Note: This post was prepared jointly with my colleague, Professor John Sinclair at the University of Manitoba. 

Constitutional responsibility over environmental issues is shared between the federal and provincial governments in Canada. As a result, efforts to ensure effective cooperation have been important to the successful implementation of environmental law and policy. With respect to impact assessments, the issue is more complex. Jurisdiction, in the context of federal impact assessment (IA) reform, is about the relationship between the federal IA process and processes in provincial, municipal, Indigenous and international jurisdictions potentially affected by proposed projects, policies, plans or programs. The focus of discussion about IA jurisdictional cooperation is often on the relationship between federal and provincial assessment processes, but it is important to consider the role of other jurisdictions. The issue is further complicated by the need to consider not just project assessments, but also regional and strategic assessments.

In this post, we consider the progress made under Bill C-69 toward the adoption of an effective legislative framework for cooperative impact assessments. We consider this question in three stages. We first summarize the recommendations of the Expert Panel on federal reform with respect to cooperation and harmonization with other jurisdictions and processes. We then consider the changes reflected in Bill C-69 compared to the current process under CEAA 2012. Finally, we conclude with our assessment of the effectiveness of the proposed changes and recommend adjustments to ensure meaningful progress toward effective, efficient and fair cooperative assessment processes.

What the Expert Panel Said About Cooperative Assessment

The Expert Panel was clear in recognizing and endorsing cooperative assessments that involve not just all affected jurisdictions, but also Indigenous communities and other key interests (such as environmental groups and local communities) in the design and implementation of an assessment as the preferred approach to jurisdictional cooperation and harmonization. Over 600 of the submissions to the Panel made reference in some way to multi-jurisdictional assessments and the vast majority of these noted the need for cooperation and the advantages of the “one project – one assessment” principle.

The Panel made two broad recommendations for achieving greater cooperation.

1. Co-operation be the primary mechanism for co-ordination where multiple impact assessment (IA) processes apply^[1]

The Panel recommended cooperative arrangements among “all relevant jurisdictions” as the preferred method of jurisdictional cooperation. The Panel noted existing and past cooperative agreements between the federal government and many provinces as evidence that this is possible, and clearly preferred a focus on cooperation on an assessment-by-assessment basis for project, strategic and regional assessments.

The success of Joint Review Panels in the past was a significant driver for the Panel’s approach, recognizing that the cooperation achieved in Joint Review Panels has served to produce the most efficient, effective and fair assessments under the current and previous federal EA legislation. Literature on this topic in the Canadian context also supports the notion of project-by-project agreements being the most viable approach. [2]

2. Substitution be available on the condition that the highest standard of IA would apply^[3]

The Panel opted to recommend that substitution should remain an option. The Panel specifically defined what substitution means as follows: “When an EA law or process of one jurisdiction (A) is substituted for an EA law or process of another jurisdiction (B). The process of jurisdiction A is applied to meet the obligations of jurisdiction B. Jurisdiction B makes its decisions based on the results of A’s process.”^[4] The Expert Panel established a list of criteria as safe guards to be considered for the application of substitution to “ensure the principle of harmonization upward”, including:

1. Sustainability-based scope of issues based on criteria identified in the Planning Phase.
2. Transparent and accessible information.
3. Comparable opportunities for public engagement.
4. Active engagement of federal experts and federal regulators.
5. Delegation of procedural aspects of the duty to consult.
6. The principles of UNDRIP, specifically consent, reflected into decision-making.
7. Integration of independent science throughout the impact assessment.
8. Meeting existing commitments set out in co-management or consultation agreements.

The Expert Panel explicitly rejected the application of delegation, equivalency and separate parallel assessments, all of which it regarded as unviable.

What Bill C-69 Says about Cooperation

Bill C-69 is a clear departure from CEAA 2012’s focus on delegation, substitution, equivalency, and narrow scope of federal assessments as the preferred approach to harmonization in case of multiple jurisdictions.  The Bill includes a number of provisions aimed at cooperation. A cooperative approach is noted in defining the purpose of Bill:

“to promote cooperation and coordinated action between federal and provincial governments, and the federal government and Indigenous governing bodies that are jurisdictions, with respect to impact assessments”

“to promote communication and cooperation with Indigenous peoples of Canada with respect to impact assessments”

The Bill seeks to implement these purposes in a number of sections. The basic approach is to offer opportunities for cooperation in the assessment of designated projects. The concrete tools the Bill proposes for achieving cooperation are consultations during the planning phase, substitution, and joint review panels. For the early planning phase the Bill establishes that the Agency:

“must offer to consult with any jurisdiction that has powers, duties or functions in relation to an assessment of the environmental effects of the designated project and any Indigenous group that may be affected by the carrying out of the designated project”

Section 21 of the Bill outlines the responsibility of the Impact Agency and the Minister to consult and cooperate. The Agency or the Minister must offer to “consult and cooperate” with respect to the impact assessment of the designated project with other jurisdictions. ‘Jurisdiction’ is defined broadly and in some detail in the Bill, and includes a number of potential governing bodies such as a co-management body and Indigenous governing body, in addition to the provinces, any federal authority, the Offshore Boards, etc.

Provisions for substitution are set out in sections 31 – 35 of the proposed Bill, with specific criteria set out in section 33(1). These sections give the Minister the authority to substitute the federal process for assessing the effects of designated projects with that of another “jurisdiction” (as defined in the Bill) if the Minister is of the opinion that that jurisdiction’s process would be an appropriate substitute. These provisions specify that the Minister must provide public notice of any request for substitution, invite public comment on any substitution and consider any comments received from the public on a substitution. Lastly, the Mister must post notice of any substitution decision.

The potential for agreement to jointly establish a review panel is outlined in Section 39 of the proposed Bill. This section gives the Minister the discretionary power to enter into an agreement or arrangement with any other jurisdiction (broadly defined in the Bill) respecting the joint establishment of a review panel as well as the manner in which the review would be conducted by the panel. This discretion does not extend to designated projects regulated under the Nuclear Safety and Control Act or the Canadian Energy Regulator Act. Any agreement made under this section must be posted on the registry.

Law Reform Recommendations

We support the notion of jurisdictional cooperation as the preferred manner of harmonizing the assessment processes of multiple jurisdictions, particularly between the federal and provincial assessment processes. It is our conclusion, however, that to be successful, Bill C-69 will need to be amended to more clearly establish cooperation as the default and preferred method of multi-jurisdictional assessment. In particular, amendments are needed to create incentives for all jurisdictions to prefer a cooperative approach and to be motivated to participate effectively and constructively to ensure “one project, one meaningful assessment”. This could be best achieved through legislative direction that cooperative assessments will require the active involvement of the federal government, in combination with clarity that in the absence of a cooperative approach, the federal government will proceed with its own comprehensive assessment in a manner that ensures it has the information it requires to make an informed decision about the contribution to sustainability of a project, policy, plan, or program. It would also be helpful if the Bill clearly established the goal of conducting one collaborative assessment actively involving all potentially affected jurisdictions wherever possible. 

In this regard, there is no clear direction in the Bill about the types of agreements the Federal Government should enter into that might help to promote cooperation over other forms of harmonization. Experience shows that bilateral agreements offer a good foundation, and that these general agreements should focus on establishing broad principles that can be used to focus individual assessment agreements, without predetermining or limiting the ability of the early IA planning process to lead to agreement on a cooperative approach to any individual assessment. Bill C-69 should provide for and clarify the foundational value of both bilateral agreements outlining the general approach a jurisdiction agrees to take to cooperative assessments with the federal government, and the need for specific agreements for individual assessments.

In our previous post on public participation we recommended amendments to ensure the creation of a Multi-Interest Planning Committee (MIPC) for the early planning phase. We think this committee would be the best place to develop the assessment-specific jurisdictional agreements. The Bill should be amended to establish the MIPC as the main vehicle for implementing a cooperative impact assessment approach by establishing this as part of its legislative mandate. Its job would be to design the cooperative assessment process for a particular project, strategic or regional assessment. The basic idea is that for any assessment, each jurisdiction contributes to the collective understanding of the contribution to sustainability of a project, policy, plan or program. The assessment-specific cooperation agreement would be developed by the MIPC early in the planning process.

The retention of substitution, and the provisions for it in the IAA in particular, are not consistent with the goal of encouraging cooperative impact assessment and in fact will risk encouraging provinces to aim to negotiate their IA process as the lead process. At a minimum, the Bill should be amended to make the process for substitution more transparent by requiring that the need for a substitution be clearly articulated by those advocating for it, by making these arguments open to public scrutiny and by requiring the Minister to provide reasons for the substitution decision and how the public’s input was taken into account in making that decision. This would require going beyond the current requirement in the Bill to publish a notice of the decision.

• The safeguards recommended by the Expert Panel for the use of substitution in the form of its proposed criteria^[5] should be included in the Bill, and should be further elaborated through regulations.
• Section 39(2), which does not allow the establishment of Joint Review Panels with other jurisdictions in cases involving the Nuclear Safety and Control Act and the Canadian Energy Regulator Act (energy regulators), should be deleted. Provinces and Indigenous jurisdictions must be allowed to collaborate on all assessments by review panel, including those involving “energy regulators”.
• The participant funding provisions in the Bill should be modified to include the availability of funding in cases where a substituted assessment is approved.

Conclusion

Jurisdictional cooperation will continue to be an ongoing challenge in federal IA in Canada and will be all the more important under the proposed Bill given the broader scope of federal assessments, and the range of jurisdictions the federal government will want to cooperate with in any given assessment. It is our conclusion that great care and attention will have to be taken in the early planning phases to ensure that effective, efficient and fair cooperative mechanisms are put in place. This can be achieved through the prior development of general bilateral cooperation agreements with various jurisdictions (as has been done in the past), followed by assessment-specific agreements developed by the MIPC. The Act should be clear that substitution should be used only as a last resort and under the strict conditions outlined above, in order to ensure that public trust in the federal IA process and federal decision making is regained and maintained.

 

Meinhard Doelle,

Professor, Schulich School of Law

 

^[1] Expert Panel Report, Building Common Ground, (April, 2017) at 3 and 24.

[2] See, for example, Fitzpatrick P.J. and Sinclair, A.J. 2016. Multi-jurisdictional environmental assessment. In Environmental Impact Assessment: Practice and Participation. Third edition, K.S. Hanna (ed.). Toronto: Oxford University Press, pp. 354-372.

^[3] Building Common Ground, at 3 and 26.

^[4] Building Common Ground, at 23 (citing Professor Emerita Arlene Kwasniak).

^[5] See the 8 criteria proposed by the Expert Panel listed above. For a full discussion, see Building Common Ground, at 25.