Viewpoint: The Great Debate, Part I: Canadian Government Announces Review of Federal Environmental Assessment Process

In 2012, I wrote an article about the Conservative government’s enactment of CEAA 2012 called “Fixing the Energy Approval Process in Canada.” For people who aren’t involved in environmental assessment (EA) processes, CEAA 2012 is short for the Canadian Environmental Assessment Act, 2012. CEAA 2012 was one of the pieces of federal legislation that became a lightning rod for complaints about the Conservative government’s approach to environmental assessments.

The article began, “It was a dark and stormy night.” It went on to describe the evil hordes who were storming the gates of then-EA process (a.k.a. “enemies of Canada”) and attempted to analyze the Conservative government’s response.

Clearly not many people read it. Unfortunately, I signed away copyright but, if you’re interested, you can find it on LexisNexis or the Alberta Law Review.

It appears that we are now at the dawn of a new era. On January 27, 2016, the new Liberal government formally announced its review of the federal environmental assessment process. While we’re still in early stages, a number of things are clear.

One: It’s been almost exactly four years since the last overhaul of the federal EA process. This seems like way too short a period of time to be redoing these things.

Two: The new government is intent on undertaking this review — and “restoration” of the existing process. Therefore, ignore point one (other than, hopefully, we’re wise enough not to be doing this again in another four years).

There were some suggestions in the government’s press release about the direction it is leaning. It emphasized the following:

  1. The overall goal of the process is to restore public trust in Canada’s environmental assessment processes
  2. Public input will be sought and considered
  3. Decisions will be informed by scientific evidence (Note: the fine print described this in more detail as “science, traditional knowledge of Indigenous peoples and other relevant evidence.”)
  4. Indigenous peoples will be more fully engaged in reviewing and monitoring major resource development projects
  5. The process will have greater transparency.

There are undoubtedly further points here but for now I’ll stick with what appears to be the most important issue from a purely legal perspective.

Three: There will be aboriginal groups and lawyers who will note the “reviewing and monitoring” language in the press release and suggest that this doesn’t reflect a full and honourable understanding of the federal government’s obligations to Aboriginal Peoples. Anything you say, can and will be used against you. Don’t worry, you can fix this one.

Four: The new process will incorporate climate change.

At the same time as announcing the review process, the government announced its principles for projects that are being assessed under the existing process:

  1. No existing project proponent will be asked to return to the starting line
  2. Decisions will be based on science, traditional knowledge and other relevant evidence (as discussed)
  3. The views of the public and affected communities will be sought and considered
  4. Indigenous peoples will be meaningfully consulted, and where appropriate, impacts on their rights and interests will be accommodated
  5. Direct and upstream greenhouse gas emissions linked to the projects under review will be assessed.

‎Given that greenhouse gas emissions are being added to projects under review, it seems safe to assume that they will also be part of the requirements for new projects.

No details were provided on these measures. However, the government did announce extensions to the legislated time limit for its decision on the Trans Mountain expansion project of four months and the Energy East ‎pipeline project of nine months to “create space” for these measures.

‎Last point (for now), when I wrote my article four years ago, the primary protagonists were the federal government, environmental NGOs and aboriginal groups. Since then, a broader group of voices have joined the debate, many in the form of provincial and municipal governments. Indeed, contemporaneously with the government’s announcement, the Ontario government announced its support for its understanding of the federal government’s intentions — while continuing to restate its interests.

Talking about EAs has clearly become sexy. Hopefully, talking about reviewing EA processes quickly and effectively can be equally as sexy. Stay tuned.

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