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Proposed Impact Assessment Act Has a Mixed Impact

By Water Canada 03:06PM February 13, 2018

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Last week, the Government of Canada introduced Bill C-69, which would introduce the Impact Assessment Act, replacing the Environmental Assessment Act.

“Previous reforms to environmental laws and regulations eroded public trust and put our environment and communities at risk,” said the government’s statement on the Bill. “In response, the government put in place interim principles for project reviews in January 2016, then launched a comprehensive process to review existing laws and seek Canadians’ input on how to improve our environmental and regulatory system.”

One key area of the new Act is an improved incorporation of Indigenous peoples in the assessment process. Bill C-69 describes that the Impact Act “provides for cooperation with certain jurisdictions, including Indigenous governing bodies, through the delegation of any part of an impact assessment, the joint establishment of a review panel or the substitution of another process for the impact assessment.” A central theme of the Bill is cooperation of jurisdictions.

“Several of the priorities expressed and the input shared by First Nations is reflected in the proposed legislation announced by the federal government today,” said AFN National Chief Perry Bellegarde. “In particular, we welcome the positive steps taken to include the recognition of rights, early and ongoing engagement with First Nations, and the mandatory requirement to consider Indigenous traditional knowledge as part of the environmental review process, as well as respect for cultural impacts.”

Still, Bellegarde said, “There is always room for improvement and with the full engagement of First Nations, we will seek every opportunity to further improve this proposed legislation, including ensuring its consistency with the United Nations Declaration on the Rights of Indigenous Peoples.”

The Act has received attention for its vague language with respect to how new mechanisms will be carried out to satisfaction. “Canadians want to make the transition to a carbon-free economy and want the government to put the physical and legal infrastructures in place to make that happen,” said Megan Leslie, president and CEO of World Wildlife Fund Canada. “Our ability to meet international climate targets while limiting disruption to the Canadian economy demands clear language enshrining Canada’s climate commitments as the key priority when determining public interest and explicitly requiring project approval be dependent on carbon reduction targets.”

Canada’s mining industry, through the Mining Association of Canada (MAC), was similarly cautious about the success of the new Act in delivering on substance over tone. “At first glance, the draft legislation introduces a range of new concepts related to timelines and costs, which depending on how they are implemented, could adversely impact the industry’s competitiveness and growth prospects,” said MAC in a statement.

In a detailed blog post, Meinhard Doelle, professor of law and associate dean of research at Schulich School of Law, said that “Compared to CEAA 2012, there is a clear difference in tone and preference in favour of cooperation in Bill C-69, but the main substantive change is the elimination of equivalency.” However, the Bill doesn’t land the execution. As Doelle points out, there are “no clear provisions to support/encourage cooperation over other forms of harmonization.”

Bill C-69 promises to make strong moves to change the approach to Canada’s environmental evaluation process, but it remains to seen as to whether the final legislation will deliver clear mechanisms to meet its goals. And there may be more changes to come, as the Bill does not fully address topics unearthed through the consultation process. “I have not seen much new on issues such as the registry, follow-up, the treatment of cumulative effects, public participation (with the exception of taking out the ‘directly affected’ test public engagement), learning opportunities, and the use of science in EA,” concluded Doelle.

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