By: Justina Ray and Cheryl Chetkiewicz
The federal government tabled a much anticipated new bill called the Impact Assessment Act last week. This act replaces the Canadian Environmental Assessment Act (CEAA 2012) as part of a process the government announced 18 months ago with the stated goals of restoring public trust, making decisions based on evidence, advancing reconciliation with Indigenous peoples, and simultaneously ensuring good projects get built.
A particular impetus was restoring ecological protections that had been eliminated by the previous federal government in 2012, which resulted in a considerably weakened environmental assessment law (with only a small fraction of projects being assessed) and public outcry over several major projects. To many of us involved in conservation and environmental protection, this moment presented an opportunity to benefit from more than 40 years of experience with environmental assessment around the world and to modernize the process for making decisions about major natural resource development projects.
It is clear, however, that the new bill remains a compromise that is unlikely to meet the government’s ambitious goals. It represents, at best, a small step toward reconciling a heavily resource-based economy with the protection of Canada’s remaining natural areas, many of which remain intact and are globally significant. In particular, the bill provides no assurances that impact assessment will contribute to meaningful progress in protecting ecological and cultural integrity or other values, such as carbon stores. Instead, it largely maintains the status quo in support of piecemeal decision making processes that have led to the steady erosion of natural values in this country, including biodiversity.
On a positive note, the bill does contain provisions for conducting strategic and regional assessments that could set the stage for more proactive consideration of cumulative effects at appropriate scales. Experience demonstrates that regional and strategic assessments, though relatively rare in Canada, provide the opportunity to develop and implement rational limits in order to inform decision making on project-level assessments. The problem is that neither of these assessments are defined, these provisions are not mandatory, neither governments nor project proponents are obliged to incorporate their results, and will likely require a cooperative approach with provinces and territories.
The legislation that has been tabled is more than 300 pages, with three acts rolled into one bill. Amid this complexity we considered three fundamental questions:
1. Does the revised act restore public trust?
2. Does it embrace a modern approach that will actually require consideration of cumulative effects at relevant scales, embrace big-picture decision making, and recognize the limits of natural systems?
3. Will it position us to achieve the international commitments we have made around climate change and biodiversity protection?
Does the revised act restore public trust?
The 18-month review process was an unprecedented exercise in seeking input from the public, Indigenous peoples, industry, governments and any other interested party. That said, while the new bill introduces some positive new mechanisms aimed at restoring public trust by increasing the credibility of the assessment process, it tips the scales only marginally.
First, it acknowledges the importance of decisions based on science and better evidence of broader trade offs and benefits, but merely says this evidence should be “taken into account.”
It also establishes an “expert committee” with a broad mandate, and makes its role mandatory. This is a chance to ensure independent advice plays a much larger role in the project assessment process, rather than leaving it solely to the project proponent to make a case for their project.
Finally, while we appreciate the intended paradigm shift in government process with Indigenous peoples, we caution that calling for “integration” of traditional knowledge can minimize the importance of the role of this body of evidence, as such terminology implies a subordinate role to western knowledge systems. As such, much of this language seems tokenistic with little appreciation for the change in process that such a proposal would actually entail. If they do share this information, how will these systems of knowledge be treated alongside conventional scientific knowledge systems and socio-economic analyses? Will the differences in Western and Indigenous approaches and perspectives be respected? We simply don’t know. Does it embrace a modern approach that will actually require consideration of cumulative effects at relevant scales, embrace big-picture decision making, and recognize the limits of natural systems?
In other words, does the new act significantly improve on the typical project-level assessment standard of “making things less bad" for approving projects and push us towards better approaches that recognize regional and/or cumulative impacts?
Addressing cumulative effects has been discussed for many years, because it is so clear from both on-the-ground experience and research that “business-as-usual” project-level assessments are unable to anticipate or address impacts to the environment at relevant scales or the policy issues that affect a broader public than just those impacted within the project scoping area. By cumulative effects we mean those that arise from multiple developments, or parts of development, as well as climate change. These effects arise in specific geographies as a result of individual piecemeal approvals in the past and can interact with additional developments and/or climate change in the future.
Strategic and regional assessments provide the important regional or strategic context that can be used to shape individual project assessments. These enhance understanding of real and potential cumulative effects. They also provide better opportunity for Indigenous peoples and the public to help shape regional visions, and ease the burden of project-level assessments having to deal with these issues within their process. For example, a regional assessment is crucial for addressing cumulative effects such as climate change which cannot be addressed effectively and efficiently by project-level assessments alone.
Without a regional approach, assessments cannot properly take into account the impact on wide ranging species such as caribou. Credit: Susan Morse
If we look at the Far North of Ontario, for example, we know that there are major plans for mineral development in the region. Getting these minerals to market requires mineral exploration, new mines, all-weather roads and transmission lines to provide cheap and reliable power. Yet, these same kinds of land uses generate significant greenhouse gas emissions, impact species at risk and biodiversity as well as destroy existing carbon-rich stores of wetlands and peat. They generally relegate First Nations interests and values to a number of factors such as training, monitoring, revenue and jobs within private individual impact benefit agreements. A strategic regional assessment would allow us to step back and look at how these multiple projects could affect – and change -- conditions in the Far North and again, help us put decision making around individual projects in its proper context. In other words, this is our chance to look at how many mines, roads and other disturbances this sensitive region can withstand as well as consider First Nations interests and government commitments to protecting the environment before we approve multiple individual projects or even pieces of projects.
The new bill finally acknowledges that regional and strategic assessments are relevant to impact assessment in Canada, but crucially does not make them mandatory under any circumstances nor does it define what they are. That is worrying as provisions for “regional studies” under the old act were never used. This is an area where the new act needs immediate work to make regional approaches mandatory under specific circumstances. For example, one or more applications for development in a previously undeveloped region with the potential to influence regional cumulative effects as we currently see in the Ring of Fire. Individual project assessments should be required to address the findings of these bigger picture assessments.
Will it position us to achieve the international commitments we have made around climate change, biodiversity protection and Indigenous peoples’ rights?
Here the question is whether the new act will help Canada to meet its obligations on carbon budgets, protection of natural systems and diversity, and acknowledge that we are already exceeding the planetary limits for climate change and biodiversity loss. A number of these obligations include specific recognition and commitments by Canada to Indigenous peoples, their knowledge systems, and rights and responsibilities. These include several United Nations-driven agreements, such as the Paris Accord under the Framework Convention on Climate Change, the Convention on Biological Diversity, and the Declaration on the Rights of Indigenous Peoples (UNDRIP).
The answer is that the new law simply does not live up to the federal government’s statements on the international stage in Paris nor its stated commitments to implement UNDRIP. “Impacts on Indigenous Communities and Indigenous Rights” and “Impacts on Canada’s environmental obligations and climate commitments” are mentioned among a suite of considerations to be applied in determining whether a project is in the “public interest”, but the bill is silent on how these factors will be considered, suggests that not all factors (there are 22) will be considered each time, and offers no decision rules regarding the inevitable trade-offs to the environment, societies, people’s health, and ultimately the Canadian economy that many major projects demand now and in the future.
Another factor at play is the tentative and differential posture of the federal government relative to the provinces and territories throughout this bill. Accordingly, it is difficult to see how Canada can be confident of meeting commitments with such heavy reliance on the cooperation of other jurisdictions with assessment responsibilities to get the job done.
Regarding the role of Indigenous people, it is noteworthy that the new bill does not even mention UNDRIP. While the new bill states the government is committed to “fostering reconciliation”, it ignores some of the key UNDRIP elements that Indigenous Peoples have been seeking in project-level assessment, including free, prior and informed consent.
Having a process that is really just an elaborate “permitting” system designed to minimize impacts of development, at best, will change little. If we want change (and we need it badly), then we need to ensure our governments are able to say no to projects that will contribute to tipping systems and species over the edge and yes to projects that can consider cumulative and regional impacts, respect the limits of the environment and the value and rights of the people that depend on it, and marry progress to a more equitable and sustainable vision for communities (human and natural).