The Power of Perspectives

The Canadian Bar Association

Kim Covert

Impact assessments: Bill C-69 needs clarity and guidance to achieve stated goals

May 25 2018 25 May 2018

 

The federal government set out a host of worthy goals in the preamble for Bill C-69,An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigation Protection Act and to make consequential amendments to other Acts, which had its first reading in the House in February.

The government aims to implement an assessment and regulatory system that:

  • people can trust, that will protect the environment and the health and safety of Canadians
  • that allows decisions to be predictable and timely, therefore providing the stability business needs
  • reflects the government’s commitment to achieving reconciliation with First Nations
  • uses transparent processes built on early engagement and inclusive participation
  • considers both scientific and traditional knowledge
  • assesses the broader impact of policies, programs and projects.

These are all goals the CBA can get behind, say the Aboriginal Law Section and the National Environmental, Energy and Resources Law Section in a submission centred on the proposed Impact Assessment Act.

The devil, as always, is in the details.

Among other things, the Sections say they’re happy to see the shift from “environmental” assessment to “impact” assessment – which allows for the consideration of a broader range of issues than the biophysical environment – as well as the requirement to assess both the beneficial and adverse effects of a project. They’re also pleased with the single-agency concept, which they believe will provide greater consistency, regulatory certainty and transparency.

But in many cases, approval comes with a caveat – the Sections offer up 21 recommendations for improving the bill to ensure the legislation achieves its goals of transparency, clarity and consistency.

For example, it would be mandatory for the agency carrying out the federal impact assessments to include panel members from other specialized regulators when the designated project falls under that regulator’s mandate. But the Act fails to state that the majority of panel members should be from the agency, something the Sections recommend to ensure continuity.

The Sections caution that regulations dealing with the process for a proposed early planning and engagement phase phase must balance flexibility and timeliness.

The Act introduces a broad public interest test to be applied when deciding whether a project is to proceed – the Minister or Governor in Council, after considering the impact assessment report, must determine whether the adverse effects in federal jurisdiction and the adverse direct or incidental effects are in the public interest. The definition of “effects” under the Act lacks “specificity and focus,” the Sections say.

More guidance is also needed on the question of the scope of any assessment, which is determined by the Agency or the Minister. “It is possible for the Agency or Minister to determine that the scope of a factor is so minimal as to effectively scope out that factor,” the Sections write. “Alternatively, the Agency or Minister could determine that the scope of a factor is so extensive that it dwarfs the other factors and effectively turns the impact assessment into a one-issue review process.”

One of the factors that could potentially be “scoped out” of the process under the terms of the bill is the duty to consult with Indigenous groups.

“(S)ubsection22(1)(c) makes impact on any Indigenous group and any possible adverse impact on Section 35 rights among the mandatory factors to be considered in an assessment,” the submission says. “It seems highly inappropriate, however, to allow that impact to be scoped out of an assessment, as subsection 22(2) empowers the Agency or the Minister to do without specifying conditions when this could occur.”

The Sections recommend the impact assessment process include a consultation plan that indicates where the assessment process fits into the process to fulfil the Crown’s duty to consult with indigenous peoples.

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