A new discussion paper, “Environmental and Regulatory Reviews”, released by the federal government outlines many of the changes now being considered to reform the environmental impact assessment process and rebuild muscle in the Fisheries Act and the Navigation Protection Act — two key statutes weakened by environmental reforms in 2012.
One of the biggest changes will be in the nature of the assessment itself. The word “environmental” will be dropped. Impact assessment will be the objective, with impact defined broadly to include social, health and economic aspects of a project. The discussion paper even proposes adding a new category of assessment — Gender-Based Analysis Plus — intended to recognize that individuals are identified by several different factors.
Impact assessments will also weigh cumulative effects. This may require strengthening pan-Canadian frameworks (e.g., the Pan-Canadian Framework on Clean Growth and Climate Change) and conducting regional assessments to understand and manage cumulative effects.
Procedurally, impact assessments would begin much earlier than is the case now. Proponents would launch impact assessments with an early planning and engagement phase intended to identify problems before a course of action is locked in, and to achieve consensus on the project’s assessment process. The discussion paper notes that many proponents appreciate the value of early engagement, but it remains foreign to most developments.
The process would be managed by a single impact assessment agency with the objective of holding one assessment per project. The institutional expertise that currently resides within the other agencies that conduct environmental impact assessments — the National Energy Board, the Canadian Nuclear Safety Commission and the offshore petroleum boards — would not be chucked aside, however. For projects under their regulatory jurisdiction, impact assessments would be held jointly.
Limiting each project to one assessment will require greater cooperation with provinces. The single assessment is intended to provide greater certainty to proponents, and for that to happen cooperation has to include Indigenous groups as well. The discussion paper frequently returns to the need for genuine and substantial Indigenous participation in the assessment process. It is clear that Indigenous involvement is not intended to be a box to be checked on a form.
Greater transparency and participation is not just an issue for Indigenous groups, however. The discussion paper also returns often to the need to ground decisions in science as well as Indigenous knowledge, and to open more avenues for public participation and access to information.
With respect to the two statutes most affected by the 2012 environmental reforms, the discussion paper does not call for a return of the broad protections afforded all navigable waters in the pre-2012 Navigable Waters Protection Act. It does propose a more efficient process for adding waterways to the Navigation Protection Act and for regulating certain classes of obstruction on all navigable waters. It proposes a complaint mechanism for navigable waters not protected by the Navigation Protection Act and specific provisions to address the concerns of Indigenous peoples.
As to the Fisheries Act, the discussion paper calls for the return of the pre-2012 broad prohibition against harming fish habitat. The 2012 reforms repealed the definition of fish habitat and limited the prohibition to activities that seriously cause harm to fish that are part of a commercial, recreational or Aboriginal fishery.
Comments are invited through August 28, 2017.