The federal government is promising a new impact assessment process that engages critics early, that is rooted in science and that is guided by frank and open discussion. The government is betting that over time, that process will pre-empt disputes like the one currently roiling between British Columbia and Alberta over the Trans Mountain Pipeline expansion.
Details are found in Bill C-69, An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigation Protection Act and to make consequential amendments to other Acts, introduced in the House of Commons on February 8, 2018. The Bill will replace the Canadian Environmental Assessment Act, 2012 with the new Impact Assessment Act, and the National Energy Board Act with the new Canadian Energy Regulator Act that will govern energy exploitation and transport under federal jurisdiction.
The Impact Assessment Act will create the new Impact Assessment Agency of Canada, which will be responsible for all impact assessments under federal jurisdiction. It will take over assessments previously conducted by the National Energy Board and the Canadian Nuclear Safety Commission, but the institutional expertise in those bodies will not be lost to the new Agency. It is expected to draw upon them as necessary.
The omission of the word “environmental” from the title of the Act and the Agency is deliberate. Impact assessments will cover potential environmental, health, economic, and social impacts, as well as a gender-based analysis for every review. It might, for instance, consider the impact of an influx of male workers on women in nearby communities.
All reviews will weigh traditional Indigenous knowledge and will engage Indigenous communities from the outset of the review process. The objective of Indigenous engagement will be to secure consent, though federal Environment and Climate Change Minister Catherine McKenna, at a news conference, made clear that consent would not equate to a veto.
Consent “is what you strive for,” said McKenna. “It’s not always going to be possible.”
Big picture issues, such as climate change, biodiversity or species at risk, may be subject to strategic and regional assessments that may provide context for various project assessments.
For now, the Physical Activities Designation Regulations (SOR/2012-147) [the Project List], which describes projects subject to federal environmental assessment, will remain in effect. The government intends to initiate another round of consultations to help determine how that list should be revised, if at all.
Reviews will be constrained by mandatory timelines: 300 days for an Agency review and 600 days for a Panel review. That’s shorter than current timelines but it doesn’t necessarily mean that the entire process will be compressed. The new Act will require an early planning and engagement phase of up to 180 days, something that McKenna told assembled media is the norm among smart proponents and that will be required of everyone once the Bill becomes law.
The big benefit for proponents, McKenna promised, will be certainty: a clear process that will take place within a fixed timeline and that will deliver a final decision by a known date.
That final decision will rest with elected officials. Depending on the scale of the project, the final say will rest either with the Minister of Environment and Climate Change, or with Cabinet. The deciding criterion will be whether the project is in the public interest.
McKenna said she was confident that the Trans Mountain Pipeline expansion would have been approved had it been subject to this new process.