The new Canadian environmental assessment act: A comparison with the environmental assessment review process

ELSEVIER

ENVIRONMENTAL POLICYMAKING

THE NEW CANADIAN ENVIRONMENTAL ASSESSMENT ACT: A COMPARISON WITH THE ENVIRONMENTAL ASSESSMENT REVIEW PROCESS

Alison Delicaet Environmental Planner

The Environmental Assessment Review Process (EARP) Guidelines Order was created to provide the federal government with an environmental impact assessment process that could ensure environmental implications of projects for which the federal government had a decision-making responsibility were considered early in the planning process. Due to several ambiguities in the Guidelines Order, reform was necessary and inevitable. The result of this reform is the Canadian Environmental Assessment Act, proclaimed in January 1995. This article highlights the strengths and weaknesses of the new act. It also examines why pmctitioners have criticized the federal government for not seizing the reform opportunity to take a strong jurisdictional stand on environmental protection.

Introduction Ambiguities in the Environmental Assessment and Review Process (EARP) Guidelines Order created several difficulties when applying this administrative guideline to various undertakings. Reform was necessary and inevitable. Now that reform has occurred, have the changes to EARP been viewed by practitioners as increasing the likelihood of adequate environmental protection across Canada?

This question is examined to determine if EARP reform has prompted the federal government to seize the reform opportunity and take a strong juris-

Address requesfsfor reprim lo: Alison Delicaet M.E.S., Coordinator, Bathurst Sustainable Development Project, P.O. Box 50, Bathurst, New Brunswick, E2A 321, Canada.

ENVIRON IMPACT ASSESS REV 1995;15:497-505 0 1995 Elsevier Science Inc. 655 Avenue of the Americas, New York, NY 10010

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dictional stand on environmental protection. The Constitution Act of 1867 did not specifically assign the environment to any one jurisdiction; thus, neither the federal nor provincial levels of government have exclusive authority to enact legislation over the environment (Wruck 1992). Giving provincial governments complete autonomy over protection of their own environment could reduce the likelihood of adequate protection (Schrecker 1991). Further- more, to ensure uniformity and quality of environmental impact assessments (EIAs) across Canada and to safeguard the interests affected by proposed undertakings, there is a need for a strong federal presence in environmental protection, which would ideally come from a strong Canadian Environmental Assessment Act.

Bill C-13, An Act to Establish a Federal Environmental Assessment Pro- cess, (CEAA 1992) was purported to assert a number of advantages over the original EARP (Hanebury 1991). For example, the bill introduces the concept of mediation to the’resolution of disputes in this area as well as some process for participant funding.

In some areas crucial to the effectiveness of protecting Canada’s environment, however, the act falls short. The scope of the act seems narrower than that of legislation in other provinces. Also the independence of the process and of the decision-maker is still considered inadequate by critics.

This article briefly describes the key changes to the federal environmental assessment process that have been established and whether they have been supported or disapproved by experts in the EIA field.

Criticisms That Led to Reform

Many aspects of the EARP historically had been criticized, and eventually the government of Canada acknowledged the need to reform the EARP. A key criticism was that EARP was founded on the principle of self-assessment, which gave the “initiating department” the responsibility to environmentally screen or assess a proposal, which sometimes resulted in conflicts of interest. Another key criticism with EARP was that it had no enforcement mechanism. The panel’s advisory authority, which gave no authorization to implement or enforce a decision, was also considered a “critical flaw” (Cooper 1990), as it gave “little leverage in promoting the objectives of EARP” (Rees and Boothroyd 1987).

In addition to these two major criticisms, the EARP process was criticized on a number of other fronts. Matters such as what agencies should implement the federal EA process, the types of projects that must be assessed for their environmental implications, the content of an acceptable environmental assessment, the definition of public concern, and the responsibilities and obligations entailed in self-assessment were all aspects that proved problematic (FEAR0 1987).

Discussion papers, studies, and consultations, as well as increased experience

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in EA procedures, led to a number of reform recommendations (Robertson 1989). The government wanted the reform to achieve three objectives (FEAR0 1987):

?? to improve public accessibility to federal decision-making; . to strengthen the self-assessment approach; and ?? to improve the public review phase of the process.

Although the need to reform the EARP had been acknowledged, two Federal Court cases dealing with dam sites in Saskatchewan and Alberta provided the basis for pushing the government reform package to the top of its political agenda.

In the Rafferty-Alameda dams case in Saskatchewan, the Canadian Wild- life Federation was successful in getting a federal license, required by the province for construction, quashed (Coburn 1991). By doing this, they were not only successful in getting the Federal Court of Appeal to oblige the Federal Minister of Environment to comply with the EARP Guidelines Order, but also to appoint an environmental assessment panel to conduct a public review.

With the Oldman River Dam in Alberta, the approval by the Federal Minis- ter of Transport, issued under the Navigable Waters Protection Act, was quashed by a challenge from the Friends of the Oldman River Society. This group was successful in getting the Court of Appeal to direct not only the Minister of Transportation to comply with the Guidelines Order, but the Min- ister of Fisheries as well (Wruck 1992).

Although it is beyond the scope of this study to examine the Rafferty- Alameda and Oldman River Dam Federal Court Cases in depth, it is nonethe- less necessary to note that these cases elevated EIA at the federal level from policy to law.

Legal Effects of EARP Guidelines Order

The question of legislating EARP had been “lurking in the background” since its introduction in the early 1970s (Hunt 1990). Until the Rafferty-Alameda and Oldman River Dam Federal Court Cases, both provincial and federal governments were “oblivious” to the possibility that EARP could be more than a policy (Jeffery 1991). In both cases, however, the courts found the EARP Guidelines Order was not just a set of non-binding administrative guidelines, but an instrument that had the force of law creating judicially enforceable obligations on the part of the federal government (Schrecker 1991).

These decisions established the EARP Guidelines Order as a far reaching process which:

had to be relied upon whenever a federal decision was made if that decision might have an environmental effect on an area of federal responsibility (Hanebury 1991).

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In other words, even if a regulatory body could not enforce the implementation of environmental protection measures, it still had an obligation to implement the EARP.

Having decided that the EARP Guidelines Order was enforceable as a regu- lation to be applied with respect to areas of federal responsibility, there was no delay introducing the long-awaited legislation, the Canadian Environmen- tal Assessment Act (Jeffery 1991).

The Canadian Environmental Assessment Act

On June 18, 1990, the then Minister of Environment, the Honorable Robert de Cotret, introduced Bill C-78, stating:

it would go much further than the original Guidelines. In fact, this legislation [would] result in an environmental assessment process which [was] more powerful in its impact on decision-making than any other environmental assessment legislation in the world (de Cotret 1990).

Unfortunately, de Cotret’s enthusiasm has not been shared by practitioners of EIA or the public. Hearings held after the second reading led to the Bill C-78 dying on the order paper. It was reintroduced in identical form as Bill C-13, An Act to Establish a Federal Environmental Assessment Process (Wruck 1992) and was passed by the House of Commons on March 19,1992. Procla- mation of the act occurred in January, 1995.

Overview of the Canadian Environmental Assessment Act The principal elements of the legislative scheme are described in the following paragraphs. This synopsis will be followed by a section that will identify some of the weaknesses and strengths identified to date with respect to the Cana- dian Environmental Assessment Act (CEAA).

The federal authorities that will be subject to the act include federal minis- tries, agencies, departments, and Crown corporations (CEAA s.2). An environmental assessment (initial screening and report concerning environmental effects) is to be carried out with respect to proposed projects where (CEAA s.5):

?? the federal authority is the proponent; ?? the authority provides financial assistance; ?? the project is carried out on federal lands; or ?? in circumstances where a federal permit, license, or approval is required.

The act provides regulations for the development of exclusionary and mandatory study lists for different types of projects. These sections of the bill (s.6 and s.55) are a marked departure from the EARP Guidelines Order (Wruck 1992). The exclusionary list lists projects that (FEAR0 1993a):

?? have negligible environmental effects;


?? should be excluded for reasons of national security; and ?? will entail minimal federal involvement.

The mandatory study list includes all projects that will have significant adverse environmental effects (FEAR0 1993b).

The Federal Environmental Assessment Review Office (FEARO) is replaced by a new agency, the Canadian Environmental Assessment Agency. The Min- ister of the Environment will continue to be responsible for the agency, but it will be separate from Environment Canada. The new agency will perform essentially the same advisory, as opposed to decision-making, role as that of its predecessor (Jeffery 1991).

The environmental assessment process is essentially a three-stage process consisting of (CEAA s.10):

?? an initial screening; ?? mediation or assessment by a review panel and preparation of a report;

and ?? a follow-up program.

Once the responsible authority completes the screening process and finds that a project is not likely to cause significant adverse environmental effects, or that such effects are mitigable, the process may proceed subject in the latter case to the implementation of mitigation measures (CEAA s.16).

If a project is likely to cause significant adverse environmental effects that cannot be mitigated, it is referred to the sole discretion of the Minister of En- vironment for mediation or public review (CEAA ~25). The responsible authority is prohibited from exercising any power to permit the project to proceed until the EA is completed (CEAA s.16). This differs from the situation under the EARP Guidelines Order where there is no authority to halt a project pending the completion of an assessment (Wruck 1992).

Review panels under the act have more power than their predecessors under the EARP Guidelines Order (Hanebury 1991). The new panels will have the power to summon witnesses to give evidence and to counsel production of documents (Wruck 1992). The act does not give mention, however, to the right to counsel, or the right to cross-examine witnesses, and thus the extent to which the public is entitled to participate in the process is left ambiguous (Jeffery 1991).

The process is open to the public including the proceedings before the panel, the panel’s report, and all necessary information obtained from the review (CEAA ss.32(3)(4),33,51).

The responsible authority retains the ultimate decision-making power with respect to the project following the submission of the report by the mediator or review panel (CEAA s.36).

Environmental assessments are to take into account environmental effects of a project, including cumulative environmental impacts, comments concerning those effects received from the public, and mitigation measures that are

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technically and economically feasible (Jeffery 1991). Every mandatory study must include the purpose of the project, alternatives to the project, alternative methods, as well as the environmental effects of these alternative methods. The act also provides for follow-up feedback on environmental information (CEAA s.11).

Finally, the act allows for the creation of joint review panels under section 37. This provision was designed to enable federal and provincial authorities, as well as foreign governments to form joint review panels where interjuris- dictional EIAs are considered necessary.

Strengths and Weaknesses of the Act The proposed CEAA is disappointing in several respects. In fact, many see it as a step backward from the EARP (Cooper 1990; Douglas 1991) primarily because it fails to address “many of the more insidious deficiencies inherent in [EARP]” (Jeffery 1991).

Whereas the Minister of Environment and the draft legislation asserted a strong federal role, the Environmental Caucus, made up of environmental or- ganizations charged with examining the act, found a major flaw with the first paragraph (Lindgren 1992; Cooper 1991). The Preamble of Bill C-78 (and Bill C-13) does not state the constitutional basis of the act nor does it cite the national extent of environmental protection. The most important constitutional power that needed addressing, according to the caucus (Cooper 1991), was the“peace, order, and good government” power that could establish a basis for comprehensive and wide-ranging EIAs (Hanebury 1991).

A second major concern is the apparently more restrictive scope of the act (Cooper 1991; Hanebury 1991; Jeffery 1991; Lindgren 1992; Wruck 1992). Its application is limited to “projects,” which in turn are defined as physical works or physical activities (CEAA s.2). Section 2 of the EARP Guidelines Order, however, is not limited to physical projects but applies to any “initiative, un- dertaking, or activity.” By definition under the act, policies and many programs would appear to be excluded from the limits of the act (Cooper 1991; Hanebury 1991; Jeffery 1991). Jeffery (1991) asserts that by confining policy review to the political arena, the government has once again stepped back from “allowing the affected public to examine environmental effects of government policy in a nonpartisan arena.”

Another major concern affecting the credibility of the federal EA process is that it remains dedicated to the principle of self-assessment. The ultimate decision-making power continues to rest with responsible authority, which is often the proponent. The credibility of the government’s efforts to improve the existing environmental assessment process would be enhanced if the ultimate decision-making power with respect to the environmental assessment of projects were given to an independent tribunal, or failing this, to the Minister of Environment (Jeffery 1991).


The Environmental Caucus maintains that it is a critical flaw for the panel’s decision to be only a recommendation (Cooper 1991). Furthermore, it has been declared the process will have no credibility if the decisions generated are not implemented and enforced (Lindgren 1992).

Whereas draft regulations have been made for mandatory study and exclusionary lists, other important aspects, such as setting of procedures and rele- vant time periods relating to the process and provisions concerning the conduct of assessment by review panels, remain to be prescribed by regulations (Hanebury 1991).

The last major flaw of the act deals with joint review panels. According to Jeffery (1991), the act attempted to overcome objections of provincial officials who worried about federal encroachment into provincial jurisdictions by including provisions for joint review panels in areas of jurisdictional overlap. Because the federal Minister of Environment retains power to appoint mem- bers of the panel and to give opportunity for public involvement, however, provincial officials remain wary and thus an effective, cooperative EIA process may not be achievable (Hanebury 1991).

Although many critics of the act have concluded that Canada would be better served by the continuation of the EARP Guidelines Order of 1984 (Douglas 1991), there are a number of advantages over the old regime.

The legislation contains provisions for the design and implementation of follow-up monitoring programs that were not available under the guidelines (CEAA s.35). This will later enable examination of the accuracy of predic- tions and analyses of the original review. This information is essential in the advancement of environmental science and the assessment to predict and address environmental implications of major developments (Wruck 1992).

The act also introduces the concept of mediation to the resolution of disputes, a development that seems to have no international precedent in environmental assessment legislation (Douglas 1991).

Finally, the last strength, if it does not succumb to political and/or budget- ary pressures is the intervener funding program (Jeffery 1991). Although it does not have a specific provision in the act, it was announced as part of an accompanying package (Douglas 1991).

Meaningful public participation is essential in EIA. The government has acknowledged this by including a new financial assistance program under the new act. Although it has not been legislated, a program has been approved by Cabinet and is currently in place to increase the effectiveness of public reviews by increasing the quality of participation (FEAR0 undated). Funding for groups will be determined by taking into account the number of public reviews underway or in prospect. Successful applicants of this program will have to satisfy a number of criteria, such as direct interest in the project, legitimate association representing the public, and monetary need.

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Conclusion

The Canadian Environmental Assessment Act does have some advantages over the old EARP regime. Overall, however, the new federal act remains suscepti- ble to political pressure and interference.

The original rhetoric of the act promised a strong federal presence in the EIA process (Hanebury 1991). Its introduction was a prime opportunity for the federal government to take a strong jurisdictional stand on environmental protection and to promote their aim of sustainable development, as set out in the Preamble. By narrowing the scope and continuing to support the initial self-assessment approach, however, the federal government does little to ensure sustainable development or an environmental assessment process capable of meeting the expectaticns of an increasingly skeptical public. Instead it seems to have narrowed its jurisdictional power.

A need to establish a federal environmental assessment process that is broadly applicable and wide-ranging in scope still exists (Hanebury 1991). This may ensure the uniformity and quality of EIAs across Canada, which in turn could alleviate the current state of confusion among EIA practitioners on what is required in an EIA (Beanlands and Duinker 1983). Furthermore, because provincial environmental assessment procedures differ from province to province, more federal uniformity may aid in keeping a certain level of adequacy in environmental assessments. By taking a strong jurisdictional stand, clear uniform standards across the country could have been maintained while car- rying out comprehensive EIAs without encroaching on areas of provincial concern. This in turn could have resulted in more provincial cooperation and effective involvement in the process.

The “peace, order, and good government” power, as written in the Consti- tution Act of 1867, allows for broad federal jurisdiction and could permit the most far-reaching and effective environmental protection legislation (Hanebury 1991). The federal government should have used this constitutional basis to its full potential instead of providing legislation that neither meets the expectations of EIA practitioners or the public. Unfortunately, it will be some time before the new statutorily defined federal environmental assessment process can be judged capable of meeting the expectations of EIA practitioners and an increasingly skeptical public, as no environmental assessments under the act have been completed to date.

References

Beanlands, Gordon, and Duinker, Peter. 1983. An Ecological Framework for Environ- mental Impact Assessvent in Canada, Halifax, Nova Scotia: Institute for Resource and Environmental Studies, Dalhousie University.

Canadian Environmental Assessment Act. June 23, 1992. Bill C-13. An Act to Estab- lish a Federal Environmental Assessment Process. 3rd Session, 34th Parliament.


Coburn, FE December 1991. The Federal environmental assessment and review process. Municipal Planning Law Reports 5~324-330.

Cooper, Kathy. Nov/Dec. 1990. Environmentalists reject federal environmental assessment bill. Intervenor 15(6):1&I.

de Cotret, Robert. June 18, 1990. Statement of the Honorable Robert de Cotret, Min- ister of the Environment, introducing the Canadian Environmental Assessment Act.

Douglas, Kristen. January 1991. Environmental Assessment Legislation Bill C-78 and Regimes in Other Countries, Ottawa, Ontario: Library of Parliament, Research Branch.

Federal Environmental Assessment Review Office. Undated. Participant Funding Pro- gram, Hull, Quebec: Federal Environmental Assessment Review Office.

Federal Environmental Assessment Review Office. February 1993a. Exclusion List, Cana- dian Environmental Assessment Act, Draft List. Document 6.3, Ottawa, Ontario: Policy and Regulatory Affairs.

Federal Environmental Assessment Review Office February 1993b. Inclusion List, Cana- dian Environmental Assessment Act, Draft List. Document 6.5, Ottawa, Ontario: Policy and Regulatory Affairs.

Federal Environmental Assessment Review Office. September 1990. Federal Environ- mental Assessment- New Directions, Hull, Quebec: Federal Environmental Assess- ment Review Office.

Federal Environmental Assessment Review Office. 1987. Reforming Federal Environ- mental Assessment, Ottawa, Ontario: Ministry of Supply and Services Canada.

Hanebury, Judith. October 1991. Environmental impact assessment in the Canadian federal system. McGill Law Journal 36(3):962-1027.

Hunt, Constance. Spring 1990. A note on EIA in Canada. Environmental Law 20:789-810.

Jeffery, Michael. October 1991. The New Canadian Environmental Assessment Act - Bill C-78, A disappointing response to promised reform. McGill Law Journal 36(3):1070-1089.

Lindgren, Richard. March 13, 1992. Submissions of the Canadian EnvironmentalLaw Association regarding Bill C-13 (The Canadian Environmental Assessment Act), Toronto, Ontario: Canadian Environmental Law Association.

Rees, W.E., and Boothroyd, P. November 1987. Background Paper on EARP Reform - Process and Structure. Prepared for the Canadian Environmental Assessment Re- search Council, Ottawa, Ontario: The Rawson Academy of Aquatic Science.

Robertson, James. October 1989. Environmental Impact Assessment in Canada: Proposals for Change, Ottawa, Ontario: Library of Parliament, Research Branch.

Schrecker, Ted. 1991. The Canadian Environmental Assessment Act: Tremulous steps forward, or retreat into smoke and mirrors. In Environmental Law: Focus on En- VironmentalAssessment, R. Northey (ed). North York: Osgoode Hall, York University.

Wruck, Harry. May 1992. The federal environmental assessment process is alive and well. The Advocate 50(3):349-358.

Documents

The new Canadian environmental assessment act: A comparison with the environmental assessment review process