How to fix Canada's broken environmental assessment framework
February 15, 201715 February 2017
The Ministry of Environment and Climate Change has passed the halfway mark of its review of Canada’s environmental assessment laws and procedures.
The current framework originated with the passage of the Canadian Environmental Assessment Act in 1992. In 2012, the Harper government rewrote the law to limit the scope of the Act to reduce the number of projects that fell under its purview. However, the 2012 version of the CEAA 2012 has come under criticism for being unable to adequately address the magnitude of modern environmental problems. Many experts agree that in order to modernize the environmental assessment process, tinkering with existing legislation is not enough. What is needed, they argue, is a new legislative framework with an evaluation infrastructure capable of grappling with the diffuse, inter-related and complex nature of environmental problems.
There also seems to be widespread agreement on the conceptual frameworks that are required within a new environmental assessment statute. Amongst the usual calls for increased transparency, accountability and public participation, West Coast Environmental Law recommends 12 pillars for legislating environmental assessments. Notably, they recommend: sustainability assessments, integrated tiered assessments, cumulative effects and climate change considerations and co-governance with Indigenous Nations.
The need to move away from just evaluating the environmental impacts of a given project (environmental assessments) and towards a statute that incorporates sustainability standards (sustainability assessments) for natural resources is echoed by Richard D. Lindgren, Counsel for the Canadian Environmental Law Association. In his submission to the expert panel charged with reviewing Canada’s environmental assessment process he writes:
CELA agrees… that it is now time for the Government of Canada to shift from its traditional “first generation” [Environmental Assessment] regime (which focuses on adverse effects, mitigation measures and trade-offs among competing interests) to a comprehensive “sustainability assessment” approach (which includes strategic and regional level assessment and emphasizes outcomes that deliver long-term, multiple, mutually reinforcing and fairly distributed benefits from approved undertakings). In our view, CEAA 2012 should be repealed and replaced by a rigorous “sustainability assessment” regime at the federal level. Thus, CELA strongly urges the Expert Panel to recommend the development of “next generation” legislation.
Lindgren is drawing here on the work done by the Next Generation Environmental Assessment Project, a research group at the University of Waterloo. Along with sustainability assessments, this group also recommends the accommodation of cumulative effects. They write:
Our conception of [Cumulative Effects Assessment (CEA)] arises from the sustainability imperative, particularly ecological sustainability. This means that the focus of CEA should be on the condition of those elements of the biophysical environment that matter to us – in [Environmental Assessments], these are called valued ecosystem components (VECs). The starting place, then, is that ecosystems and their components must be kept in good condition if proposed human activities that interact with such ecosystems and their components are to be sustainable. We plan, assess, evaluate, study, examine, and otherwise pay attention to VECs and their condition as we contemplate whether to undertake specific human activities
Adopting a CEA mindset means that CEA should be at the heart of absolutely every assessment of VEC condition as influenced by human activity to ensure that we understand the relative contributions of various stressors and can decide when cumulative effects may foreclose future activities due to impacts on VECs (or require mitigation to make room for additional activities).
Martin Olszynski from Ablawg.ca also advocates the need for cumulative effects considerations and argues that a future environmental assessment law must do more than establishing rules for decision-making processes and, instead, set standards for environmental conditions. He makes the case that a new environmental assessment law must evaluate projects within the context of their development. Otherwise known as a regional environmental assessment approach:
The current project-by-project approach presumes an endless frontier – and with it an endless supply of freshwater, forests, and wildlife. Of course, the idea of a perpetual frontier has been widely discredited; it is the reason that Alberta embarked on its ambitious land use framework almost a decade ago now. And while that regime has yet to live up to its potential (see e.g. here and here), the basic premise is still the most sound: in a finite world, it is better to first take stock of our natural resources, identify what’s important, and then develop accordingly. Along these lines, such an approach also appears increasingly necessary if Canada and the provinces are to fulfill their constitutional obligations to Canada’s Indigenous peoples.
Arguably the most well-known example of cumulative effects is climate change, where each car — your car — contributes little by little to Earth’s warming. Given the magnitude, urgency and acceptance of climate change research, multiple experts have suggested that climate change must be explicitly addressed in any future environmental assessment law. Reinhard Doelle, a law professor at Dalhousie writes:
Climate change is unlike most environmental impacts, and a challenge to incorporate into [Environmental Assessments]. This is due in part to three key characteristics: i. the effects of climate change are felt globally, ii. they are cumulative, and iii. the effects generally cannot be traced back directly to individual projects. Conversely, those affected by the GHG emissions of projects proposed in Canada include citizens around the world and future generations. As a result, EA practitioners can perhaps be forgiven for either ignoring climate change all together, or dismissing the climate change effects of proposed projects as insignificant. This approach, however, has contributed to the neglect of climate change, and the urgency of not only limiting, but progressively eliminating emissions.
Finally, and perhaps as a response to the magnitude of court cases that are tying up resource development projects in litigation, many experts agree that the current CEAA does not effectively address the issue of Aboriginal rights and title. Chris Tollefson, a professor of law at the University of Victoria, writes:
Now that Canada has finally adopted the United Nations Declaration on the Rights of Indigenous Peoples, it is time for it to turn its mind to how to redesign federal EA in a manner that complies with its legal duties and responsibilities under domestic constitutional and international law.
Photo licensed under Creative Commons by Dean Hochman