On April 5, the federal government's appointed Expert Panel released "Building Common Ground: A New Vision for Impact Assessment in Canada," a detailed report (Report), which recommends key changes to current federal environmental assessment processes. The government has invited public comment on the Report until May 5, 2017 through the website www.letstalkea.ca, after which it will seek input from stakeholders and Indigenous groups to inform its potential development of legislative, regulatory or policy changes.
What You Need To Know
- The Report recommends a broader "impact assessment" (IA) framework with sustainability as the core focus. IA would assess all impacts likely to result from a project, both positive and negative, and a project would only be approved where it is determined to "contribute a net benefit to environmental, social, economic, health and cultural well-being."
- In accordance with the Expert Panel's mandate regarding how to ensure that environmental assessment legislation is amended to enhance the consultation, engagement and participatory capacity of Indigenous Peoples, the Report recommends that:
- Indigenous Peoples be included in decision making at all stages of IA, in accordance with their own laws and customs;
- IA processes require assessment of impacts to asserted or established Aboriginal or treaty rights; and
- the new IA decision-making body (called the IA Authority) be accountable for the duty to consult and accommodate, and to seek Indigenous consent.
- The IA framework is expected to apply to many more projects than the existing environmental assessment processes apply.
Three of the Key Recommendations for Impact Assessment
Sustainability is proposed as the central focus of the IA process. This is said to represent a shift away from current federal environmental assessment processes, which focus on the significance of adverse environmental effects associated with a project. The Report suggests that the current approach results in adversarial relations at the outset of the assessment process because significance is a binary decision. Instead, the Report recommends that IA should include a review of net benefits and trade-offs between benefits and negative effects.
It is proposed that a project-specific sustainability framework be defined at the outset of each IA to address potential impacts to and interactions between environmental, social, economic, health, and cultural well-being. The Report suggests that this framework will help guide development of specific issues to be assessed and the review of project alternatives. It is proposed that the final IA decision in respect of a project apply a sustainability test comprised of clear, objective criteria based on the project-specific sustainability framework.
Indigenous Consultation and Consent
The Report recommends that a number of principles from the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) be reflected within proposed IA legislation, processes and procedures. For example, it is recommended that IA legislation require integration of Indigenous knowledge into all phases of IA in collaboration with, and with the permission and oversight of, Indigenous Peoples. It also recommends that the principle of free, prior and informed consent be implemented through a Decision Phase where the IA Authority would seek consent of any affected Indigenous Peoples. The Report suggests that all affected Indigenous Peoples would have a right to provide or withhold consent.
Application and Implementation
The proposed scope of the new IA legislation is much broader than under the Canadian Environmental Assessment Act, 2012. The Report recommends that a "project" be defined as a "physical activity or undertaking that impacts one or more matters of federal interest." Project IA would be required where a project is on a new designated Project List; where a project is not on the Project List but is likely to have a "consequential impact"; or the IA Authority accepts a request to conduct an IA. The Report indicates that the IA approach is expected to apply to hundreds of projects annually, compared to annually dozens of projects under the current approach and thousands under the predecessor regime.
The Report suggests that the principle of "one project, one assessment" is central to a sustainability-focused IA process. As a result, inter-jurisdictional co-operation is seen as critical, because federal, provincial, territorial, municipal and Indigenous governments may each have responsibility for the conduct of IA, but each can only regulate matters within their constitutional jurisdiction. Where multiple IA processes apply, the Report recommends implementation of inter-jurisdictional co-operation agreements. It is proposed that substitution remain an option, but only on the condition that the highest standard of IA would apply.
The Report recommends that the planning, study and decision phases of project IA be conducted through a multi-party, in-person engagement process. The IA Authority would provide a Commissioner to lead the process and provide dispute resolution. The Commissioner would be assisted by a number of other persons. Where the IA resulted in consensus on "all important issues," the Commissioner would formalize this is an order setting out the terms of consensus. "When there are important issues of non-consensus," a review panel would be established to decide whether the project met the sustainability test.
The Report also indicates that the time limits under the current legal framework are too restrictive, and timelines should be project-specific instead.
To discuss these issues, please contact the author(s).
This publication is a general discussion of certain legal and related developments and should not be relied upon as legal advice. If you require legal advice, we would be pleased to discuss the issues in this publication with you, in the context of your particular circumstances.
For permission to republish this or any other publication, contact Janelle Weed.
© 2017 by Torys LLP.
All rights reserved.