all of the interactive factors that affect the short- and long-term public interest. They include a project’s full range of positive and adverse economic effects as well as social, environmental and health effects and the project’s resulting prospects for contributing to lasting well-being (sustainability).
In contrast, the Canadian Environmental Assessment Act, 2012 is focused on adverse environmental effects and some consequential economic and social effects. Direct economic benefits enter only through the back door — under provisions that permit approval of projects with significant adverse environmental effects if they are “justified in the circumstances.”
What might qualify as “justified in the circumstances” is left to cabinet discretion. While cabinet surely considers economic benefits in these cases, its deliberations are not public. The current law does not set out any criteria to guide or constrain cabinet’s decision-making. Nor does the law require cabinet to reveal what information about the “circumstances” it considered, or to provide reasons for its decisions.
The Impact Assessment Act would introduce more transparent and comprehensive examination of projects’ economic and other effects. Under section 63, decision-makers would have to determine the extent to which the assessed project would contribute to sustainability, the severity of effects on matters within federal jurisdiction (such as effects on fish and fish habitat, and environmental effects that cross provincial boundaries or go beyond Canada), appropriate mitigation measures, effects on Aboriginal/Indigenous rights, and effects on meeting Canadian environmental obligations and climate change commitments.
The chief risk of the Impact Assessment Act is not too little attention to economic benefits, but too much. By giving economic effects a clear role in assessments, the new law could reinforce the usual emphasis on anticipated economic benefits in project decision-making at the expense of social and environmental concerns.
- Critics say the Impact Assessment Act leaves too much room for political discretion.
Like the current assessment law, the Impact Assessment Act would assign most serious decision-making authority to the political level, chiefly to cabinet. The new act’s advantages are constraints on these decision-makers. The act would require final decisions on proposed projects to be based on the assessment report from the public review (by the Impact Assessment Agency or a review panel) and on the section 63 considerations outlined above. And it would require publication of the reasons for each decision, again based on the required considerations.
Discretionary political-level decisions provide some accountability to the electorate. The problem is that ministers and cabinet members cannot be as well informed as those who have gathered and integrated the evidence. Also, they are tempted to favour immediate political advantage as a legitimate basis for judgment.
The middle-ground solution leaves only final authorization to the political level. The elected decision-makers receive recommendations based on comprehensive, impartial and rigorous public assessment. Decision criteria are defined and published reasons are mandatory.
The Impact Assessment Act could be stronger on all of these matters. Certainly, it falls short of the recommendations made by the government’s own expert panel, particularly concerning the impartiality of assessments and reviews dominated by information from proponents. Nonetheless, the new act is a step up from the current assessment law.
- Critics say the Impact Assessment Act permits too much risk of delay in reaching approval decisions.
C-69 is, in part, a response to failures under the current legislation to deliver viable assessment decisions in key cases. Most dramatic were the Northern Gateway and Trans Mountain pipeline assessments. In both cases, the assessment process delivered formal approvals but also stirred up strong opposition, and the approvals failed to withstand court challenges.
Oil and pipeline interests see these as “approval process” failures and call for an assessment law that will deliver faster and more certain approvals. However, the Canadian Environmental Assessment Act, 2012 was designed for precisely that purpose. In the Northern Gateway and Trans Mountain cases, the major delays resulted not from slow assessment but from a streamlined process that was not sufficiently consultative, comprehensive and credible.
Key provisions of the Impact Assessment Act respond directly to these deficiencies. In addition to covering the full range of important public interest considerations, the new act would
- start assessment consultations and provide case guidance earlier in project planning than is done under the current law;
- set timelines marginally shorter but also more flexible than those now applied;
- provide a legislated base for strategic and regional assessments that could take on big issues (major cumulative effects, broad alternatives and unresolved policy concerns) that often snarl project assessments; and
- allow process participation of some sort to all interested parties.
The new act could be better in this area too. The Impact Assessment Act’s provisions for strategic and regional assessments need to be clearer about the process and products; “meaningful public participation” needs elaboration; and time extensions for cabinet decisions should be limited to specified circumstances. Nonetheless, the Impact Assessment Act is more promising than the current law.
- Critics say the Impact Assessment Act’s expanded scope imposes new and uncertain burdens.
Those who want more attention given to economic considerations are oddly placed to condemn the broader scope of the proposed law. Their concern, presumably, is that the new law would add direct social and health as well as economic considerations — all in a sustainability framework.
While the expanded scope entails some uncertainties, it does not extend much beyond well-established law and practice in Canada, and even federal assessment authorities have significant experience. The assessment laws of six provinces and all three territories cover social, economic and cultural effects as well as effects on the biophysical environment. So do the assessment processes established under modern land claim agreements or initiated independently by Indigenous authorities.
The federal government has been a party in many joint assessments with these jurisdictions. Sustainability-based analyses have been applied in at least five joint panel reviews involving the federal government plus provincial and/or territorial and/or Indigenous authorities. The inquiries of Quebec’s Bureau d’audiences publiques sur l’environnement are effectively sustainability-based.
The most heated criticisms of Bill C-69 have centred on possible delays and barriers for the bitumen extraction and pipeline sector. To the limited extent that this sector’s troubles (low oil prices, constrained market access, slowing expansion, worsening climate change, etc.) can be attributed to the current assessment law, Bill C-69 should provide a process able to deliver more credible and broadly justifiable decisions. It would do so, however, within a sustainability framework that pays attention to long-term as well as short-term consequences.
That does not frighten everyone in the resource industries. The Mining Association of Canada, for example, supports the proposed Impact Assessment Act as an improvement over the current law. Its position is based on deep experience. Mining projects account for roughly half of the federal assessments completed under the current law.
Miners also have reason for confidence that they can demonstrate contributions to sustainability under the new law. Back in the 1990s, the successful Voisey’s Bay nickel mine and mill project on the north Labrador coast was the first project in Canada to go through review by a joint federal-provincial assessment panel using a sustainability-based approach.
Surely oil and pipeline projects should also be expected to meet C-69’s sustainability standard. If proponents of these projects fear they cannot, their problems go well beyond what changes to C-69 can fix.
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