A quasi-judicial Impact Assessment Commission will take the place of the discredited Canadian Environmental Assessment Agency (CEAA) if the federal government accepts the recommendations of a four-member panel chaired by former environment and sustainable development commissioner Johanne Gélinas.
The “single authority” would be structured somewhat like the Canadian Radio-Television and Telecommunications Commission (CRTC), “with the power to make ‘final decisions’ on behalf of the government, through processes like formal hearings,” the National Observer reports. Its decisions could be appealed to Cabinet based on “errors” in decisions on sustainability, but those appeals would be “limited in time and by some measure of standing.”
The panel also called for the federal government to lead a strategic impact assessment of the pan-Canadian climate framework “to meet the urgent national need for clarity and consistency on how to consider climate change in project and regional impact assessment to support Canada’s policy and sustainability goals.”
Stephen Hazell, director of conservation and general counsel at Nature Canada, said a strategic assessment could provide a more comprehensive view of the country’s greenhouse gas emissions. “Right now, the federal government has no idea what projects are in the pipeline, so to speak, that are going to produce a lot of greenhouse gas emissions,” Hazell told the Observer. “Canadians, I think, would agree overall that this is an area that the federal government would need to take an interest in.”
The enabling legislation for the Impact Assessment Commission would replace the Harper-era Canadian Environmental Assessment Act and “would include new standards for Indigenous consultation, more ways for the public to participate, and more scientific independence,” iPolitics reports. The assessment process as a whole would be “transformed from looking at environmental impacts to determining the overall social good of a project, a shift in purpose that requires greater powers and more research for the new regulator.”
Environment and Climate Minister Catherine McKenna opened a month-long public comment period that will run its course before she finalizes her response to the recommendations.
“This is one input into rebuilding trust in environmental assessments,” she said. “The most important consideration for me is making sure that we have the trust of Canadians in environmental assessments, that we can get good projects, good projects will go ahead, that we’re engaging and meeting our obligations to Indigenous peoples.”
Formation of the Impact Assessment Commission would bring an end to the CEAA’s present practice of working alongside the National Energy Board or the Canadian Nuclear Safety Commission when it reviews projects within those agencies’ jurisdiction. “The panel recommends one institution be responsible for assessment, though it makes a distinction between a regulator’s technical evaluation and a general assessment of whether a project is in the public interest,” iPolitics notes. The new commission would also be “held accountable for the constitutionally-entrenched duty to consult and accommodate with Indigenous peoples, a powerful legal right that is often the subject of court disputes.”
The panel said any impact assessment authority must “increase its capacity to meaningfully engage with and respect Indigenous peoples, by improving knowledge of Indigenous peoples and their rights, history, and culture.”
The report also calls for a pre-assessment stage, before the plans for a future project are cast in stone, where Indigenous groups and the general public would have input. That change in process “could prove a pain for industries like the mining sector, where a level of confidentiality on future plans and the location of mineral staking are key for competitiveness,” writes iPolitics energy and resources specialist James Munson. But Hazell said the approach could reduce a lot of the paper burden and public contention built into the current CEAA process.
“We generate these boxcar loads of paper that don’t get read,” he said. “It’s great for the consultants, but it doesn’t actually help resolve the issues that are of importance to communities or to the proponent,” By contrast, the new approach “should allow for a much more expedited process.”
Ecojustice Program Director Karen Campbell saw good news and bad in the panel recommendations. “The idea of removing the NEB and the CNSC from conducting impact assessments is something we’ve asked for, so that’s a great development and we’re pleased to see it,” she told the Observer. But “we believe there needs to be an opportunity to judicially review the decisions of either the authority or of the Cabinet,” since “the Cabinet is not independent and accountable in the same way that the judiciary is.”