Robert B. Gibson, Meinhard Doelle, A. John Sinclair

Introduction

 Canada has been practicing environmental assessment for over 40 years. You might think we would be good at it by now. But we are not. The history of Canadian environmental assessment has been a race between accomplishment and disappointment. Today, assessment deliberations are characterized by tensions between needs for improvement and pressures for faster, easier and cheaper approvals.

From the outset, environmental assessment laws demanded change and stirred resistance. They required proponents of major undertakings to incorporate environmental factors (variously defined) alongside financial, technical and political considerations in their planning because many proponents were not motivated to do so voluntarily. Moreover, given Canadian constitutional arrangements, the laws needed to be designed and applied cooperatively by the many Canadian jurisdictions (federal, provincial, territorial and Aboriginal) with environmental responsibilities – evidently also something for which existing motivations would prove to be insufficient.

Where We Are On EA In Canada

 Canada’s first generation environmental assessment regimes have made important contributions. They have won greater attention to environmental considerations. They have opened some significant decision making to public scrutiny. In their brightest moments, they have been instrumental in forcing re-examination of prevailing priorities and practices. But environmental assessment laws and practices in Canada have not achieved the initially desired transformation in proponent and associated decision-maker culture to integrate habitual attention to environmental concerns. And they have not yet moved effectively to take on new understandings and imperatives – especially growing recognition of complex interactions in socio-ecological systems and increasingly pressing needs to ensure progress towards sustainability.

Centred on applications for project approvals and focused on mitigation of adverse effects, Canadian assessment processes have usually aimed for less bad projects rather than best service to the public interest. Focused on the effects of individual projects, they have been poorly equipped to deal with cumulative and strategic effects and broad alternatives. No two Canadian assessment regimes are the same and none represents a consistently high standard. And with modest exceptions, assessment has not evolved well to address changing global and domestic conditions. Mostly, environmental assessment in Canada has struggled to be much more than a slightly earlier, more open and better integrated process for environmental licensing of conventional projects, and even then it has been criticized for slowing approvals.

Where We Need to Go

Next generation environmental assessment will have to aim higher. Five main transitions are involved:

(i) In contrast to the prevailing focus on mitigating significant adverse effects, next generation environmental assessment would expect proposals to represent the best option for delivery of lasting wellbeing, preferably through multiple, mutually reinforcing and fairly distributed benefits, while also avoiding adverse effects.

(ii) In contrast to the common notion that economic, ecological and social objectives are inherently in conflict, can be addressed separately and will be accommodated through trade-offs that are “acceptable in the circumstances,” next generation environmental assessment would recognize that sustainability-enhancing economic, ecological and social objectives are interdependent. While some trade-offs will be unavoidable, they will acceptable only in the last resort and under clearly delineated rules.

(iii) In contrast to the assumption that effectiveness, efficiency and fairness are competing objectives, next generation environmental assessment would see that they too are logically and practically interdependent. Efficiencies would be sought by emphasizing assessment requirements where they can be most effective, especially through assessment in the development of policies, programmes and plans that are best suited to addressing cumulative effects and broad alternatives and to providing efficient guidance for projects and other more specific initiatives, and by fostering upward harmonization of the disparate assessment regimes (and associated regulatory permitting and post-approval monitoring) across Canada to compatible versions of a high next generation standard.

(iv) In contrast to environmental assessment being one, unusually open contribution to the broader set of largely inaccessible decision-making processes affecting individual projects, next generation environmental assessment would be the main public vehicle for deliberations and decisions on significant undertakings. It would adopt comprehensive sustainability-based purposes and their elaboration in criteria and it would apply to strategic level policies, plans and programmes as well as projects. In effect, environmental assessment would evolve into a tiered and integrated sustainability governance process.

(v) In contrast to treating assessment as hoops for proponents to jump through to gain project approval, next generation environmental assessment would be centred on learning, building a culture of sustainability and serving the long as well as short term public interest.

In the full article, we sketch out an initial framework of interrelated next generation components for environmental assessment regimes in Canada at the federal, provincial and territorial levels. It is our hope that the substance will also be relevant to Canadian assessment regimes established through Aboriginal land claim agreements. There is no assumption here that a next generation regime would rely entirely on environmental assessment law. Useful roles are, for example, likely for strategic processes in regional planning, sectoral policy and regulation, and municipal decision making. Insofar as Canadian jurisdictions may be persuaded to adopt the basic assessment regime components presented here (with adjustments for their own circumstances), the results should deliver beneficial upward harmonization of environmental assessment in Canada.

Possible Ways Forward

Next generation environmental assessment is presented in our article as a key means of assisting a transition from broadly unsustainable trends to brighter prospects for lasting wellbeing. No such transition can be quick and easy. Establishing the new assessment regimes will demand much at all levels of government. Significant shifts in objectives, structures and practices are involved and it is safe to assume that some of the needed changes will face serious resistance. But a future path without such changes is likely to be a good deal less comfortable. Environmental assessments in Canada are already venues for conflicts rooted in concerns about cumulative risks damages to lands, waters, traditional territories and climate. We consequently all have good reason to begin the learning process that will take us to next generation assessment.

Opportunities to implement what we have outlined above will arise at different times and in different ways in jurisdictions across Canada. Immediate progress could be made through adjustments at the regulatory or policy level. Other incremental improvements can be achieved through the application of particular tools, such as federal-provincial harmonization agreements, pilots to explore collaborative strategic environmental assessments, and experimental tiering of existing sustainability-based strategic planning with relevant project assessments. As has been done in some Canadian Environmental Assessment Agency panel reviews, the application of sustainability criteria and a net contribution to sustainability test can continue to be advanced on a case by case basis. In short, considerable progress can continue to be made within existing legislative structures.

A more fundamental shift towards the approach to environmental assessment that we have proposed is also now a realistic possibility. At the federal level, the new government’s directive to review and reform federal environmental assessment provides a critical opportunity for transition towards the next generation. Provinces feeling the impact of the previous federal government’s retreat from environmental assessment may choose to act on their own but could gain more through cooperation with the new federal government, and other authorities on fundamental reform.

There are many ways to initiate a broader discussion in Canada about the need for the kind of reform to environmental assessment we have outlined here. A multi-stakeholder process to develop and implement a next generation best practice standard for environmental assessment in Canada would be one way forward, with the promise of moving jurisdictions at all levels of government, including federal, aboriginal, provincial and municipal governments, towards the implementation of a sustainability-based assessment and decision-making approach that is integrated, transparent, and accountable.

 

The full article is available for download at: http://ssrn.com/author=715387  

It will be published in the spring issue of Volume 29 of the Journal of Environmental Law and Practice at page 251.