Note: This post was prepared jointly with my colleague, Professor John Sinclair at the University of Manitoba.
There has been broad agreement among academics, practitioners and stakeholders involved in impact assessment in Canada that regional and strategic assessments offer opportunities to improve the efficiency, effectiveness and fairness of assessment processes and resulting decision making. Among the key benefits are the ability to address broader policy issues, to consider the interaction among a range of past, current and possible future activities, to improve the consideration of alternatives and cumulative effects, to streamline assessments at the project level, and to attract better projects as a result of improved clarity on what types of projects are desired. In spite of its tremendous promise, and endorsement by industry, environmental and indigenous interests alike, implementation in Canada has been slow, and so far, largely ad hoc.
In this post, we consider the progress made under Bill C-69 toward the adoption of an effective legislative framework for regional and strategic assessments. We consider this question in three stages. We first summarize the recommendations of the Expert Panel on federal EA reform with respect to regional and strategic assessments. We then consider the changes reflected in Bill C-69. Finally, we conclude with our own assessment of the effectiveness of the proposed changes, and recommend adjustments to ensure meaningful progress on the integration of regional and strategic assessments into the federal assessment process.
What the Expert Panel Said About Regional and Strategic Assessments
With respect to regional and strategic assessments, the Expert Panel endorsed a tiered approach whereby regional and strategic assessments serve to inform project level assessments, with the goal of improving the efficiency, effectiveness and fairness of project assessments and decisions. Having established this as the overriding goal, the Expert Panel then discussed the respective roles and application of regional and strategic assessment.
The use of regional assessment is recommended by the Expert Panel primarily in case of cumulative effects on federal lands (including marine areas). Beyond federal lands, regional assessments are proposed where there are cumulative effects on “many federal interests”. In such cases, the preferred approach is a cooperative approach with other jurisdictions. In the absence of a cooperative regional assessment, the Expert Panel proposed a more narrow scope of the assessment. The Expert Panel proposes the development of a roster of regional assessments based on where they are most needed in light of current conditions and likely future project proposals.
What Bill C-69 Says About Regional and Strategic Assessment
Sections 92 to 103 of Bill C-69 set out the basic legislative framework for strategic and regional assessments. The process is to be carried out either by the Agency, or under the direction of a committee to be established by the Minister, likely contemplated primarily in case of a cooperative assessment involving other jurisdictions. Such opportunities to cooperate with other jurisdictions are clearly provided for, particularly in the case of regional assessments beyond federal land. The terms of reference for a regional or strategic assessment have to be approved by the Minister.
Regional assessments are contemplated in the Bill for undertakings both on federal lands and beyond federal lands. The scope of regional assessments beyond federal lands seems broader than envisaged by the Expert Panel. For strategic assessment, both existing and proposed policies, plans and programs are suggested in the Bill, with a required focus on the relevance of the policy plan or program for project impact assessment, rather than a broader assessment of the policy, plan or program. This scope for strategic assessments is considerably narrower then suggested by the Expert Panel.
Section 97 provides an opportunity for any person to request that a regional or strategic assessment be carried out. The Minister has to respond to the request within timelines to be set in regulations, with written reasons for the decision. Otherwise, there is no mechanism provided for triggering a regional or strategic assessment, no criteria, and no list of undertakings to be assessed.
The public is to have an opportunity to participate in any assessment carried out, and to have access to relevant information. This is in line with the purpose section, which provides for meaningful public participation in regional and strategic assessments. The participant funding program established under section 75 makes reference to regional and strategic assessments, suggesting that there will be participant funding for any assessments carried out.
No further details are provided in Bill C-69 on the process or the outcome of a regional assessment. The assessment report is to be filed with the Minister, but there is no provision for decision-making, and no guidance on how the results of a regional or strategic assessment are to be used in future project decisions. There are, however, a number of provisions that generally provide for the consideration of the results of regional and strategic assessment. They include the Ministers decision to designate a project for assessment under section 9, the Agency’s decision to require an assessment of a designated project under section 16, and the factors to be considered in a project assessment under section 22. It would appear that the Cabinet Directive on strategic effects assessment will stay in place, but no reference is made to it in the Bill.
Law Reform Recommendations
A. Regional Assessments
The proposed approach to federal regional assessments is clearly a step forward from CEAA 2012, but overly cautious in the manner in which it introduces regional assessments to the federal assessment process. This is unfortunate, as a number of regions of the country (such as the Ring of Fire in Ontario or the Bay of Fundy in Nova Scotia) are in desperate need of regional assessments with full consideration of a range of future development scenarios, alternatives, and a full range of economic, social, environmental, health and cultural considerations.
While there are clearly limits on federal decision-making authority beyond federal lands, it is not clear that the drafters of Bill C-69 have fully appreciated the value of regional assessments to inform project assessments. In short, in order for federal decision-makers to be able to make sound decisions at the project level about a project’s contribution to sustainability (a key element in the proposed new ‘public interest’ test for project decisions), the results of a comprehensive regional assessment that is based on a reasonable range of future development scenarios, are invaluable. In fact, making good decisions under section 63 of the proposed IAA may prove to be challenging in the absence of strong regional assessments completed before project decisions are made.
For those concerned about jurisdictional constraints on federal regional assessments beyond federal land, the issue is not whether the federal government has jurisdiction over all the information needed for a thorough regional assessment; rather, the issue is whether this information will be helpful for project decisions that are within federal jurisdiction. We fully recognize (as does Bill C-69) that there will be situations where the end result of a project assessment is that there are no or minimal impacts on areas of federal areas of jurisdiction, resulting in no federal decision-making authority. However, this can only be determined once the regional and project level information gathering processes are complete, not when decisions are made about the value of a regional assessment. A regional assessment can in fact be very helpful in clarifying federal jurisdiction over particular projects.
Recommendations for Regional Assessments
- The Act should include a definition of regional assessment to clearly separate it from a strategic assessment. It is our view that a regional assessment is an assessment whose primary defining features are its regional scope and its focus on understanding the interactions between all past, present and future human activities and the natural world within a given study area.
- The Act should ensure that there are better incentives for provinces and other affected jurisdictions (such as municipalities and Indigenous communities) to carry out cooperative regional assessments with the federal government. Funding, a commitment to collaborating in creating a common ‘sustainability’ based foundation for future project decision-making, and a commitment to proceed with a federal assessment in the absence of interest from other jurisdictions, appear to be obvious motivations.
- The process to be followed (including a planning phase and an assessment phase similar to project assessments), the decisions to be made at the conclusion of the regional assessment, and how the results of the regional assessment are to be used at the project level should also be more clearly set out. As a minimum, the new Act should set out clear regulation making provisions to address these issues.
- A roster of regional assessments to be carried out would also be helpful, as would a commitment to initiate a minimum number of regional assessments in any given year.
B. Strategic Assessments
The proposed approach to strategic assessments could be significantly enhanced, as it misses the opportunity to ensure strategic assessments are used effectively to make project assessments more efficient, effective and fair by resolving high level policy issues before specific projects are proposed and assessed (or in parallel with project assessments where necessary). The planning phase for project assessments in particular provides opportunities for sequential or parallel project and strategic assessments. Bill C-69 contemplates a planning phase before the proponent prepares its impact statement. The proponent has up to three years following the planning phase to complete the statement. This time provides a unique opportunity to identify policy issues during the course of the planning phase and to initiate a strategic assessment process to resolve them.
It is clear that Bill C-69 intends strategic assessment to be used to link existing and proposed federal policies, plans and programs to project assessments, to help those engaged in project assessments understand the implications of existing and proposed federal policies, plans and programs for the projects being assessed. An example specifically addressed is the need for a strategic assessment of climate change, to determine how existing federal climate policies, plans and programs should factor into the assessment of projects and into project decisions.
While the proposed application of strategic assessments to existing and proposed policies, plans and programs is helpful, it is only one part of the overall value and importance of strategic assessments. Equally important is its potential for filling policy gaps, particularly gaps identified during the course of project assessments. Examples include outdated policies, lack of federal policies on important issues, challenges associated with new industries that have not previously been considered, and new scientific developments that make the existing policy framework unworkable at the project level. Strategic assessment can also play an important role in updating regional assessments in light of new developments.
In short, there will be issues that arise at the project assessment level that cannot be resolved between the proponent and interested members of the public when their implications go beyond the scope of a particular project assessment. This will be particularly relevant in cases of emerging or changing industries and with any significant shift in our understanding of the sustainability implications of established industries. In our view, the proponent and interested members of the public should be able to initiate a parallel process to address such broader issues in an equally open forum with similar objectives of resolving the issues in such a way as to maximize net contribution to sustainability. The Expert Panel recognized this when it indicated that participants noted that:
This lack of clarity in broad policy objectives leads to an increase in uncertainty, delay in the conduct of project EA and its outcomes, and a more adversarial process. Participants suggested that strategic as well as regional IA be conducted to better understand impacts of climate change in a region and to support the implementation of policies in project EA.
If policy issues are raised during the planning phase of a project assessment, the proponent and public should have a formal opportunity under the legislation to alert the Agency, who would then be responsible for deciding whether to initiate a parallel strategic assessment process to move forward on the policy issues raised. The process for providing this direction could include the following:
- The Agency would obtain and report on policy issues raised based on consultations within government, including the review of existing related policy and Ministerial/Cabinet advice. A determination would then be made whether a policy review through a strategic assessment is warranted.
- In circumstances involving a significant policy gap, the Agency would recommend that the gap be filled by way of an open, consultative, public strategic impact assessment (sometimes referred to as the “policy off-ramp”).
In most cases, work on the proposed project assessment would continue with the scoping and information gathering phases, but would not complete the assessment until the policy gap was filled and policy direction provided. In most cases, no final project decision would be made until any significant, relevant policy gaps are filled. In some cases, a precautionary approach to the project decision would still enable the project assessment to be completed and a project decision to be made without having to wait for the completion of the strategic assessment.
Recommendations for Strategic Assessments
- The Act should include a definition of strategic assessment to clearly distinguish it from a regional assessment. We propose a definition that distinguishes a strategic assessment from a regional assessment largely based on its focus on a particular set of human activities, either a particular policy, plan or program, a particular issue, or a particular industry or sector of the economy. A regional assessment, on the other hand, would include all human activities within a given study area.
- The Act should ensure that there are clear requirements to carry out strategic assessments of key existing and proposed federal policies, plans and programs, and not just those relevant to conducting project assessments. The process to be followed (including a planning phase and an assessment phase similar to project assessments), the decisions to be made at the conclusion of the strategic assessment (with respect to the policy, plan and program itself), and how the results of the strategic assessment are to be used at the project level should also be more clearly set out. As a minimum, the new Act should set out clear regulation making provisions to address these issues.
- To implement a ‘policy off-ramp’, the Bill should include a clear articulation of:
- The opportunity to initiate the policy off-ramp;
- The building of policy considerations into the assessment process – in other words that the proponent, the Agency and interested parties should strive to identify any potential policy issues during the planning phase;
- The criteria to be applied to determine whether a strategic assessment is warranted (e.g., implication of the policy gap on sustainability pillars in relation to a project; implications of not filling the gap; potential undermining of existing policy objectives; etc.)
- The criteria to be applied to determine what happens to the project assessment and the project decision pending the conclusion of the strategic assessment (e.g., avoiding undue delay – reasonableness; potential to synchronize the project assessment or decision process with policy development; magnitude of the policy gap in relation to a project; and
- The role of government departments who will be responsible for implementing the results of the strategic assessment.
Both regional and strategic assessments offer significant potential for more effective, efficient and fair project assessments. Bill C-69 is clearly a step forward in this regard. However, more detailed legislative provisions are needed to realize the potential of regional and strategic assessments.
Professor, Schulich School of Law
 For a more detailed discussion of this approach and its role in improving cumulative effects assessments, see: M. Doelle, “Offshore Renewable Energy Governance in Nova Scotia: A Case Study of Tidal Energy in the Bay of Fundy” (available at https://ssrn.com/abstract=2480346), and J. Sinclair et al, “Looking Up, Down, and Sideways: Reconceiving Cumulative Effects Assessment as a Mindset” (available at: https://ssrn.com/abstract=2774579).
 For a discussion of federal jurisdiction on EA and the importance of separating the information gathering process from decision making, see J. MacLean et al, “Polyjural and Polycentric Sustainability Assessment: A Once-in-a-Generation Law Reform Opportunity” (available at: https://ssrn.com/abstract=2839617).
 For proposals on possible triggers for strategic assessments, see H. Benevides et al, “Law and Policy Options for Strategic Environmental Assessment in Canada” (available at: https://ssrn.com/abstract=1660403).