This article was authored and co-signed by Martin Olszynski, Sara Cannon, Alex Davis, Zoie Diana, Yvonne Dzal, Jayme Lewthwaite, Mark Louie Lopez, Melanie Massey, Allyson Menzies, Sarah Otto, Wendy Palen, Mary Ann Perron, Morgan Piczak, Courtney Robichaud, Karen Vanderwolf. They are members of the Liber Ero fellows program.

Buried deep in the 2024 budget lie important amendments to Canada’s Impact Assessment Act (IAA). This law was enacted in 2019 and sets out how the federal government reviews environmental and other impacts of major industrial projects before they are approved. The amendments are Ottawa’s response to a Supreme Court of Canada ruling last fall that declared most of the law unconstitutional because it strayed beyond areas of federal jurisdiction.

As a group of conservation scientists committed to the effective protection of species and ecosystems, we were concerned about various aspects of the Supreme Court’s decision, including certain passages that could be misconstrued as limiting the federal government to considering only the most serious impacts of major resource projects.

We were therefore relieved that the proposed amendments reflect the law’s originally intended scope, that is, to consider all potentially relevant adverse effects (what the amendments refer to as “non-negligible” within federal jurisdiction), not just the most significant ones.

This approach reflects the basic ecological reality that even seemingly minor harms can be problematic when combined with those arising from other projects and other types of industrial or resource development.

These combined effects are termed cumulative impacts and are increasingly recognized as critical to account for in any credible environmental assessment.

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While we support this aspect of the proposed amendments, it is also clear that much more needs to be done. All levels of government need to work together to develop more regional approaches to project assessments that better account for cumulative impacts and acknowledge the finite capacity of our landscapes and watersheds.

It has been over 15 years since several provinces, including Alberta, first recognized that increasing economic and industrial activity was compounding stress on our land, air and water in ways that were not being addressed by existing rules.

But little progress has been made, and what was then a warning has since become reality in neighbouring British Columbia. In a precedent-setting decision, Yahey v. British Columbia 2021 BCSC 1287, the B.C. Supreme Court found the province had not lived up to its treaty obligations to the Blueberry River First Nation.

The ruling said the government had failed to develop ways “to assess or manage cumulative impacts to the ecosystems in Blueberry’s traditional territories and/or on their treaty rights.”

It did not matter that B.C. had assessed individual projects. By failing to keep an eye on the landscape as a whole, it allowed so much development that Blueberry River members could no longer meaningfully exercise their treaty rights to hunt, fish and trap.

That basic failure is found in most regulatory regimes throughout Canada.

Resource projects and other forms of industrial development are generally evaluated and managed in isolation. This fragmented approach doesn’t consider harms over time or the connection between landscapes and watersheds. It also assumes an endless supply of land, air and water – contrary to both science and basic common sense.

These assessments often duplicate efforts and prove inefficient. Different proponents may be required to gather the same baseline data repeatedly, while Indigenous Peoples and the public must turn their attention to multiple project reviews at the same time.

In contrast, regional or landscape assessments and planning allow us to better consider the impacts of big and small activities as parts of a whole ecosystem. This leads to an improved understanding of the combined consequences of development on the environment.

Taking the environmental context into account also means better decisions about projects and resource development. A regional assessment can identify air and water quality thresholds for project proponents to plan for. The information has the added benefit of streamlining individual project assessments.

A greater emphasis on regional approaches also better aligns with Indigenous knowledge and practices, which are rooted in a specific area and consider the connection among all living beings.

Indigenous Peoples are already leading the way on regional approaches to conservation and impact assessment in many parts of Canada. A shift from project-based to place-based approaches would support Canada’s commitments to reconciliation and advancement of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).

Encouragingly, the new amendments to the IAA point clearly toward a regional approach by directing federal agencies to consider “the cumulative effects of physical activities” in a manner that “applies the precautionary principle and promotes co-operation among jurisdictions and with the Indigenous Peoples.”

The federal government has begun to use that provision in the law with greater frequency, including for Ontario’s mineral-rich Ring of Fire.

Moving toward more regional approaches will present some challenges and involve a learning curve. But the amendments reflect a shift in conservation science that, importantly, we have the tools and knowledge to support.

This is not to suggest that we support all of the federal government’s amendments. Glaringly absent is any assertion of federal jurisdiction over greenhouse gas emissions from major projects.

This is an embarrassing and unacceptable shortfall given our collective responsibility for a liveable climate and Canada’s ongoing promises to close the gap between climate promises and actual emissions.

For Canada to take a leadership role in protecting nature, we must move beyond the tired and fractured jurisdictional battles that have stymied attempts to halt degradation of the land and water that sustain us. More regional, holistic and integrated approaches are needed to achieve reconciliation with Indigenous Peoples, meet our international commitments to protecting biodiversity, and ensure the long-term survival of ecosystems that benefit all living things.

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Martin Olszynski
Martin Olszynski is an assistant professor in the University of Calgary’s Faculty of Law. Previously he was counsel with the federal Department of Justice, practicing environmental and natural resources law in the legal services unit at Fisheries and Oceans Canada (2007-13). X: @molszyns

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