Second Annual Meinhard Doelle Legacy Lecture: Fostering Sustainability Takes a Village by Anna Johnston

November 15, 2024 Sara Seck Leave a Comment

The second annual Meinhard Doelle Legacy Lecture was held on September 19 co-hosted by MELAW and the College of Sustainability. We were delighted that Anna Johnston of West Coast Environmental Law agreed to share her expertise with us. The lecture is available to watch on YouTube. Or, see below for the text of Anna’s full talk:

Fostering Sustainability Takes a Village: The Collaborative, Relational, Future-Oriented Potential of Impact Assessment

Second Annual Meinhard Doelle Legacy Lecture

by Anna Johnston

September 18, 2024

Introduction

It is a tremendous honour to be here in Mi’kma’ki, the ancestral and unceded territory of the Mi’kmaq people. Many thanks to the Marine and Environmental Law Institute and the College of Sustainability for hosting this event.

I’d like to recognize Meinhard’s family, his wife Wendy and his daughters Alida and Nikola, who are here tonight, and his daughter Klara who may be listening in from Ottawa. I’d like to also recognize his friends and colleagues who came from around the country to honour Meinhard’s legacy and keep the momentum of his work going.

This is a talk about impact assessment (IA), but it’s also a lecture in Meinhard’s name, so I’m going to speak about both – about a vision of how IA can help put us on a more sustainable, just and community-driven path, and also about how Meinhard’s thinking and his values have inspired that vision.

Meinhard was my advisor when I did my master’s here at Dalhousie. Before that, he was a colleague and a mentor, and I was privileged to consider him a friend. I didn’t know him nearly as well, or for nearly as long, as many of you here tonight did, and certainly not for long enough, but he helped shape not just my thinking about environmental law but my ability to think, as well as how I see and try to show up in my work.

I first met Meinhard in 2015, when we had a brand-new federal government that promised to replace our faulty impact assessment regime with a new, fairer and more robust one. We were part of the same group of impact assessment experts, practitioners and participants, the Environmental Planning and Assessment Caucus of the Canadian Environmental Network. I had only been a member of the Caucus for a couple of years and my experience with IA was limited to representing clients in two, the Site C dam in BC and an oil sands project in Alberta. Meinhard had been a member of the Caucus for over 20 years, had co-chaired it on and off, and knew IA inside out. He had been a panel member on the environmental assessment of the Lower Churchill hydroelectric project and a member of the technical advisory group that led the strategic IA of tidal energy in the Bay of Fundy. He’d written the book on environmental assessment and had just come out with a paper with two other IA luminaries, Bob Gibson and John Sinclair, proposing a model of next-generation environmental assessment for Canada.[1]

My organization, West Coast Environmental Law, had been a leading voice in environmental impact assessment law for decades, and so even though I was a junior lawyer, I was the lead in our participation in the review of the federal IA regime. Thanks to West Coast’s reputation we were able to host a summit of IA experts from around the country to seek consensus on what the core components of a new federal assessment law ought to be, and then to build support for that vision among the broader public and key officials.

To say that I felt out of my depth is an understatement.

But what I quickly learned is that this community of experts and practitioners that we are a part of is an incredibly supportive one that welcomes newcomers and values an array of voices, from members of grassroots community groups to scientists to activists. Meinhard was not the only one with those values, but as a lawyer and an academic, and with his extensive experience, his humility and drive to support others and foster community never ceased to amaze and inspire me.

The themes that I’m going to touch on tonight are both values that I observed in Meinhard and ways of approaching impact assessment that may restore its promise as a tool for supporting informed environmental decision making that helps us advance towards a shared vision of a greener and more just future.

I say restore its promise because impact assessment may be at a crisis point. Once seen as a cornerstone of sound decision-making that had the general buy-in of politicians of all stripes, impact assessment has become a deeply partisan issue that some parties have put in their crosshairs, promising to erode it into a twelve-month checkbox exercise devoid of meaning or effect, or to simply do away with it entirely. In the last decade and a half, the federal government has gone from requiring assessments of thousands of projects and activities that harm the environment every year to just a dozen or so of the biggest and most destructive projects. Assessments have become less focused, less participatory, and more driven towards project approval with perhaps some tweaks to justify their impacts, so long as those tweaks do not come at too high a cost to proponents. Provincial premiers would by and large prefer to accuse the federal government of duplication and jurisdictional overreach than to address those issues through cooperation and coordination. And Indigenous peoples have found their voices, their laws and their rights so sidelined in Crown assessments that they have begun to conduct their own IAs.

A few years ago, Meinhard and I were lamenting the state of impact assessment in Canada. After years of advocacy for better processes based on extensive experience with assessments dating back to the 70s, politicians and officials seemed inclined to give up on IA rather than try to improve it. I had not been doing this work for long and already I was becoming disillusioned. If this government, the most environmentally friendly one we’ve arguably ever had, doesn’t believe in impact assessment, what chance did we stand in restoring broader buy-in to it?

Characteristically, Meinhard was less pessimistic than me. He just said, “So maybe we need to come up with a different model, something they will accept.” I assumed he had that model up his sleeve and asked him what it was, but he said that’s what we needed to figure out.

I’ve been thinking a lot since that conversation about what an alternative model to impact assessment might look like. Where I’ve landed so far is that while I agree that we may need to change tactics, I do not think we need to reinvent the wheel.

Impact assessment as a concept is sound. Look before you leap. Get informed about environmental decisions before they are made, and make sure they help achieve environmental, social and economic goals. Respect Indigenous rights and knowledge. Let people have a say about decisions that affect them. Prevent problems before they occur rather than get stuck cleaning up unwanted messes. All solid concepts.

But I think Meinhard was right that we need to come up with a better vision of impact assessment, one that can be co-designed with Indigenous peoples so that it respects their rights and decision-making authority, one that trusts the public’s knowledge and that the public in return trusts will protect their well-being and the well-being of future generations. A model that ensures that the decisions we make today will safeguard the ecological systems we depend on for decades and centuries to come.

Meinhard had done a lot of thinking about a better kind of assessment that was participative, credible and based on sustainability imperatives. What I am going to present tonight are ways to deepen that vision of next generation impact assessment by applying some core values that I observed in Meinhard’s work.

1. Recognize all jurisdictions

The first is that as a starting place, impact assessment needs to recognize and respect the inherent jurisdiction of Indigenous peoples in Canada.

The United Nations Declaration on the Rights of Indigenous Peoples recognizes Indigenous peoples’ authority, such as the right to self-determination and the right to exercise decision-making authority.[2] It also commits states to good faith consultation and cooperation with Indigenous peoples to achieve their free, prior and informed consent.[3] Canada’s constitution recognizes and affirms the “existing aboriginal and treaty rights of the aboriginal peoples of Canada,”[4]which the Supreme Court of Canada has confirmed may include the underlying title to their territories.[5] And many argue that the rights of Indigenous peoples protected in section 35 include the rights recognized in UNDRIP.

Since time immemorial, Indigenous laws have been used to govern how people interact with and sustainably use territories and the resources within them. Indigenous jurisdiction was not extinguished by colonization – it continues to this day, and there is a growing recognition in Canadian Crown law that that Indigenous peoples’ ability to exercise their laws, including their decision-making authority about projects, is an aspect of international and constitutionally-protected Indigenous rights.

Despite this reality, Crown environmental decision-making has largely excluded Indigenous authorities, perpetuating colonization’s marginalization and alienation of Indigenous peoples from governance and economic prosperity. In addition to the overt denial of Indigenous jurisdiction, Crown assessments tend to operate to prevent Indigenous peoples from deciding whether to grant or withhold consent. Things like mandatory timelines, culturally inappropriate consultation, unbalanced power structures, inadequate notice, lack of sufficient funding and a bias towards western science pose often insurmountable obstacles to nation-to-nation dialogue and jurisdictional cooperation.[6]

As a result, Indigenous peoples are increasingly exercising their rights and sovereignty by undertaking their own impact assessments. From the Tsleil-wa-tulth Nation’s assessment of the Trans-Mountain pipeline, the Stk’emlúpsemc te Secwepemc Nation’s assessment of the Ajax Mine, the Squamish Nation’s assessment of Woodfibre LNG, or the Kebaowek and Kitigan Zibi Anishinabeg First Nations’ assessment of a proposed nuclear waste facility beside the Ottawa River, Indigenous peoples are designing their own processes that allow them to exercise their decision-making authority according to their own laws and protocols.

As the Truth and Reconciliation Commission held, Crown governments must approach their relationships with Indigenous peoples as nation-to-nation ones and fully respect Indigenous peoples’ rights. What that means for impact assessment is stopping treating Indigenous peoples as participants and starting to co-design processes for collaboration on assessments and decisions.

2. Be mainstreamed into all environmental decision making and governance

My second proposition is that we need to break free from this notion that impact assessment is only for the biggest projects with the most potential for environmental harms. Our greatest challenges – climate change, the biodiversity crisis, the plastics crisis, the ongoing colonization of Indigenous peoples – are not single-source problems. They are caused by countless decisions that contribute to cumulative effects that push us past tipping points, and addressing those challenges can only happen if we mainstream sustainability and decolonization imperatives into every aspect of our governance systems.

This notion is not new to impact assessment. As Mark Winfield writes, IA emerged in the 1960s and ‘70s out of a growing awareness that “the institutionally and legislatively fragmented approach to the management of environmental issues was unable to provide comprehensive perspectives on the potential environmental impacts of proposed projects.”^[7]

Canada’s first IA regime, the Environmental Assessment and Review Process, applied to all “initiatives, undertakings and activities for which the Government of Canada had a decision-making responsibility” and that might cause environmental effects. It applied to both physical works as well as policies, plans, programs and agreements.^[8] Similarly, the 1992 Canadian Environmental Assessment Act required assessments of thousands of projects and activities every year that needed a federal approval, occurred on federal lands, received federal funding or had a federal proponent.^[9]

The need for comprehensive environmental impact assessment regimes is recognized internationally, as well. The Convention on Biological Diversity commits state parties to having environmental impact assessments of not just projects, but also programs and policies that are likely to have significant biodiversity effects.[10] The Global Biodiversity Framework under the Convention, which Canada took a leading role in negotiating, takes this commitment even further, requiring states to “ensure the full integration of biodiversity and its multiple values into policies, regulations, planning and development processes, poverty eradication strategies, strategic environmental assessments” and project-level impact assessment.[11]

In May, the International Tribunal for the Law of the Sea delivered a groundbreaking advisory opinion on state parties’ climate change obligations under the United Nations Convention on the Law of the Sea, finding that state parties have legal obligations to implement measures to prevent, reduce and control greenhouse gas (GHG) emissions.[12] Those measures include laws for assessing the climate effects of projects and activities.

And yet, most projects and activities in Canada do not go through an impact assessment. Some provinces, like Ontario, do not require IAs of private sector projects at all. Others focus assessments only on select projects deemed to have significant effects. When in 2012 we scrapped thousands of federal assessments per year, we lost a crucial piece of oversight for projects that cumulatively affect things within federal jurisdiction, such as fish, threatened and endangered species, migratory birds and the health and navigability of our lakes and rivers.

When I was engaging in the federal IA review from 2016 to 2019 and speaking with officials about the need to restore assessments for all environmentally risky undertakings, the most common counterargument I was given was that IA either did not add value to environmental decisions, or its value was not commensurate with the amount of time and resources it took. It had become formulaic, bloated, and polarizing. The minor screenings of smaller projects like wharves and culverts had become little more than check-box exercises, and comprehensive assessments had ballooned into tens of thousands of pages information that hardly anyone had the time or expertise to read. Politicians wanted to be able to say they were helping get shovels in the ground and officials did not want to be burdened with responsibility for processes dealing with effects they considered trivial.

But the effects of smaller projects are not trivial, and what some call “small” projects are in fact not small at all. Sockeye salmon are at a crisis point in BC because of death by a thousand cuts. Caribou across Canada’s boreal forests and from the Arctic tundra to our southern mountain ranges are at risk because of habitat loss caused by activities like forestry and oil and gas operations that fly under the impact assessment radar.

Indeed, our biodiversity is in freefall. Between 1970 and 2014, mammal populations in Canada dropped 43 percent, amphibian and reptile populations dropped 34 percent, and fish populations declined by 20 percent.[13] In that same time period, species assessed as “at risk” in Canada saw their populations decline by 59 percent.[14] As of May 2022, 841 species have been assessed by the Committee on the Status of Endangered Wildlife in Canada as extirpated, endangered, threatened, or of special concern.[15] Habitat loss due to myopic and disjointed decisions that consider cumulative effects inadequately or not at all is a major driver of that decline.

Instead of looking for solutions, instead of rediscovering the spirit of IA and seeking ways to bring meaning to it, instead of coming up with a design that would allow it to be tailored to different circumstances and proportional with the scale of potential effects, we threw the baby out with the bathwater. And we did so at arguably the worst time in human history to give up on such an important environmental tool. The climate, biodiversity and plastics crises demand urgent action. That action, in turn, demands transparency, it demands careful planning, and it demands deliberative and inclusive dialogue.

Impact assessment exists because narrowly-focused and un-participatory regulatory approval processes – things like Fisheries Act authorizations, Navigable Waters Act permits and the explosives approvals that the federal government must issue mining companies before they can blast mountains apart – are designed to approve projects with standard mitigation measures for a set of impacts limited to one focus area, like fish or water quality, and not the whole suite of a project’s interrelated and intersecting impacts. They also do not transparently evaluate whether a project should be allowed to take up public resources and wreak havoc on the environment, or whether or how to ensure the fair distribution of any benefits of causing that harm.

Jocelyn Stacey argues that the widespread rollback of federal environmental laws was an “attempt to exempt environmental decision-makers from the basic requirements of a democratic conception of the rule of law.”[16] According to Stacey, to remain committed to the rule of law, democratic governments must publicly justify decisions that affect people and the environment on the basis of core constitutional principles like fairness and reasonableness. As the only environmental decision-making tool with broad participation and decisions that must be made public, impact assessment is a critical way for the public to hold governments to account and ensure that decisions are helping to advance reconciliation and meet our climate and biodiversity targets.

Meinhard, along with John Sinclair and Peter Duinker, proposed reconceiving cumulative effects assessment as a mindset.[17] A core assumption of this mindset is that every interaction between a human activity and a component of the environment will have a cumulative effect unless convincingly demonstrated otherwise. We know that the most important effects are cumulative effects, and we also know that most human activities will at some point contribute to cumulative effects, so let’s centre cumulative effects in our evaluations and decisions rather than tacking them on as an afterthought.

I would like to offer the similar proposition that we need to adopt an impact assessment mindset, one that assumes that impact assessment should be required before an environmental decision can be made unless it can be convincingly demonstrated that an assessment is not necessary. We know that IA is our best tool for ensuring that project-level decisions align with our reconciliation and sustainability imperatives. We also know that where IA has not in the past delivered on its promises, the issues were with implementation, not the fundamental concept. So let us centre impact assessment in all decisions about projects, activities, plans, programs, policies and the allocation of financial resources – let us treat it as the rule, rather than the exception.

3. Be future-oriented

Third, impact assessment needs to be focused on the future. That does not mean that it should not also consider the past – cumulative effects assessment needs to include a thorough understanding of the impacts of past and existing activities, how those activities have altered species and systems. But it cannot stop there. To be effective, IA needs to be oriented towards a vision of a desired future.

Project-level assessment is like a compass – you use it to help you get to where you want to go. Which means that as a starting place, you need to figure out where you want to be ten, twenty, one hundred years from now. Otherwise, it’s directionless. If there is not a clear understanding of the desired states of future environmental and socio-economic conditions, then an impact assessment cannot be used to evaluate the extent to which the project will help or hinder your ability to achieve those desired states.

For as long as we have been doing impact assessment, we have known that it must be applied at the regional and strategic levels as well as to project decisions. We have known for decades that responsible environmental decision making can only truly occur in the presence of land use plans and when it is tiered with regional and strategic assessments above it and regulatory decision making below it. As Meinhard conceived them, regional and strategic assessments are the tools for setting the strategic direction for a region, a watershed, a class of projects or a policy direction, and project-level assessment is the tool for implementing that vision.[18]

But as long as there has been recognition of the need for higher-level assessment and planning, there have been excuses for avoiding them. As a result, project-level impact assessment is almost always done without a map to guide where decisions should take us. To break this cycle, we need to create off-ramps.

Meinhard wrote about the need for off-ramps back in 2006,[19] and more recently recommended it to the Senate environment committee when it was reviewing Bill C-69, the proposed Impact Assessment Act.[20] What he recognized was that when people show up to participation opportunities, when they take the time to write submissions or come to a hearing, they want – and deserve – to talk about issues of concern to them. Impact assessments offer a rare opportunity to talk about environmental, social and economic concerns in a way that feels concrete. A mine might create jobs, but who gets those jobs and how long they last might trigger a broader conversation about fairness or fears of another boom-and-bust cycle. A new dam is not responsible for the effects of all the other activities that came before it and harmed the river, but its assessment might trigger conversations about who is responsible for cleaning up the watershed and paying for past harms. Those questions may be outside the scope of any given project assessment, but instead of sweeping them back under the rug, an off-ramp would help ensure that an appropriate venue for those conversations is created.

Aaron Bruce, a Squamish First Nation lawyer and architect of the Squamish Nations’s assessment of the Woodfibre LNG project, similarly argues that all assessment processes should include off-ramps for dealing with issues related to Indigenous rights and authority that need to be addressed in order for Indigenous peoples to be able to decide whether to give their free, prior and informed consent to a given project.

In other words, impact assessments should include off-ramps both for when a project assessment is triggered in the absence of strategic direction set by high-tier assessments or land-use planning, as well as for when valid issues are raised in a project assessment that lack an appropriate venue for dealing with them. Not only would the off-ramp be a means of triggering those planning processes or broader conversations, it would also put project-level assessment on hold until decision makers have the direction they need to assess whether and to what extent the project aligns or misaligns with our shared vision of the future.

When, in the 1970s, Justice Berger held his inquiry into a proposed natural gas pipeline that would run through the Yukon and the Mackenzie River Valley of the Northwest Territories, he recognized that the assessment was not just about a pipeline; it was “a debate about the future of the North and its peoples.”[21]

A lot of projects trigger conversations about their broader ramifications and the future of regions. Today, we have dams flooding river valleys in the name of cheap electricity but that may actually be used to electrify LNG instead of peoples’ homes; we have roads that would open Ontario’s Far North to development that could significantly disrupt one of the biggest carbon stores on Earth; we have mines claiming to be critical with zero inquiry into those claims; we have transmission lines proposing to service those mines with no consideration of what other industrial activities might be drawn to the new source of power; and we have thousands of smaller but still cumulatively impactful activities being approved each year with little or no thought to whether they help us get to where we want to be.

We cannot keep letting officials kick the regional and strategic assessment can down the road so that they can keep getting away with politically convenient decisions that favour the short-term economic interests of a few over the long-term environmental and socio-economic needs of everyone. An off-ramp would incentivize if not force officials to undertake regional and strategic assessments so that they have to evaluate whether and how a project will help us get to where we go, even when the political will is lacking.

4. Be independent of politics

Which leads me to my fourth point. I am increasingly convinced that we need to divorce environmental decision making – and therefore impact assessment – from politics. Canada is no stranger to independent tribunals making regulatory decisions and adjudicating disputes. The CRTC regulates and supervises broadcasting and telecommunications, the Canadian Energy Regulator approves and regulates pipelines and transmission lines, and the Canadian Nuclear Safety Commission regulates nuclear projects.

But most environmental decisions in Canada are made by elected representatives and are therefore highly discretionary in nature. We know from fifty years of environmental decision making that these decisions overwhelmingly favour the economy over environmental protection or Indigenous rights, even when the economic benefits are spurious or will only accrue to a few. From large-scale dams like the Lower Churchill or Site C, to tar sands projects you can see from space, elected officials are failing to protect the environment to a degree that cannot be sustained. As Meinhard wrote in a 2019 blog on the future of environmental law, “we are fundamentally mismanaging… our relationship to nature…” and this “depletion of natural resources and the destruction of natural systems is… the result of poor choices.”[22]

Let’s try a new model, one that takes environmental decisions out of the realm of politics and into the hands of authorities that have clear mandates to protect Canadians’ health, respect Indigenous peoples’ rights, and ensure decisions align with sustainability objectives.

We would not be the first – New Zealand’s Environmental Protection Authority is an independent agency that reports to the environment minister but that is responsible for regulating things like hazardous substances, emissions and marine activities. In 2022, it launched a 3, 30 and 300-year strategy to guide its work and measure its progress.[23]

Australia has proposed a similar entity to be responsible for regulatory and implementation functions of its main environmental law.[24]

Unlike elected representatives, toward whom the courts tend to give broad deference, unelected tribunals can be more easily held to account if they do not follow policy direction or our numerous climate, biodiversity and environmental obligations and commitments.

I am not suggesting that there should be no role for elected representatives in environmental regulation – in a democracy, it is proper for Cabinet to establish the regulatory framework that governs environmental decision making. What I am proposing is that we might have a better chance of actually achieving our environmental law and policy objectives and following a sustainable path if day-to-day decisions were made by an independent and unelected authority mandated to achieve those goals.

I am also not suggesting that an independent agency would be without risk – the former National Energy Board was widely criticized for being a captured regulator, and the Canadian Nuclear Safety Commission faces similar accusations of favouring industry over public safety. But we know the current model is not working, and being aware of pitfalls helps us avoid them. An independent tribunal could be co-established with Indigenous peoples as a means of upholding and respecting Indigenous jurisdiction and advancing reconciliation. There are numerous models north and south of 60 to learn from. So let’s try.

5. Be a team sport

Fifth, impact assessment has to be a team sport. Identifying and implementing that shared vision of a desired future I talked about must be a collective exercise that is inclusive of all the voices who stand to be affected.

Meinhard was a community builder. He deeply valued and supported collective action and approached his work as a lawyer and an academic with humility. I mentioned in the introduction that our Environmental Planning and Assessment Caucus has a wide variety of members ranging from academics to scientists to grassroots participants. It is not always easy for people with vastly different backgrounds and experience to understand each other, but Meinhard had an incredible ability to really hear what people were trying to say, whether they were a scientist, another lawyer or a member of a scrappy little environmental group with no formal education in impact assessment but with experience as a participant and a deep commitment to their local environment.

A few years ago, we were drafting an agenda for a two-day Caucus meeting. Our main objective was hammering out our consensus recommendations for the core provisions of the new Impact Assessment Act, and our agenda was packed. I suggested cutting a longstanding agenda item we call the hotspots go-round, when everyone takes turns talking about issues they are dealing with in their communities or their work. I wanted to get to the juicy law reform bits and thought we could skip the part where we all gripe about how proponents and governments are mucking things up.

Meinhard disagreed. He said that the hotspots go-round was one of the most important parts of our meetings because it lets everyone give voice to things that are important to them and helps us understand each other and our work better.

And he was right. I’ve since realized that those roundtable conversations where people get to air the issues that are top of mind for them and help each other explore solutions are an incredibly valuable way of building community and harnessing the power of collective thinking. They are also the way for those of us working from offices to know what is happening on the ground.

Impact assessment is similarly vastly improved with meaningful dialogue among various actors. If we’re not including the voices of local community members, of youth, of different populations, how can we expect to understand local priorities and risks? You do not need to be a scientist to know where certain species are – hunters, trappers and fishers who are out on the land often have deeper knowledge of the local environment than consultants can ever hope to have. Similarly, if we do not deeply engage independent scientists and government experts, if we predominantly rely on whatever information proponents give us, we know that we will have less comprehensive and less credible information on which to base decisions.

Instead of treating participation and engagement as a check-box exercise, impact assessment needs to embody the understanding that everyone has something to contribute, and that meaningful engagement takes deliberative dialogue based on mutual respect and learning. To implement that mindset, we have to let go of the old model where the assessment authority operates behind closed doors, asking for occasional submissions and then summarizing information in a report.

We need to turn impact assessment into a collective exercise, one in which concentric and overlapping circles of working groups collaborate on things like identifying issues of concern, what priorities to focus, what studies need to be conducted and reviewing those studies to make sure they’re accurate. The working group model is far from new – Meinhard and others have advocated for it for years, and it’s been used sporadically here and there – but the general rule is the assessment authority runs the show and participation is a step in the process, not the process itself.

In my visioning of it, there would be various working groups, such as a working group of independent experts, a working group of community members and environmental groups, a working group of health experts and authorities, a working group of youth to ensure that the needs of the future are being met, and more, all involving the proponent and decision-making authorities and all meeting regularly to ensure a cooperative approach. These various working groups would meet with themselves and with each other to ensure crossflow of information, and they would receive the financial and other supports they need to be effective and ensure mutual learning.

These working groups would not end when a decision is made – they should carry onto into implementation, monitoring and follow-up to ensure not just rigorous oversight but also to make sure that we’re learning from our experience.

The Stk’emlúpsemc te Secwepemc Nation’s assessment of the Ajax Mine in BC used a similar model. The foundation of the assessment was a panel comprised of family representatives of each of the 13 families in the Nation. It involved youth and elders and resulted in the creation of an intern program to continue to build capacity and teach students what they call Walking on Two Legs, or a way of bringing both science and Indigenous knowledge into environmental governance.[25]

Meinhard knew that advancing sustainability requires supporting and empowering community leaders, students and each other. In that same 2019 blog on the future of environmental law, he said that in order to be able to address the environmental challenges ahead, we need to give students “the tools for critical analysis so that they can diagnose… problems… in light of ever changing circumstances and find their own solutions.”

Impact assessment is both a means and a beneficiary of building and sharing knowledge and analytical skills. Its participation opportunities are a way for us to equip each other, including younger generations, with information and skills for preventing harms and enhancing benefits, and it is also much more effective when it is informed by diverse knowledge and thinking.

6. Find the possible

And finally, we must constantly be seeking out and finding what is possible.

We are facing what can easily feel like insurmountable challenges. The climate crisis is well upon us, as we are all witnessing in catastrophic wildfires, floods, landslides, major storm events, and community evacuations. Species are declining at an unprecedented rate and we have barely begun to turn our attention to the plastics choking our waters and invading our bodies. At the same time, environmental protection has become a deeply partisan issue, with parties and industries around the world continuing to deny the reality of climate change and the need to abandon the lunacy of an economic model premised on the delusion of infinite growth.

It is easy to feel daunted. But perhaps the thing I admired most about Meinhard was his seemingly tireless ability to break complex problems down into manageable parts, to untangle issues in order to make them approachable, and then to find straightforward and simple solutions for them. He did not pretend to have all the answers, but he did stress the need to try. One time, we were talking about barriers to regional assessment that we had heard from federal officials, such as pushback from uncooperative provinces worried about jurisdictional overreach and too much time and money to build out an assessment to a regional scale. I was struggling to find compelling arguments for why the federal government should do it despite these challenges. Meinhard’s response was to simplify it. He said the question of manageability was a question of scoping. You do not have do all or nothing. If there’s a risk that a province would challenge a comprehensive regional assessment on jurisdictional grounds, scope it to look at just federal effects. If looking at all federal effects would take too long, begin with priority effects. You can expand the scope down the road – it’s better to begin with a more focused regional assessment than not do one at all.

In other words, find the possible. Yes, impact assessment involves complexity. Environmental components do not occur in silos, they exist in systems with interactions among other environmental effects and with human systems, interactions that we have often only begun to understand. Benefits like jobs are rarely uniformly distributed among populations and often perpetuate rather than dismantle inequities. And as we saw in the Supreme Court’s decision on the Impact Assessment Act reference,[26] Canada’s form of federalism and the jurisdictional bun-fighting that often occurs between the provinces and the federal government makes addressing these challenges even more difficult.

But those complexities do not mean that doing impact assessment well is impossible. Next generation IA is possible. We have examples of credible, participatory, sustainability-focused assessments to remind us that good is doable,[27] and the components of next generation IA model that Meinhard advocated for are also all doable. We may not get them all right all at once, but that doesn’t mean we cannot or should not pursue them. Sustainability is possible. A climate safe future is possible. Nature-positive is possible. Justice and equity are possible. And impact assessment can help us towards those goals.

Conclusion

It may be that the ways to deepen Meinhard’s vision of next-generation impact assessment are not politically or socially feasible as a package yet. We have a federal election coming up within the next year and the leader who is leading by a mile in the polls has promised to eviscerate federal IA while the government that promised to restore fair, credible and participatory assessments is now looking for ways to streamline their own regime.

But some things will for sure be possible. Students and young people can call on political parties to commit to strong environmental and climate protection, including impact assessment. Participants in IAs can form their own working groups as a means of sharing knowledge and information rather than waiting for a recalcitrant agency. Indigenous nations and civil society groups can partner on impact assessments that serve as next-generation models of success.

At the same time, we have to be continually thinking about new ways to do impact assessment better – the next, next generation of impact assessment, as Sara has coined it. We have decades of experience behind us, but we also have tremendous environmental and social challenges ahead of us.

We know that when dedicated people pool their knowledge and skills in collaboration towards a shared goal, they can be infinitely more effective than when working alone. What I learned from Meinhard and others in our Environmental Planning and Assessment Caucus, is that impact assessment is as much about relationships as it is about science or law. So when we’re thinking about the future of impact assessment – both how to design a better model and how to implement it, we need to stay focused on the possible, optimistic about its potential, and rooted in relationships and dialogue in its application.

And we need students like the ones here tonight and the ones who will come after you to join us in this work, to get involved in the ongoing evolution of IA so not only can it do a better job of addressing today’s environmental issues, it will be equipped to deal with tomorrow’s challenges, as well. We need to learn from each other and challenge each other to think more, think deeply, and think flexibly.

When we lost Meinhard, we didn’t just lose a tremendous human. The world, and those of us working to protect it lost a powerhouse contributor to our ability to generate solutions to the biggest environmental challenges of our time. Now more than ever we need to avoid working in silos and come together to generate ideas, to share our learning and experience, imagine pathways towards a sustainable future and remind each other that solutions are possible.

And so for the future of impact assessment, lets remember its successes, learn from its failures, and work together towards continuous improvement.

The ways to deepen the model I’ve proposed here tonight may work, they may not. I offer them not so much as fully-baked solutions as a way to spark ideas and in the hopes of broadening the tent of people thinking about these issues. One of the greatest pleasures of my career has been my collaborations on impact assessment and I hope some of you here tonight will find similar strength and inspiration – and sometimes solace – in collaborating on solutions to the threats to our planet and society. We need your energy, your thinking and your optimism. And so tonight I am going to leave you with a challenge, which is to think of your own ways that impact assessment can be the tool we need it to be, with the buy-in we need it to have, to put us on a more sustainable and just path. You may come up with similar ideas to me, you may come up with entirely new ones. But I am confident that what you come up with will be a positive contribution to the conversation.

Thank you.

[1] Robert B. Gibson, Meinhard Doelle & A. John Sinclair, “Fulfilling the Promise: Basic Components of Next Generation Environmental Assessment” (2016) 29 J Envtl L & Prac 25 [“Fulfilling the Promise”].

[2] United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295, UN GAOR, 61st Sess, Supp No 49, UN Doc A/RES/61/295 (2007), Articles 3-5, 18-19, 26, 29, 34, 40.

[3] Ibid, Article 32(2).

[4] The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11, s 35(1).

[5] Tsilhqot’in Nation v British Columbia, 2014 SCC 44 (CanLII), [2014] 2 SCR 257; Delgamuukw v. British Columbia, 1997 CanLII 302 (SCC), [1997] 3 SCR 1010.

[6] Aaron Bruce, Anna Johnston and Dyanna Jolly, “Indigenous Peoples’ Authority, Rights and Engagement in Impact Assessment: Experiences and Perspectives from Canada and Aotearoa New Zealand” in Handbook of Public Participation in Impact Assessment, Tanya Burdett and A. John Sinclair, eds (Massachusetts: Edward Elgar Publishing Limited, 2024).

[7] Mark Winfield, “Decision-Making, Governance and Sustainability” (2016) 29 J Envtl L & Prac 129 at 133.

[8] Rodney Northey, Canada Environmental Assessment Act and EARP Guidelines Order (Scarborough, Ont: Thomson Canada Ltd, 1994) at 22.

[9] Canadian Environmental Assessment Act, SC 1992, c. 37 at s 5(1).

[10] Convention on Biological Diversity, June 5, 1992, 31 I.L.M. 818 (entered into force Dec. 29, 1993).

[11] Decision 15/4, U.N. Doc. CBD/COP/DEC/15/4 (2022), Target 14.

[12] On the Request submitted to the Tribunal by the Commission of Small Island States on Climate Change and International Law (2024), Advisory Opinion, ITLS: https://www.itlos.org/fileadmin/itlos/documents/cases/31/Advisory_Opinion/C31_Adv_Op_21.05.2024_orig.pdf.

[13] WWF Canada, Living Planet Report Canada: A National Look at Wildlife Loss (Toronto: WWF Canada, 2017): https://wwf.ca/wp-content/uploads/2020/02/WEB_WWF_REPORT_v3-1.pdf.

[14] J. Currie, J. Snyder and E. Giles, Living Planet Report 2020: Wildlife at Risk (Toronto: WWF Canada, 2020): https://wwf.ca/wp-content/uploads/2020/09/WWF-7-x-9-LPRC_Web.pdf.

[15] Office of the Auditor General of Canada, Biodiversity on Canada: Commitments and Trends (October 2022): https://www.oag-bvg.gc.ca/internet/English/oth_202210_e_44128.html.

[16] Jocelyn Stacey, “The Environmental, Democratic, and Rule-of-Law Implications of Harper’s Environmental Assessment Legacy” (2016) 21 Rev Const Stud 1 at at 168.

[17] A. John Sinclair, Meinhard Doelle & Peter N. Duinker, “Looking up, down, and sideways: Reconceiving cumulative effects assessment as a mindset” (2017) 62 EIAR 183.

[18] Fulfilling the Promise, supra note 1; A.J. Sinclair, M. Doelle & R. B. Gibson, “Implementing next generation assessment: A case example of a global challenge” (2018) 72 EIA Rev 166.

[19] Meinhard Doelle and A. John Sinclair, “Time for a new approach to public participation in EA: Promoting cooperation and consensus for sustainability,” (2006) 26 EIAR 2 at 185.

[20] Meinhard Doelle and A. John Sinclair, “The Proposed Federal Impact Assessment Act (IAA): Assessment & Reform Proposals,” Submission to Senate Standing Committee on Environment and Natural Resources (11 April 2019) :https://sencanada.ca/Content/Sen/Committee/421/ENEV/briefs/MeinhardDoelle_Brief_e.pdf.

[21] Mr. Justice Thomas R. Berger, Northern Frontier, Northern Homeland: The Report of the Mackenzie Valley Pipeline Inquiry: Vol 1 (Minister of Supply and Services Canada, 1977) at 1: https://publications.gc.ca/collections/collection_2015/bcp-pco/CP32-25-1977-1-eng.pdf.

[22] Dr. Meinhard Doelle, “The Future of Environmental Law,” Blog (9 April 2019) Dalhousie University Blogs: https://blogs.dal.ca/cege/2019/04/09/dr-meinhard-doelle-the-future-of-environmental-law/.

[23] Environmental Protection Authority Te Mana Rauhī Taiao, “3, 30, 300 years: Our intergenerational strategy”: https://www.epa.govt.nz/about-us/our-strategy/.

[24] Australian Government, Nature Positive Plan: better for the environment, better for business (December 2022): https://www.dcceew.gov.au/sites/default/files/documents/nature-positive-plan.pdf.

[25] Stk’emlúpsemc te Secwépemc Nation, “Me7e Pípsell Ta7a Ajax Yes Pípsell No Ajax SSN Response to British Columbia’s & CEAA Environmental Assessment Office Ajax Mine Project Assessment Reports,” Media Release: https://stkemlups.ca/wp-content/uploads/2013/11/2017.08.09__SSN-Media-Release-re-Me7ePipsell_Ta7aAjax-EAReport.pdf.

[26] Reference re Impact Assessment Act, 2023 SCC 23.

[27] E.g., Canadian Environmental Assessment Agency. Ministry of Environment. Joint Review Panel Report: Foundation for a Sustainable Northern Future. Government of Canada, Dec. 2009: http://www.ceaa.gc.ca/155701CE-docs/Mackenzie_Gas_Panel_Report_Vol2-eng.pdf; Canadian Environmental Assessment Agency. Ministry of Environment. Joint Review Panel Report: Kemess North Copper-Gold Mine Project. Government of Canada, Sept. 2007: http://www.ceaa-acee.gc.ca/050/documents_staticpost/cearref_3394/24441E.pdf; Canadian Environmental Assessment Agency. Ministry of Environment. Voisey’s Bay Mine and Mill Environmental Assessment Panel Report. Government of Canada, Jan. 1997: http://www.ceaa.gc.ca/default.asp?lang=En&n=0A571A1A-1; Canadian Environmental Assessment Agency. Ministry of Environment. Lower Churchill Hydroelectric Generation Project: Report of the Joint Review Panel. Government of Canada, Aug. 2011: http://www.ceaa.gc.ca/050/documents/53120/53120E.pdf; Canadian Environmental Assessment Agency. Ministry of Environment. Joint Review Panel Report: Environmental Assessment of the Whites Point Quarry and Marine Terminal Project. Government of Canada, Oct. 2007: http://www.ceaa.gc.ca/B4777C6B-docs/WP-1837_e.pdf.

Workshop Report: Transboundary Marine Species at Risk (Canada/US)

February 22, 2024 Sara Seck Leave a Comment

On February 12, 2024, the Convention on the Conservation of Migratory Species of Wild Animals (CMS) released a landmark report on the State of the World’s Migratory Species as part of CMS COP 14. This first ever global biodiversity report focused on migratory species comes to many concerning conclusions, including that nearly half of CMS listed migratory species are showing population declines (although some are improving). More disturbingly, 97% of CMS-listed fish are under threat of extinction. Overexploitation and habitat loss combined with degradation and fragmentation are are the greatest threats to CMS-listed species. Invasive species, pollution and climate change are also having a devastating effect on species.

The fate of transboundary marine species has been on the mind of researchers at MELAW, and in December 2023 a report flowing from a joint workshop held in 2022 was posted online. A brief summary is provided below of the workshop with a link to the report.

Workshop Report, Transboundary Marine Species at Risk & Their Recovery In A Changing Climate: Taking Stock of Canadian and US Scientific and Governance Responses, Enhancing Future Cooperation, Washington, D.C., 3–4 November 2022

On November 3 and 4, 2022, a group of government officials, academics, non-governmental organization representatives, scientists and lawyers gathered at the offices of Duke University in Washington DC to deliberate upon means to improve the management of marine migratory species that cross the US and Canadian border. The convening, sponsored by Duke University, the Marine and Environmental Law Institute at Dalhousie University, the Ocean Frontier Institute, housed at Dalhousie University, and the Environmental Law Institute, provided ample opportunity for frank discussion and highlighted numerous avenues for coordination between the United States and Canada. The report summarizes the two days of meetings, presentations, and discussions.

The workshop’s objectives were to take stock of existing science, evaluate differences in national policies, and consider how to improve bilateral cooperation and conservation efforts, a need of heightened urgency considering anticipated climate change-induced distribution shifts. After two days of presentations, the workshop concluded with participants breaking up into small groups to discuss successes and challenges, as well as recommendations for the way forward. Participants were excited to highlight the strength of the informal cooperation between the two countries, in particular on North Atlantic right whale. But identified challenges were also numerous and ranged in complexity from data sharing and intragovernmental coordination to paradigm shifting needs such as incorporation of Indigenous knowledge and implementation of ecosystem-based management. Participants recognized the importance of political will and passionate, mission-driven individuals to advancement of scientific and management measures forward.

The Report succinctly captures the ideas and proposals, summarizing the presentations from each panel, and aspires to spur further discussion and action to conserve marine migratory species. It presents a comprehensive summary of recommendations focused on specific national, bilateral, regional, and global actions. These include strengthening species protection laws in both countries, unifying listing and management standards, and taking leadership roles in international forums.

From Dalhousie University, Professor David L. VanderZwaag, Canada Research Chair in Ocean Law & Governance and then Director of Marine & Environmental Law Institute, Schulich School of Law, and Professor Boris Worm, Marine Ecologist, Biology Department, were members of the steering committee and chaired panels. The Report includes, as an Appendix, the Briefing document on the Federal Legal Framework for Protecting Marine Species at Risk in Atlantic Canada, prepared by a team at MELAW – Jordan Sarah Head, Olga Koubrak and Professor VanderZwaag, with research assistance from Joanna Skrajny and Alex Hayward.

[With thanks to Devdatta Mukherjee and Olga Koubrak for the preparation of this summary.]

MD Legacy Lecture, International Law, and the IAA Reference

December 14, 2023 Sara Seck Leave a Comment

On November 23, 2023, MELAW and the College of Sustainability hosted the first annual Meinhard Doelle Legacy Lecture, featuring former colleagues and collaborators of Meinhard including myself, Bill Lahey (now President and Vice-Chancellor of the University of King’s College), and Lisa Mitchell (Executive Director and Senior Lawyer, East Coast Environmental Law). Moderated by CoS faculty Steve Mannell who worked closely with Meinhard at CoS, our roundtable discussion was centred around reflections on the past, present and future of environmental law, in light of our individual experiences working collaboratively with Meinhard in diverse contexts. The aim of this event and future legacy lectures is to inspire the next generation of Dalhousie students, whether in law or sustainability, to learn more about the possibilities of environmental law for contributing solutions to local, national and global sustainability challenges facing people and planet. A video link to the lecture can be found here, which begins with a short video clip featuring Meinhard.

One topic that Meinhard and I often discussed was the relationship between international and domestic law. Meinhard was a key thought leader in environmental assessment law, and also an expert in climate law. With this in mind, and as the COP28 negotiations come to an end, I am sharing some thoughts on a topic that would have been high on our list of conversations.

Reference re Impact Assessment Act, 2023 SCC 23: how principles of international environmental and human rights law could (and should) inform the interpretation of the IAA

By Sara Seck Sara.Seck@dal.ca

In October 2023, the Supreme Court of Canada released its eagerly – or fearfully – awaited decision in the Reference re Impact Assessment Act, 2023 SCC 23. Not surprisingly, the work of Meinhard Doelle featured prominently in the analysis of both majority and dissent. Were Meinhard still with us, we would no doubt be engaged in spirited debate over how the majority could have reached the (mistaken) conclusion they did, and what steps should now be taken. Given Meinhard’s interest and expertise in international law, however, we might also have been exchanging ideas on the topic of this blog post – whether explicit engagement by the court with principles of international environmental law as well as human rights might have led to different interpretations of the IAA, and so, different conclusions on the federalism questions.

As is by now well known, the majority of the court (Chief Justice Wagner with Justices Côté, Rowe, Martin and Kasirer) concluded that the designated projects scheme of the IAA was unconstitutional, as its ‘pith and substance’ – “to assess and regulate designated projects with a view to mitigating or preventing their potential adverse environmental, health, social and economic impacts” (para 109) – overstepped federal constitutional competence (paras 134, 204). This was for two reasons. First, the decision-making processes were not directed at regulating effects that were within federal jurisdiction. Second, the IAA’s definition of effects within federal jurisdiction did not, in the view of the majority, align with the actual legislative jurisdiction of the federal government. By contrast, Justices Karakatsanis and Jamal, dissenting in part, concluded that the pith and substance is more precisely understood as “to establish a transparent information-gathering and decision-making environmental assessment process which is focused on whether physical activities or designated projects have adverse federal effects, and if so, whether they should be permitted in the public interest, subject to any conditions” (para 257). In their opinion, the IAA and its regulations, including the entirety of the designated project scheme, is intra vires federal powers, and the IAA’s definition of federal effects is inherently sound (para 354).

The result, and implications, are being carefully analyzed in many environmental law blogs, including a particularly clear overview by colleagues at ABlawg.ca (“Wait, What!? What the Supreme Court Actually Said in the IAA Reference”). Key conclusions include that, as this decision was the outcome of a reference, the IAA still stands. Moreover, the IAA could easily be modestly amended to address the concerns of the majority. Nevertheless, some are of the view that going back to the original CEAA triggering process would be better and result in more reviews (Elizabeth May: Good Riddance to the Impact Assessment Act). There are also questions about the regional and strategic assessment processes, which are ignored in the decision (“Two wins, a loss, and a question mark: What the Impact Assessment Act reference case means for the environment”) as well as whether more attention should be paid to what actually goes on under IAA sections 81-91 which were upheld as constitutional and provide the process for assessments of projects carried out or financed by federal authorities on federal lands or outside Canada. Ultimately, the federal government has committed to amending the legislation, although exactly how remains to be seen. In the meantime, interim guidelines have been released to provide certainty for the projects currently under review under the IAA system.

Relevance of International Law?

The purpose of this blog post is somewhat different. As someone who researches at the intersection of international and domestic law, and at the intersection of environment and human rights law, one of the most striking things about the decision is that international law is entirely absent from it. This is (unfortunately) not a surprise. This fact has been commented on in an excellent blog by Robert Hamilton reflecting on missed opportunities for Indigenous peoples resulting from the SCC’s failure to clarify the scope of federal 91(24) powers, and to show how legislation can and must be interpreted in light of Canada’s international law commitments. A notable source of international law in relation to Indigenous peoples is, of course, the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), much of which, as Hamilton demonstrates, reflects customary international law. In this blog, I suggest that the failure of the majority to consider both the history of impact assessment in international law and its present-day context is problematic. Although the dissent also does not explicitly consider international law, its deeper engagement with the reasoning of Justice La Forest in the 1992 Supreme Court of Canada decision in Oldman River led to a better conclusion, in the process integrating several key international environmental law principles into the analysis albeit at times implicitly.

Curiously, the majority decision did choose to reference the right to a safe environment (as taken from a 1995 SCC decision, that cited a 1985 Law Reform Commission report) in its first paragraph. One could read this as simply an endorsement of the importance of the environment drawing upon previous precedent. But, given that Canada voted in favour of the July 2022 United Nations General Assembly resolution A/RES/76/300recognizing the right to a clean, healthy and sustainable environment as a human right (while expressing uncertainty as to its content), it equally suggests a different question – might some justices on the Supreme Court have been waiting for – hoping for – more arguments that cited sources of international law, but were left wanting?

As eloquently explored by Natasha Affolder in the McGill Law Journal some years ago with a focus on international biodiversity law, situations have arisen in the past where lawyers have argued for the relevance of international (biodiversity) law, yet judges have failed to grapple with these arguments. On the other hand, situations have also arisen in the past where it appears that judges were waiting for lawyers to clearly articulate the relevance of international (biodiversity) law, but the lawyers did not do so. Could either or both of these scenarios have arisen in the case in the IAA Reference? I do not claim to know. Nevertheless, I propose to sketch out why international law is relevant to this case, even though it is a decision on a seemingly domestic law question squarely focused on the constitutional division of powers. I will reflect on what may have been missed in the process.

Both majority and dissent in the IAA Reference refer often and favourably to Justice La Forest’s majority SCC decision in Oldman River. For those who study international environmental law and international sustainable development law, it is notable the Oldman River upholding the federal Environmental Assessment and Review Process (EARP) Guidelines Order dates from 1992, the same year as the United Nations Conference on Environment and Development (UNCED) about which more will be said below. Notably, in Oldman (p37), Justice La Forest makes the following observation:

I cannot accept that the concept of environmental quality is confined to the biophysical environment alone; such an interpretation is unduly myopic and contrary to the generally held view that the “environment” is a diffuse subject matter; see R. v. Crown Zellerbach Canada Ltd., [1988] 1 S.C.R. 401. The point was made by the Canadian Council of Resource and Environment Ministers, following the “Brundtland Report” of the World Commission on Environment and Development, in the Report of the National Task Force on Environment and Economy, September 24, 1987, at p. 2:

Our recommendations reflect the principles that we hold in common with the World Commission on Environment and Development (WCED). These include the fundamental belief that environmental and economic planning cannot proceed in separate spheres. Long-term economic growth depends on a healthy environment. It also affects the environment in many ways. … Economic and environmental planning and management must therefore be integrated.

Surely the potential consequences for a community’s livelihood, health and other social matters from environmental change are integral to decision-making on matters affecting environmental quality …

Two key points of continued relevance emerge from this passage. First, environmental quality in itself means more than the biophysical; the environment cannot be understood as separate from economy or society both of which depend on a healthy environment. Second, environmental decision-making must integrate livelihood and social dimensions (but also comply with the constitutional division of powers).

Rio Declaration on Environment and Development: Principles

The ideas evident in Justice La Forest’s text above are also reflected in the principles of the 1992 Rio Declaration on Environment and Development, one key outcome of the UNCED held in Rio that year. The Rio Declaration is comprised of 27 Principles, including Principle 17: “Environmental assessment, as a national instrument, shall be undertaken for proposed activities that are likely to have a significant effect upon the environment and are subject to a decision of a competent national authority.” Not surprisingly, the first federal environmental assessment legislation, CEAA dates from 1992. But this is not the only principle, nor were these principles merely stated in 1992 then forgotten. Indeed, the international community has repeatedly re-affirmed the principles of the Rio Declaration at international meetings and in UN General Assembly resolutions over the years, including in 2002 at the World Summit on Sustainable Development in Johannesburg, in 2012 at the Rio +20 Summit in the outcome document the Future We Want, and most recently, at Stockholm +50. International environmental treaties routinely incorporate Rio Principles into their preambles or substantive provisions, and the July 2022 UN General Assembly resolution A/RES/76/300 recognizing the right to a clean, healthy and sustainable environment also reaffirms the Rio Declaration. Many of these principles are already found in Canadian environmental law statutes, whether in preambles or as stand-alone substantive provisions or as considerations in decision-making. While the Rio Declaration is not a treaty, some of the principles may or do reflect customary international law. These principles must surely, then, be relevant to statutory interpretation given that Canadian laws are to be interpreted in conformity with Canada’s international legal obligations. At a minimum, the principles of the Rio Declaration are part of the international context in which existing domestic environmental laws have come to be, and so are relevant to a purposive approach to statutory interpretation.

One famous Rio principle is the precautionary principle, and both majority and dissent do consider it in their analysis. However, this is no surprise as it is explicitly incorporated into the IAA’s purposes as detailed in s6(2). Notably, the dissent in the IAA Reference invokes the SCC’s 2002 decision in Spraytech which cited the arguably stronger Bergen Ministerial version of the principle and used it as an interpretative aid – the dissent further interprets the legal effects of the IAA’s s7 prohibitions in light of the precautionary principle (para 286), something that the majority fails to consider.

The Rio Declaration also makes repeated reference to sustainable development, of importance for understanding the references to sustainability in the IAA. This is especially so in light of Rio Principle 4 on integration: “In order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it.” It is certainly the case that Justice La Forest’s decision in Oldman River incorporates the principle of integration as noted from the passage quoted above, and the dissent in the IAA Reference clearly draws upon this principle in its analysis (which also features strongly in a passage quoting Meinhard on the importance of an integrated decision process (para 330)). The majority, on the other hand, is clearly troubled by references to sustainability as if this adds something unacceptable into the analysis, rather than simply being the way in which environmental decision-making has been understood since at least 1992. This leads the majority to propose two nonsensical hypotheticals (paras 170 – 175) that presume it is possible to consider federal environmental effects without considering sustainability at the same time – the principle of integration would suggest that what the majority demands is not acceptable as an environmental decision-making process. While Principle 4 clearly states that environmental protection cannot be considered in isolation from sustainable development, this is arguably what the majority insists federal decision-makers must do.

Procedural rights and the 2018 Framework Principles

There is much more that could be said about the way in which principles of international environmental law found in the Rio Declaration inform the structure of the IAA and how they should inform its interpretation. For example, Rio Principle 10 speaks to procedural environmental rights (access to information, public participation in decision-making and access to justice). As a planning tool, the essence of environmental assessment is of course all about information gathering and effective public participation in the process (see eg para 160). Beyond the Rio Declaration is the question of whether and if so how the UNGA recognition of the right to a clean, healthy and sustainable environment – and Canada’s vote in favour, albeit with uncertainty over its meaning – could have informed the analysis in the IAA Reference. It is clear that since the adoption of UNDRIP in a UNGA resolution in 2007, much has changed in the Canadian legal landscape even if much remains to realize Indigenous self-determination and the resurgence of Indigenous ecological laws. An ideal approach to the interpretation of the IAA would be one that situates it in the broader landscape of clarifications of procedural environmental human rights evident in the work of special experts of the Human Rights Council, perhaps especially the 2018 Framework Principles on Human Rights and the Environment. The 2018 Framework Principles reflect diverse sources of existing international law and include not only Framework Principle 8 (impact assessment) but also Principle 4 (ensuring the safety of environmental human rights defenders), Principle 5 (freedom of association, expression and peaceful assembly), Principle 6 (education and public awareness), Principle 7 (access to information), Principle 9 (public participation), Principle 10 (access to effective remedies), Principles 3 (anti-discrimination) and 14 (protecting the rights of those most at risk) and Principle 15 (obligations to Indigenous peoples). A key point is that a decision-making function that focuses on public interest (something the majority views to be problematic) does not seem out of step if one understands that a fundamental component of effective environmental assessment is public participation in order to inform the decision-making process … one that should consequently result in a decision that is ‘in the public interest’.

The Do No Harm Principle, Climate Change and the Marine Environment

Finally, there is Rio Principle 2 which embodies both ‘sovereignty over natural resources’ and the ‘do no harm’ principle, elaborated in jurisprudence of international courts and tribunals that have explored expectations of due diligence in the prevention of transboundary and global environmental harms. Principle 2 could and should inform an interpretation of the gaps in Canada’s woefully underdeveloped jurisprudence on jurisdiction over the prevention of transboundary interprovincial environmental harms (para 189 – being limited to date to marine pollution and interprovincial rivers – but does no jurisprudence mean no federal jurisdiction, or is it simply that these issues have not yet come before the courts?) Principle 2 could and should also help to overcome Canada’s ‘head-in-the-sand’ failure to acknowledge responsibility to prevent (and remedy) contributions to global environmental harms including but not limited to climate change (crisis). While it is beyond the scope of this post to delve further into the implications of this observation, I note that the fallout of the IAA Reference for greenhouse gas (GHG) emissions regulation is explored in a recent blog by David Wright, with reference to climate impacts on Indigenous peoples, among other considerations. Moreover, in a Climate Law paper in honour of Meinhard that was published earlier this year, Adebayo Majekolagbe, David Wright and I explored the relationship between impact assessment law, the social cost of carbon, and climate loss and damage. In short, there is more work to be done both to unpack the linkages between climate impact assessment and remedy for climate harms, and the SCC’s IAA Reference is not helpful. In my view, SCC federalism jurisprudence and especially the Carbon Pricing References must be understood narrowly given its focus on regulation of GHG emissions through pricing. It is not about regulating other climate issues such as climate adaptation or climate loss and damage, nor is it about regulation of non-emissions reduction mitigation activities – such as regulation of carbon dioxide removal technologies – an emerging and controversial topic including ocean-based approaches.

At least until Canada’s adoption of its federal climate adaptation strategy just this past year, one would be forgiven for assuming that climate change law was only about reduction of GHG emissions. In fact, GHG emisssions do indeed contribute to and cause harms – within the jurisdiction of the emitter, as well as transboundary (including interprovincial, or province to territory) and global harms. This includes harm to the marine environment, a recognized head of federal power under the POGG national concern doctrine as determined by the SCC in Crown Zellerbach and acknowledged by both majority and dissent in the IAA Reference. The majority’s narrow understanding of federal environmental effects and obligations in the IAA Reference (paras 182-189) seems remarkably distant from international environmental law guidance on responsibilities across borders, even as international cooperation to address liability and compensation (Rio Principle 13) remains unmet. Importantly, several Advisory Opinions aimed at clarifying the obligations of states in relation to climate change are before international courts and tribunals (see ICJ, ITLOS, IACHR), and linkages between climate change and oceans governance – notably the UN Convention on the Law of the Sea (UNCLOS) and obligations to protect the marine environment – will be clarified in some of these, while some will draw attention to human rights dimensions. In this light, it is interesting to note Canada’s submission to the International Tribunal on the Law of the Sea on due diligence under UNCLOS (para 59):

Canada encourages the Tribunal to find that under Part XII, States Parties have a due diligence obligation to protect and preserve the marine environment in relation to climate change, which includes preventive measures to avoid and reduce pollution of the marine environment from GHGs. In addition, given the significant risks associated with climate change, including acidification, oxygenation, adverse impacts on biodiversity, and exacerbated sea-level rise, Canada believes that the standard of due diligence in relation to marine pollution from climate change should reflect those risks accordingly.

It would have been nice to see the SCC IAA Reference considering the broader international context in which its decision arose, including insights from international law. Beyond ‘nice’, it is a requirement. Canadian statutes must, at a minimum, be interpreted so as not to undermine Canada’s international legal obligations. I believe that the failure to engage in this interpretive exercise even while considering seemingly domestic challenges like the division of powers has implications for the analytical process, although there is more work to be done beyond these preliminary reflections to determine exactly what consequences flow from such a failure.

David Wright: Awaiting the Supreme Court of Canada on the constitutionality of the IAA

October 3, 2023 Sara Seck Leave a Comment

This past weekend Dalhousie University commemorated National Day for Truth and Reconciliation, Treaty Day in Nova Scotia, and the launch of Mi’kmaq History Month. For readers and contributors to this blog, it is also just over a year ago that our treasured colleague and blog founder Meinhard Doelle was tragically killed while cycling. Since then, many initiatives have remembered and celebrated Meinhard’s contributions (for a quick summary of some, see p4 of the Hearsay). Among his contributions was the publication of the casebook Environmental Law: Cases and Materials, together with co-author Chris Tollefson. Among the topics covered and revisited in each updated edition of this book is the relationship between environmental law and Indigenous peoples, from reflections on the colonial history of conservation and emergence of Indigenous Protected and Conserved Areas (IPCAs), to the evolution of Canadian Aboriginal law jurisprudence including the relationship between the Crown duty to consult and accommodate and seek consent, implementation of the UN Declaration on the Rights of Indigenous Peoples (UNDRIP), and the (co-)evolution of (environmental) impact assessment laws. For many reasons it is therefore timely to share the post below from Meinhard’s friend and colleague UCalgary prof David Wright. The federal Impact Assessment Act while in no way perfect has taken significant steps to integrate Indigenous rights and jurisdiction. Yet, as with so many federal environmental law statutes, it has been under constitutional attack: what can we expect?

Supreme Court of Canada Will Soon Rule on the Constitutionality of the Federal Impact Assessment Act. Here’s What to Watch for…

By: David V. Wright

Matter Commented On: Forthcoming Supreme Court of Canada reference case in the Matter of 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, SC 2019, c 28 and the Physical Activities Regulations, SOR/2019-285; and the Matter of a Reference by the Lieutenant Governor in Council to the Court of Appeal of Alberta under the Judicature Act, RSA 2000, c J-2, s 26

For anyone interested in impact assessment in Canada, this is a suspenseful time. The Supreme Court of Canada (SCC) is expected to soon release its ruling on the constitutionality of the federal Impact Assessment Act, SC 2019, c 28 [IAA] and the associated Physical Activities Regulations, SOR/2019-285 (the latter setting out the list of projects that trigger application of the regime). My Environmental Impact Assessment Law seminar students and I are set to dive deeply into the decision as soon as it drops, and no doubt many others plan to do similar. For now, this short post sets out ten things to watch for. (For those interested in deeper dives into this statutory regime and how we got here, see my previous publications here, here and here).

Before turning to the issues, I would like to dedicate this post to Dr. Meinhard Doelle. Just over a year ago, Meinhard was killed while cycling in rural Nova Scotia. No words suit this unspeakable tragedy, and the grieving continues. Meinhard was a model environmental law scholar, mentor, colleague, friend, and community member. His contributions on all fronts were extraordinary and too numerous to count (for some context see here and here). Indeed, he was extraordinary. Meinhard’s ability to bring a principled and inclusive approach to society’s most complex law and policy challenges was unmatched, and always came with the sincerest of smiles. One area for which he had a special passion and deep wisdom was impact assessment. He literally wrote the book (s) on it, and was a trusted source of knowledge and advice across spheres of private practice, not-for-profit, government, and academic institutions. No doubt many of us are thinking of him frequently as we anticipate the release of this SCC ruling. Whatever the outcome, Meinhard would have engaged by embracing the complexity with his energetic, evidence-based, hope-filled ways that continue to inspire so many of us.

Direct Answers to the Reference Questions Posed

This is a reference case, not the typical lawsuit between parties. A reference case happens when a federal or provincial government asks the court to provide its opinion on a particular legal issue (see here for a helpful explainer). In the present context, Alberta posed questions to the Alberta Court of Appeal (ABCA), seeking an opinion on the constitutionality of the federal impact assessment regime. In a 4:1 split decision, a majority of the ABCA said the regime was not constitutional (Reference re Impact Assessment Act, 2022 ABCA 165 (CanLII) [ABCA Reference]). Canada then appealed to the SCC. That hearing took place in March 2022, and the Court’s opinion is expected to be released soon.

In a nutshell, using two related questions, the Alberta government asked whether the IAA and its regulations are constitutional “in whole or in part” (ABCA Reference at para 4). The Supreme Court of Canada will respond to these questions, but one thing to watch for on this front is the extent to which the SCC parses the issues. For example, they could find that the IAA is constitutionally valid in whole, but the regulations are unconstitutional in part. Or they may rule that there are parts of the Act that are unconstitutional, but the project list regulations are fine. On the former, for example, there remains a chance that the SCC will actually agree with the majority of the ABCA that the inclusion of in situ oil sands projects on the project list is not constitutional, presumably because there is not a strong enough link to a federal head of power (more on this below). It is difficult to predict whether, and if so how, the SCC might separate out these issues, and what the fallout of such parsing will mean. If a majority of the Court does find any part of the IAA or regulations unconstitutional, legislative amendments will almost certainly ensue. In any event, to the extent that any aspect of the regime is ruled to be unconstitutional, the details and nuance will matter a lot (and so beware of both simplistic cheerleading and tantrums).

Majority Versus Minority Opinions

Most who follow this area of the law would agree that a unanimous decision from the SCC is unlikely. The Court is expected to split. The dividing line(s) may well resemble those seen in the split bench in Re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11 (CanLII) [Re GGPPA]. One twist in the current context is that the SCC sat as a bench of seven for the IAA case, not the usual nine (due to Justice Russell Brown being on leave from the Court at the time). The good news here is that the composition of the bench was still an odd number, meaning that even if they split there will still most likely be a majority opinion that carries the day and provides sufficient certainty to carry on with whatever constitutional analysis the majority sets out. I say “most likely”, however, because there is a chance that the Court will be badly fragmented with several different opinions going in various directions (for an example of this in a non-reference context, see Mikisew Cree First Nation v Canada (Governor General in Council), 2018 SCC 40 (CanLII)). That would be a very unfortunate outcome because it would mean the legal landscape is foggier than ever, and therefore very difficult for Parliament, provinces, proponents, and the public to navigate.

Response to (Rebuke of?) of the ABCA Opinion

As my colleagues have aptly described on ABlawg here and here, the ABCA majority opinion engaged in an unusual degree of extra-judicial reasoning and rhetorical claims of exclusive jurisdiction. This was particularly so in relation to greenhouse gas emissions and climate change, where the ABCA majority characterized federal regulation of greenhouse gas emissions as intruding on the lives of citizens and pointed to examples (in fairness, acknowledged by the majority to be extreme ones) of measures such as to “[s]top eating beef”, to “[s]top driving vehicles of any kind”, to “[s]top eating as much” and to “[s]hut down all the cement plants” (at para 294). This type of rhetoric and judicial commentary is abnormal to say the least (see discussion by Nigel Bankes here). As such, it will be interesting to see the extent to which, beyond agreeing or disagreeing with the ABCA’s majority and minority analyses and conclusions, the SCC responds to, or perhaps even calls out, this type of content from the ABCA majority opinion.

Oldman Clarity #1: Scope of Assessment

The constitutional landscape in which today’s federal impact assessment sits is largely a product of the 1992 landmark case of Friends of the Oldman River Society v Canada (Minister of Transport), 1992 CanLII 110 (SCC), [1992] 1 SCR 3.That case laid down a key foundational aspect that is likely to be center-stage in the IAA reference. In that case, the SCC majority indicated that when the federal government engages in the assessment of a project, the scope of that assessment can be very broad, including environmental repercussions but also including socio-economic concerns and economic benefits (Oldman at 72). In saying so, the SCC also explained that the scope of that assessment is not confined to the federal head(s) of power that stand to be adversely impacted (at 72). The SCC explained this point using federal authority over interprovincial railways as an example (at 69-72). However, Oldman did not provide complete clarity. Open legal questions have lingered around what limits there might be on federal assessment of other projects, namely natural resource projects for which the federal government does not have explicit authority.

The ABCA majority was very pre-occupied with this issue, pointing to the example of an in situ oil sands project wholly within the province, but for which the federal government has situated itself under the IAA to engage in a comprehensive assessment leading to final approval or rejection (see e.g. ABCA Reference at para 284). In the time since Oldman, the prevailing view has been that the federal government does have a constitutional basis to engage in comprehensive assessment and decision-making with respect to such projects (see this ABlawg post by Profs Martin Olszynski and Nigel Bankes). But not everyone has agreed. As pointed out by Meinhard Doelle in his 2008 book on federal assessment, there is a narrower view attributed to Steven Kennett that suggests comprehensive federal jurisdiction only applies if the project is referred to directly or by implication of a federal head of power (at 67). It was that line of argument that the ABCA picked up in this case. And so, a key aspect to watch for in the SCC opinion is whether federal constitutional authority will be somehow circumscribed for some types of projects or certain aspects of the regime (e.g. scope of assessment or final decision-making). If a majority does indeed go the route of constitutionally limited federal authority, expect federal impact assessment to be changed forever. It would be the most significant development since 1992.

Oldman Clarity #2: Federal Heads of Power

Related to point #1 above, Oldman was very clear on the proposition that the federal assessment regime may relate to several heads of power simultaneously (at 72); See also Canadian Wildlife Federation Inc v Canada (Minister of the Environment), 1989 CanLII 7273 (FC), [1989] 3 FC 309 (TD), aff’d (1989), 99 NR 72 (FCA). Typical examples include fisheries and navigation. One aspect to watch for in the forthcoming SCC ruling is how this point will be confirmed and possibly restated with more clarity and with explicit reference to the IAA and regulations. A key aspect to watch is how the SCC will articulate what the nexus between the federal head(s) of power and the federal legislation must look like, and, further to issue #1 above, whether the scope of federal assessment and decision-making is somehow different based on the head of power engaged.

In addition to watching for what will likely be broad statements about the IAA relying on several heads of power, it will also be interesting to see what the SCC has to say about specific heads of power. For example, while federal authority in relation to fisheries and navigation, and interprovincial pipelines and powerlines are relatively clear, there are open questions about the role of other heads of power in terms of the extent to which they serve as a basis for federal IA legislation. Two key examples are POGG and s 91(24). I now turn to those.

POGG Power in Federal Impact Assessment

Oldman was not particularly helpful in explaining what role the federal residuary power of “Peace, Order, and good Government” (POGG) may play as a constitutional basis for a federal assessment regime. Instead, the majority simply stated, “in any event, it falls within the purely residuary aspect of the ‘Peace, Order, and good Government’ power under s 91 of the Constitution Act, 1867” (at 73). In today’s Gen Z hip speak, this would be a “wait, what?!” moment. It is fair to say that no one had a full understanding of what this meant, let alone what it means in relation to today’s IAA. And so, the POGG power is an important issue to watch in the forthcoming SCC opinion. The SCC may choose to once again side-step the issue and instead hinge their analysis on the typical federal heads of power (as the federal government has tended to do over the years), but perhaps not. Given that the SCC was forced to dive deeply into the POGG power in Re GGPPA, they may feel compelled to speak to it in the IA context as well, if only to further settle the dust on that important but seldom tested federal head of power.

Section 91(24) Head of Power, Including IAA – C-92 Linkages

Under s 91(24) of the Constitution Act, 1967, Parliament has broad jurisdiction with respect to “Indians, and Lands reserved for Indians” (notwithstanding lexicon that is arcane and widely viewed as problematic). The IAA embraces this jurisdiction by integrating deeper consideration of the rights and interests of Indigenous peoples throughout the Act (for detailed commentary, see here). Such use of this federal head of power in impact assessment is not new. Indeed, it was one of the powers discussed by the SCC in Oldman. But there has remained some uncertainty around the extent to which this head of power can support federal impact assessment legislation. As such, this will be an important aspect to watch in the SCC ruling.

This is particularly the case because the s 91(24) aspect of IAA constitutionality is part of a broader legal context of uncertainty around what s 91(24) means for federal and provincial jurisdiction in general. Of even greater consequence in this realm (and more suspense at the moment) is another SCC reference case that is set to also be released imminently, that one originating in the Quebec context regarding Bill C-92, An Act respecting First Nations, Inuit and Métis children, youth and families. In short, that Act aims to establish national standards for the provision of child and family services by providing a mechanism through which Indigenous laws can take priority over inconsistent federal and provincial laws governing the delivery of child and family services to Indigenous peoples (for insightful commentary and more information, see this post by my colleague, Dr. Robert Hamilton). The reference case asks whether that law is a valid exercise of the federal government’s s 91(24) head of power. Given its square focus on s 91(24), that SCC opinion will no doubt speak extensively about this head of power, including the relationship between s 91(24) and s 35 of the Constitution Act, 1982, and in doing so it will hopefully shed light on this aspect of the IAA reference. Because these two references are being considered by the SCC at virtually the exact same time, one would reasonably expect that the opinions will reference each other in an attempt at consistency and clarity. All of this, of course, is happening in the context of Canada’s commitment to full implementation of the United Nations Declaration on the Rights of Indigenous Peoples (GA Res 61/295 (Annex), UN GAOR, 61st Sess, Supp No 49, Vol III, UN Doc A/61/49 (2008) 15) (UNDRIP), so expect both SCC rulings to include at least some consideration of what UNDRIP means in relation to the IAA and Bill C-92.

Climate Change, Impact Assessment, and Federal Heads of Power

Yes, we’ve known about human-induced climate change for a long, long time. But not long enough to have included it in the constitution. So Canada’s constitution, of course, does not assign responsibility for addressing climate change. Rather, this is another instance of shared jurisdiction between federal and provincial governments who rely on their respective related heads of power to engage in addressing climate change through legislative measures. Impact assessment has a role to play in addressing climate change, for example by gathering information on carbon-intensive projects and then deciding how such projects would impact achievement of Canada’s emission reduction commitments. And it was on this logic that explicit climate change provisions were included in the IAA. But the constitutional basis for federal assessment of these aspects of a project would benefit from more clarity. The federal government has done a relatively poor job of explaining the link between this aspect of the IAA and federal heads of power. Expect the SCC to speak to this aspect pointedly, including how climate change impacts are becoming omnipresent and, as such, have impacts on the usual federal heads of power such as fisheries and navigation.

Presumption of Constitutionality and the Role of Judicial Review

The presumption of constitutionality dictates that if the text of legislation can be interpreted as constitutionally valid, courts should favour the meaning that supports constitutionality. A key issue to watch for in the SCC’s opinion is the extent to which the Court relies on this presumption to say that a constitutional interpretation of the IAA and regulations is indeed possible, and so that interpretation applies. It is difficult to predict just how much work this presumption might do in the SCC opinion, but it may be the case that the Court will not rely on it too heavily, preferring instead to engage in a robust and exhaustive constitutional analysis before also pointing to this presumption as further support.

It will also be interesting to see the extent to which the SCC acknowledges that because a reference case is inherently abstract (just a government’s legal question posed without a fact-rich legal dispute), it would be most appropriate to address some of the difficult legal dimensions on a case-by-case basis in the form of judicial review of an actual federal government decision under the IAA and regulations. Put another way, the SCC may take the view that the reference is focused on the existence of federal authority rather than the exercise of such authority. This would be a stark contrast from the ABCA opinion, which was very pre-occupied with how such federal authority might be exercised.

More ABlawg Commentary to Come

One thing is for certain – numerous ABlawg posts will follow soon after the SCC releases its opinion from the likes of Profs Sharon Mascher, Martin Olszynski, Nigel Bankes, yours truly, and possibly others. Watch for that in the days and weeks ahead.

Thanks to my colleagues Nigel Bankes, Martin Olszynski, Sharon Mascher, and Shaun Fluker who reviewed drafts of this post. And thanks to Dr. Sara Seck and Professor Jennifer Koshan for reviewing and cross-posting on both the Dalhousie Environmental Law News Blog and ABlawg, respectively.

Disclosure statement: In addition to being interested in this reference case given my teaching the Environmental Impact Assessment Law seminar in this area this fall, I was also co-counsel for one of the intervenors at the SCC where we made submissions in support of the constitutionality of the IAA, including climate change aspects. Additionally, I am a member of the federal Impact Assessment Roster, which is comprised of experts who may serve on independent review panels.

“Everything is Complex, But Everything has a Solution”: Remembering Meinhard Doelle

March 19, 2023 Sara Seck 1 Comment

“Everything is Complex, But Everything has a Solution”: Remembering Meinhard Doelle

By: Martin Olszynski

Associate Professor, University of Calgary, Faculty of Law

It is the weekend before the Supreme Court of Canada’s hearing in Re: Impact Assessment Act and I am sitting at my dining room table, writing (and re-writing) my prepared remarks for the Court and thinking about my extraordinary colleague and dear friend Meinhard Doelle. For those who didn’t know him, Meinhard was a giant in the field of Canadian environmental law and policy, and in impact assessment law in particular. He was also tragically killed by a motor vehicle while cycling near his beloved cottage in Nova Scotia this past fall.

I’ve had a chance to share bits and pieces of what Meinhard meant to me already – on the tribute wall below his remarkable obituary, and during a subsequent online gathering of the Canadian environmental law community. But as I started to prepare for the IAA Reference hearing, my mind would invariably turn to Meinhard (as further set out below, the two are inextricably linked for me), and so I decided that this week’s hearing would be as good a time as any to share those thoughts all in one place.

I first met Meinhard eighteen years ago. I was a super keen law student at the University of Saskatchewan, volunteering at the inaugural conference of the Journal of Environmental Law and Practice (JELP). It was held in Saskatoon and, as it has sought to do ever since, brought together many of Canada’s environmental law scholars and practitioners to hash out their ideas for a more sustainable future (in fact, we’ll be meeting at the 9^th JELP conference this summer, where we’ll be celebrating Meinhard’s contributions in person).

It was on the second day of that conference that I got to know of Meinhard, on a panel that, for those of us there, has surely grown in mythology. It was about the Kyoto Protocol, well after Canada’s signing but also well before its subsequent withdrawal. To the best of my recollection, Meinhard was there to help chart the path forward, but he was preceded by a colleague who had taken great issue with Kyoto – arguing that it was a badly flawed instrument. What followed was a fast-paced, intense, but ultimately ad hoc debate. While I don’t recall every remark and retort, I distinctly remember feeling awestruck at the breadth of knowledge on display, the speed of analysis, and Meinhard’s determination. Meinhard wasn’t naïve about Kyoto’s flaws, but he firmly believed in the imperative of reducing greenhouse gas emissions to address what our Supreme Court has since recognized as a national and international collective action problem.

While in practice, I managed to stay connected to the JELP community, doing the odd peer-review from time to time. And in that context, I was able to keep up with some of Meinhard’s work, especially in the environmental assessment context. He wrote about the Supreme Court of Canada’s 2010 decision in Miningwatch Canada v. Canada (aka Red Chris), wherein the Court recognized federal authority to assess projects in their entirety rather than as scoped down by some regulators to match their regulatory authority. He then became a critical voice in opposition to the federal government’s 2012 omnibus budget bills, aka Bills C-38 and C-45, which introduced radically diminished federal environmental assessment legislation in the form of CEAA, 2012 (ultimately sparking outcry across the nation).

Around this time, Meinhard also served as a panel member for the Lower Churchill Hydro-Electric Project Review Panel, whose report I became intimately familiar with in the course of my work as a lawyer for DFO. It remains one of the most thoughtful panel reports ever written in Canada. Meinhard took that Lower Churchill experience and turned it into an article that he presented at the fourth JELP conference, at Reesor Ranch, SK. Shortly after Reesor, myself, Sharon Mascher and Meinhard assumed JELP’s editorial and conference-planning responsibilities.

In the decade that followed, Meinhard was not just a fixture of Canada’s environmental law community but, as one speaker put it at Meinhard’s celebration of life, a compass. Meinhard helped so many find their bearings.

That was and remains the case for me. I can’t turn around in my office without seeing Meinhard’s name or being reminded of him. From climate law and policy to impact assessment, Meinhard often drove the agenda, first amongst his peers and then in meetings with politicians and public servants. And when the IAA passed and many of us weren’t quite sure what to make of it (because, for example, it retained CEAA, 2012’s reduced scope), he geared up and drove efforts to keep improving it, including through the IAA book he co-edited, to which many in Canada’s environmental law and policy community were keen to contribute. He also served as a member of the Impact Assessment Agency of Canada’s Technical Advisory Committee.

And if Meinhard were here, there is no doubt that he’d be helping a bunch of us prepare for this week’s hearing (as he did in the lead up to the Alberta Court of Appeal’s hearing). While it’s impossible for me to overstate how much I would appreciate hearing some of his words of wisdom right now, I remind myself that they’re actually all around me – in his books, articles, and emails (that he’d often sign off with a ).

As captured so perfectly in his obituary, to Meinhard everything was complex, but everything had a solution. That actually sums up my submissions regarding the IAA pretty well too. And so I’ll keep learning from my extraordinary friend Meinhard, even as I miss him.

A Human Rights-Based Approach to Plastic Pollution: Lessons for Canada

March 9, 2023 Sara Seck Leave a Comment

On March 9, 2023, the Marine and Environmental Law Institute hosted Marcos A Orellana, the Special Rapporteur on Toxics and Human Rights (SR Toxics), as the 14^th Annual Douglas M Johnston Lecture . The talk was entitled: ‘A Human Rights-based Approach to the New Treaty on Plastic Pollution’ and a recording is available here.

This lecture could not be timelier. A March 2022 United Nations Environment Assembly resolution created an intergovernmental negotiating committee tasked with developing an internationally binding instrument to tackle plastic pollution using a full lifecycle approach. The first negotiating session was concluded in December 2022in Uruguay, with the second set for France in May 2023. As part of its background work for these negotiations, the United Nations Environment Programme (UNEP) released a background document on Plastic Pollution Science, which concluded in part that at the heart of the plastics crisis is the “resource-inefficient, linear, take-make-waste plastic economy”. In 2021, the SR Toxics released a report entitled The Stages of the Plastics Cycle and Their Impacts on Human Rights which examines the human rights impacts of each stage of the linear fossil-fuel-based plastics cycle, from extraction to production, transportation, use and waste generation, and waste management and disposal. This human rights-focused report complements reports by UNEP such as the 2021 From Pollution to Solution: A Global Assessment of Marine Litter and Plastic Pollution. The OECD has also been studying the problem and in 2022 released its Global Plastics Outlook. A common theme is that at most only 9% of plastic waste is in fact recycled (15% is collected), and that OECD countries generate almost half of global plastic waste with the United States then Canada shamefully at the top of the list (by far) in terms of the most plastic waste generated per person (see p42 OECD). Unfortunately, fossil-fuel based virgin plastic production continues to increase at a rapid rate with no sign of slow down despite increasing awareness of the problem and initiatives to address it (see for example the work of the Ellen MacArthur Foundation and the Minderoo Foundation’s Plastic Waste Makers Index).

From a Canadian perspective, the timeliness of this lecture is equally evident. The federal government has taken preliminary steps to address the problem of plastic pollution through the Canadian Environmental Protection Act (CEPA) by listing plastic manufactured items as toxic and adopting a narrow single-use plastic ban (Single-use Plastics Prohibition Regulations) following its own 2020 science assessment. Unfortunately, ‘Big Plastic’ industry players including Dow Chemical, Imperial Oil, Nova Chemicals Corp. and the ‘Responsible Plastics Coalition’ are challenging the federal government’s regulatory initiatives in two lawsuitslaunched to date. Two provinces are intervening in support of the current challenge, with Alberta’s intervention fueled by its growing petrochemical sector. Environmental groups represented by Ecojustice are intervening in support of the federal government.

From my own perspective, there is a need to reconcile the Canadian plastics industry’s hostility to regulatory initiatives with work I recently undertook on behalf of Dalhousie for UNEP, the Coordinating Body on the Seas of East Asia (COBSEA) and SEA Circular, with support from Sweden Sverige. Over the last two years, working with a team of graduate and JD students at the Marine & Environmental Law Institute, and with input from regional partners WWF Philippines and the Indonesian Business Council for Sustainable Development, we developed and delivered (virtually) trainings on a human rights-based approach to plastic pollution. The third training took place in August, 2022, as we contributed to SEA Circular’s regional dialogue series event “Achieving a Circular Plastics Economy through Human Rights-Based Approach (HRBA) and Extended Producer Responsibility (EPR)”. SEA Circular’s mandate is to reduce harmful plastic waste in the region and sees attention to human rights and gender equality as key components of market-based solutions. This includes the right to a clean, healthy and sustainable environment, and the responsibility of business enterprises to respect human rights in accordance with the UN Guiding Principles at each stage of the plastics life cycle, with the ultimate aim to transition to a circular economy with zero plastic waste, an objective endorsed by the Canadian Council of Ministers of the Environment in 2018. SEA Circular has made available a link to a webinar of this training, and has published our training materials along with many others resources on their knowledge hub. This includes an issue brief, a detailed policy training resource, PowerPoint slides (3 modules), checklists for businesses, governments, and civil society, and a toolbox of resources.

We relied extensively on the work for the SR toxics in the development of these materials, as well as insights from the UN Working Group on Business and Human Rights, and OECD Responsible Business Conduct guidance tools. There is more work to do in refining this work, updating it, and grounding it in local contexts and cases studies. This includes Canada. For example, the protection and support of human rights defenders and civic spaces is an important responsibility of both governments and businesses and key to enable the exercise of procedural environmental human rights. Businesses also have a responsibility to ensure that they do not undermine the ability of states to meet their own human rights obligations. This includes the right to a clean, healthy and sustainable environment, recognized in a resolution of the UN General Assembly in July 2022 with Canada voting in favour, and something that the federal government’s (incomplete) plastics initiatives are taking steps to realize. Importantly, failure to reduce plastic waste in Canada, something that single-use plastic bans aim to achieve, has human rights and environmental justice implications for states and individuals in the COBSEA region, as developed states including Canada have a long history of sending plastic waste overseas – out of sight, out of mind. It is long past time to tackle the plastics crisis with ‘all hands on deck’ and ‘every tool in the toolbox’.

Arlene Kwasniak: Remembering Meinhard

February 9, 2023 Sara Seck Leave a Comment

This blog was written by Arlene Kwasniak, Professor Emerita of Law and Senior Research Fellow with the Canadian Institute of Resources Law, University of Calgary, in memory of Meinhard Doelle.

December 20, 2022 [posted February 9, 2023]

I first met Meinhard at a Canadian Environmental Network Environmental Planning and Assessment Caucus (RCEN EPA Caucus) meeting decades ago. It was his first I recall- I was a Caucus “regular” by then. From that first meeting it was clear to me that Meinhard was extraordinary – including as a knowledgeable and committed environmentalist, legal and public interest scholar and thinker, contributor, organizer, and doer. Through the years Meinhard became, as Anna Johnson, co-chair of the EPA Caucus, put it, a lynchpin of the Caucus. His accomplishments as a member were innumerable, his influence and stature unquestionable, and he fully deserved the love and respect we all had for him.

Meinhard was also a brilliant advisor to and consultant with multiple levels of government. Commemorative accolades by high-profile politicians evidence this (e.g. by federal Environment and Climate Change Canada Stephen Guilbeault (on Twitter), and Senator Brent Cotter at Senate (<<https://sencanada.ca/en/content/sen/chamber/441/debates/091db_2022-12-13-e#15 >>) In this regard, I remember him most for his incomparable work with the federal Environment Minister’s Regulatory Advisory Committee, formed under the Canadian Environmental Assessment Act, 1992, to advise the federal environmental minister on regulatory and policy matters relating to the CEAA. Besides politely keeping all sector representatives focused and on track, Meinhard would deftly cook up and serve sweet deals between the environmental representatives and industry and others. Regardless of RAC members’ stakeholder affiliations, everyone respected and trusted him. I have not seen such charisma and ability before or since.

Then there is Meinhard’s amazing and prolific scholarship as a law professor and author and talents and influence as a teacher. I am honoured to have worked with him, especially as a co-author of two chapters of Meinhard Doelle and A. John Sinclair (eds), The Next Generation of Impact Assessment- A Critical Review of the Canadian Impact Assessment Act (Toronto: Irwin Law, 2021). Meinhard’s influencing the IAA’s sustainability focus (in contrast to CEAA’s environmental focus) and the detailed spelling out of what that means and how it should happen in the Next Generation publication, will serve and benefit environmental, economic, and social sustainability in Canada indefinitely – forever. What a legacy!

Still cannot believe he is gone. Meinhard’s passing is a huge and painful loss. He was a beloved friend and colleague and an outstanding and effective advocate. He made Canada a better place on many levels.

Responsible Business Conduct and Impact Assessment Law: Origins of a Project and Reflections

January 30, 2023 Sara Seck Leave a Comment

Responsible Business Conduct and Impact Assessment Law: Origins of a Project and Reflections

written by Prof Sara Seck

Environmental lawyers and environmental law professors spend a lot of time thinking about how to prevent environmental harms and the key role that environmental assessment legislation can play to that end. My late colleague Meinhard Doelle, founder of this blog, was a preeminent example of this. His expertise in environmental assessment (EA) law in all its diverse forms – including its potential to tackle challenges such as climate change – is well known and involved collaborations with many (see 2016 blog on next generation EA with John Sinclair and Robert Gibson). Meinhard passed along his knowledge and passion for EA – and by extension, the more expansive impact assessment (IA) – to numerous undergraduate and graduate students, including Dr. Adebayo Majekolagbe, who defended his PhD thesis on just transition and impact assessment law in December 2022 (see 2023 blog reflecting on Meinhard’s contributions to Bayo’s thinking).

While Meinhard was musing about how to prevent harm through legislative EA tools, I was thinking about how developments in the new field of business and human rights (BHR) might be used to prevent harms using a human rights and environment lens (see blog co-authored with Meg Williams). I was also collaborating with University of Ottawa colleague Penelope Simons on the human rights concerns arising from extractive industries with a particular focus on Indigenous rights and gender justice (see co-edited special issue of CJWL and book chapter).

Meinhard and I would sometimes reflect upon our different approaches to similar problems, and in 2019 an opportunity arose to seek research funding through a SSHRC Knowledge Synthesis Grant: Informing Best Practices in Environmental and Impact Assessments. The context was the recent passage of new federal impact assessment legislation, and, greatly assisted by Bayo, a team was assembled including our Dalhousie colleague Naiomi Metallic, Chancellor’s Chair in Aboriginal Law and Policy, and a successful application submitted.

Details about this project and its outcomes are available on the Schulich Law Scholars digital commons (herehttps://digitalcommons.schulichlaw.dal.ca/ialawrbc/). We described the project as follows:

Extractive companies play a major role in the Canadian economy, and their actions have multi-faceted effects on the communities in which they operate, whether within or outside of Canada. Currently a wide range of Responsible Business Conduct (RBC) guidance tools, often embedding human rights due diligence, are promoted to extractive companies. At the same time, companies must comply with Impact Assessment (IA) laws in the jurisdiction in which they operate. While the legal framework of IA and the various RBC tools have some obvious overlaps, their interrelationship has been understudied. This project aims to illuminate the interrelationship and to encourage further research with the aim of facilitating an effective and human rights respecting approach to the integration of IAA and RBC in Canadian law and policy. This research is funded by a SSHRC Knowledge Synthesis Grant: Informing Best Practices in Environmental and Impact Assessments led by Professors Sara Seck and Penelope Simons (Ottawa) with collaborators Professors Meinhard Doelle and Naiomi Metallic and doctoral candidate Bayo Majekolagbe as lead graduate researcher.

A team of JD and graduate student researchers were assembled at both Dalhousie and Ottawa, and in 2020 (updated in 2021) we completed an overview report described as follows:

This report aims to identify RBC tools referenced in the literature as relevant and/or promoted to Canadian extractive companies operating within and outside Canada. While not appraising or pronouncing on the quality of RBC tools, we consider the different actors that promote these diverse tools and whether there is a coherent framework for the efficient and effective application of current and future tools. We focus on RBC tools on human rights, stakeholder engagement, the rights of Indigenous peoples, and the rights of women and girls. Further, we review the position of scholars on the relationship between RBC and IA.

We also completed an evidence brief that was shared with others as part of the Impact Assessment Agency of Canada (IAAC) and SSHRC’s aim to “inform best practices for environmental and impact assessments” (see all evidence briefs here).

At the time, Meinhard and John Sinclair were in the process of editing a new book reflecting on diverse aspects of the new Impact Assessment Act. Entitled The Next Generation of Impact Assessment: A Critical Review of the Canadian Impact Assessment Act, this book project provided us (lead author Bayo Majekolagbe) with an opportunity to draft a chapter reflecting on the IAA RBC relationship (pre-print posted here). We describe our aims in this chapter in part as to:

highlight the role of proponents and their consultants as human rights duty bearers and recommend the integration of human rights approaches into impact assessment processes under the IAA.

However, our work was not – and is not – complete. The conversation about EA and IA laws and RBC that integrates human rights due diligence (HRDD) is still new and ever evolving. For example, one set of RBC guidance that we examine are the OECD Guidelines for Multinational Enterprises, which in 2011 were updated to include a human rights chapter. Currently, the OECD MNE Guidelines are undergoing a ‘targeted update’ which it is anticipated will do a better job of addressing some of the challenges we examined in this project. (An online public consultation on the proposed targeted updates is taking place until February 10, 2023).

Beyond improvements to RBC guidance tools and better law and policy frameworks to facilitate the integration of RBC and IAA in the interests of ecological, environmental and social justice through respect for human rights, there is a need for educational tools that explore and explain these relationships to governments, businesses, lawyers and communities (among others). From 2021 to 2022, with the assistance of Charlotte Connolly and Erin Dobbelsteyn, we embarked upon the development of two such instruments:

Toolbox (available here: https://digitalcommons.schulichlaw.dal.ca/ialawrbc/4/ ) and
Issue Brief (available here: https://digitalcommons.schulichlaw.dal.ca/ialawrbc/5/ )

Both are works in progress. We invite feedback on these educational tools which will be updated over the course of 2023. Please send comments to: KSG.IA.RBC@gmail.com

The Just Transition Impact Assessment Framework: A Doelle Lens

January 19, 2023 Sara Seck 2 Comments

The Just Transition Impact Assessment Framework: A Doelle Lens

Written by: Adebayo Majekolagbe, PhD – Fellow, the African Sovereign Debt Justice Network, and the Marine and Environmental Law Institute, Dalhousie University

(This blog is dedicated to the memory of Meinhard Doelle who co-supervised my PhD thesis on just transition and impact assessment.)

“Be careful not to present sustainability transition and climate transition as the same thing.” – Meinhard Doelle (Feedback on PhD thesis on Just Transition Impact Assessment)

Meinhard Doelle’s body of work on international climate change law, environmental law, shipping and maritime law, climate policies in Canada, and impact assessment is embedded in an ambitious yet pragmatic outcome-oriented and applied vision of sustainability. From his doctoral thesis published as a monograph on climate change and international environmental law in 2005 to the 2021 co-edited work on the Next Generation of Impact Assessment, the importance of the integration of relevant regimes for sustainability is manifest in Meinhard’s scholarship. His more recent project on the incorporation of climate change into impact assessment (IA) brings the emphasis on integration further to the fore. It was within this project on climate change and impact assessment that my work on the just transition impact assessment (JTIA) framework found an intellectual home with Meinhard as PhD supervisor. In its design, the JTIA framework immensely benefited from the inputs of Meinhard (and Sara Seck who served as co-supervisor). In this blog, using several marked-up drafts of the JTIA framework, I highlight Meinhard’s key contributions to and criticisms of the framework.

The Just Transition Impact Assessment Framework

Climate change is fundamentally a justice issue. It impacts communities least responsible most, and measures to mitigate and adapt to climate change, at times, create or worsen socio-ecological vulnerabilities. Recent developments in climate change and IA scholarship and policies have primarily focused on how to effectively assess the impacts of projects on climate change. As in the case of Canada, this emphasis is often interpreted as the emission potential of projects and how that impacts on a country’s nationally determined contribution under the Paris Agreement. Such narrow framing, however, often results in a technocentric, and expert-focused approach to climate change and impact assessment, which leaves out the issues of justice implicated in climate change-oriented decision making. The JTIA Framework is for the explicit consideration of justice in the incorporation of climate change into IA. Central to developing the framework is the adoption of a wellbeing-centric understanding of just transition, consideration of how just transition can be operationalized through conventional IA, and the specific principles for explicit consideration of justice in IA. Each of these components are reflected on below in the light of Meinhard’s feedback.

A Wellbeing Focused Just Transition

Within climate change discourse, various emphases of justice are addressed through diverse concepts including climate justice, energy justice, and the Common but Differentiated Responsibilities (CBDR) principle. Comparatively, just transition is a more recent concept, most relevant in the consideration of the adverse impacts of response measures in mitigating or adapting to climate change. The transformative potential of just transition has been stressed by several scholars; however, just transition is, in practice, mostly operationalized as ‘jobs transition’. The emphasis on ‘jobs’ is a testament to the historical rootedness of just transition in the labour movement. Also, this narrow understanding of just transition primarily aims to ‘redistribute’ the ‘losses’ and ‘benefits’ of the transition. The evidence that this narrow framing of just transition leads to actual just outcomes is, however, almost non-existent. In fact, evidence is beginning to emerge that a jobs-centric understanding of just transition often leaves socio-ecological injustices unaddressed and at times create new ones. In addition, jobs-centric just transition is primarily domestically scoped, and emphasises the allocation of resources (e.g., to compensate, retrain, or relocate workers) and trilateral social dialogue (between the State, employers, and employees).

“You will want to make sure you articulate as clearly what needs to be included and how. So far, the message is clear that a focus on jobs is too narrow, it is less clear what exactly you are looking for and how this can/should be achieved.” – Meinhard Doelle

Generally, Meinhard agreed that a narrow jobs-centric understanding of just transition is problematic. He, however, noted the need for clarity on what just transition should focus on if not ‘jobs.’ Amartya Sen provides an alternative to the resource allocation based distributive theory of justice which underpins the dominant narrow rendering of just transition. Sen argues that it matters if we focus on the means rather than the outcome of justice. The primary outcome of justice is the attainment of capabilities for human (and ecological) wellbeing. My rethinking of just transition is, at its core, inspired my Sen’s reasoning. It does matter if we are merely focusing on the means of justice (replacement jobs, compensations, relocation, etc.), rather than the end of justice (what do the various interventions mean for actual socio-ecological wellbeing – the wellbeing of humans, communities, and nature). This basic rethinking fundamentally alters where just transition analysis starts from. The operative question is not – what does a transition decision mean for jobs and workers? Such narrowly scoped question does not only confer pre-eminence on jobs over other non-job justice concerns implicated by the transition, but often gives paramountcy to certain types of jobs (mostly workers in the fossil fuel sector) and balkanizes and selectively reifies the identity of individuals as ‘workers’ neglecting other vital ‘identities’ that make the individual (see Sara Seck on the flawed prevalence of the bounded autonomous individual in legal analysis).

The important question when thinking about justice in transition decision-making, is – what does the decision mean for socio-ecological wellbeing (the wellbeing of humans, communities, and nature). The principle is straight-forward: transition decisions should result in improved wellbeing. Martha Nussbaum’s combined basic capabilities (e.g., life, bodily health, integrity, imagination and thought, affiliation, emotion, practical reason, relationship with other species, play, and control over one’s (political and material) environment) are useful in concretely describing the vital constituents of wellbeing that the transition must ensure. The languages of human rights and sustainable development goals are also helpful in establishing the contours of a wellbeing-outcome oriented notion of just transition. Focusing on wellbeing also expands the bracket of the potential beneficiaries of just transition interventions. The question moves from being ‘which workers are impacted’ to ‘whose wellbeing is adversely impacted by a transition decision’? While a subject-scoping analysis based on the latter question might yield ‘workers’ as an answer, it will not always be so, or at least, jobs-related needs of the ‘worker’ will not always be the automatic priority of just transition. Vulnerability, therefore, becomes a key determinant of whose and what interest is prioritised when justice is factored into transition decision making.

“I think I may have mentioned this before, but the UN climate regime did make an effort to get agreement on equity principles at some point. My recollection was that it all centered around a series of workshops in Bonn around 2008, but I could be wrong. Ultimately, neither OECD nor OPEC was willing to come to the table in a meaningful way.” – Meinhard Doelle

Wellbeing-focused just transition is also not constrained by artificial geographical delineation. It is the wellbeing of ‘whoever’ (or ‘whatever’ as in the case of nature) regardless of where they are domiciled. Meinhard shared the view that climate change measures have the potential of resulting in unjust outcomes in third States. He, however, appeared less sold on addressing these unjust impacts through the UN climate regime, more so as previous efforts had failed. Despite recent developments, the possibility of an effective and equitable fossil fuel non-proliferation agreement is limited. As Meinhard suggested, neither the global south nor north has an appetite for such regime. My argument simply is that a deliberate and broadly scoped interpretation and application of the common but differentiated responsibilities (CBDR) principle when crafting transition decisions could go a long way in ensuring that such initiatives are just to third countries, particularly countries most vulnerable to the impacts of climate change and response measures. For example, paying attention to responsibility, capability, and circumstance in designing a carbon border adjustment policy could, in theory, result in a fundamentally more just policy as against what is currently obtainable under the EU Carbon Border Adjustment Mechanism.

Conventional IA as an Interstitial Space for Just Transition

Now to the second part of Meinhard’s first comment (see box 1 above) – how can a wellbeing focused understanding of just transition be achieved? Just transition scholarship is beginning to pivot towards more applied narratives. Robins, Brunsting, and Wood’s just transition guide for investors, Bright and Buhmann’s work on risk-based due diligence and just transition, and the EU’s Just Transition Mechanism are examples of how researchers and policy makers are attempting to convert just transition from theory to application. I have argued that impact assessment is an important piece of the applied just transition puzzle. Unsurprisingly, Meinhard gave his most extensive comments on this section of the work.

“I very much enjoyed reading this chapter, Bayo. Very well done … Overall, my 2 main points are these:

The lines between the various different types of IA are not always clear to me … So, when you talk about how EIA differs from social, human rights, gender, … impact assessment, you might make this clear from the start, that these more specific forms of social impact assessment have to some extent been incorporated into EIA or IA.
The other area I think could use more clarity is the tiering of assessments and the implications all that has for the role of impact assessment as a just sustainable transition tool. I would certainly think that the effective integration of well-done regional assessments would offer significant opportunities, but even the opportunities offered by strategic assessments could be explored more.” – Meinhard Doelle

Meinhard’s first point, in some sense, accentuates the argument that conventional IA is only relevant to just transition to the degree that the various relevant strands of IA are holistically integrated. Meinhard correctly noted that seemingly different modes of IA – from social impact assessment to gender impact assessment – have over time been considered as valued ecosystem components (VECs) in environmental impact assessment (EIA). These VECs have, however, grown into distinct IA modes given the inadequacy of consideration when subjected under generic EIAs. The nature and underpinning assumptions that actuate these IA modes also differ. For example, while biophysical EIA is often approached as a dominantly expert-centric and technical venture; the ‘public’ is, however, deemed more central to interest and right-based IAs. Nevertheless, for conventional IA to be relevant to just transition, various modes of IAs must necessarily be ‘holistically’ integrated. Holistic integration requires not just the consideration of ‘other’ impacts, but the synthesis of fundamental principles and approaches. For example, it is not enough to simply consider human right impacts in an EIA. Key principles like a broad scoping of human rights using international instruments and the inherence of rights which makes trade-offs generally unacceptable, must be embedded in the IA process. Ecological IAs (EIA, strategic environmental assessment etc.), interest and right-based IAs (social impact assessment, human rights impact assessment, gender-based assessment plus etc.), and dimensional IAs (life cycle assessment, cumulative effects assessment, life cycle assessment, transboundary impacts assessment etc.) all address different aspects of a vision of just transition focused on socio-ecological wellbeing.

Meinhard believes that high-level assessments like strategic and regional assessment “offer significant opportunities” for just transition. His position is supported by theories of change and the scholarship, studies, and emerging anecdotal evidence on just transition policies. The most successful just transition policies are those founded on well-crafted long-term plans. The more sudden a ‘transition’, the more likely that it will be unjust. Indeed, this is one of the attractions of IA as a just transition tool. Elementarily, IA is an ex-ante predictive and planning mechanism. Strategic assessment, in theory, is a tool for articulating long-term vision for sustainability. It is, generally, unmoored from the deep-seated and vested interests that limit the sustainability-value of project assessment. Strategic assessment could be as broad as focusing on climate change and pathways for addressing it (for example, Canada’s Strategic Assessment on Climate Change (SACC) could have achieved this end except that it was crafted as a ‘Guidance’ for assessing climate change), or more narrowly to focus on a specific sector (for example, Canada’s prematurely terminated strategic assessment on thermal coal). At this strategic level, contesting visions and values could be accommodated; transformative learning can be achieved; and equity and effectiveness can be more intentionally made the essential footholds of transition decisions.

“I could be wrong about this, but my sense is that you need to consider anything that is done under the heading of ‘impact of response measures’ through the lens of how this is perceived within the UN climate regime. Essentially, this is seen by most developed countries as a money grab and/or stall tactic by Saudi Arabia and other OPEC countries opposed to climate action.” – Meinhard Doelle

More specifically, on the consideration of just transition when climate change is incorporated into IA, Meinhard did not dispute the argument that, so far, efforts to incorporate climate change into impact assessment fall short of the standard needed to address climate change effectively and equitably. He, however, was not too sold on my argument that the expectation that the ‘impact of response measures’ would be assessed under the international climate regime translate to an expected standard of conduct for countries. This is more so as the language of ‘impact of response measures’ has been coopted by fossil fuel dependent economies (FFDEs) as ‘a money grab and/or stall tactic’. However, other than the difference in nomenclature ‘just transition’ substantially focuses on similar concerns as the ‘impacts of response measures’ framework under international climate regime. The bottom line is that transition decisions are not without impacts, and for transition to be just, there is at least an expectation under international climate law that such impacts will be assessed. More importantly, for climate change and impact assessment to be truly effective it must align with key characteristics of climate change including – the global and multi-sectoral nature of the sources and impacts of climate change; climate change adaptation and loss and damage (locally and globally); delayed and cumulative nature of climate impacts and the causation challenge; and need for ambitious and immediate climate action.

A JTIA Framework for an Explicit Consideration of Justice in Impact Assessment

Although conventional IA holds opportunities for the consideration of just transition impacts, the JTIA framework consists of principles to guide such consideration. To reiterate, socio-ecological wellbeing is at core of my conception of just transition. The first and overarching principle of the JTIA framework is, therefore, the adoption of ecological and human wellbeing as the primary objective of transition decision making. Meinhard, however, identified the anthropocentricity of just transition as a potential barrier to just transition being a useful site for the integrated consideration of ecological and human wellbeing.

Guiding Principles for Just Transition Impact Assessment

Adopt ecological and human wellbeing as the objective of transition activities.
Ensure that transition decisions are sensitive to vulnerability.
Consider the principle of differentiation in decision making.
Ensure that life cycle, cumulative, regional, and transboundary impacts are considered.
Adopt a rights-based approach to social dialogue and ensure participatory parity.

While the conventional narrowly scoped understanding of just transition might very well fall under Meinhard’s criticism, the socio-ecological wellbeing emphasis of my vision of just transition is, in part, developed to address such pushback. In any case, as others have argued, human wellbeing and ecological wellbeing are fundamentally connected. Transition decisions should be considered in the broader context of their contribution to the diversity and resilience of ecosystems. This is what Meinhard meant when he cautioned that climate transition should not be conflated with sustainability transition, as the former does not always lead to the latter; but it should. As already noted, human rights and sustainable development goals, while limited, are useful proxies for considering the impacts of transition decisions on human wellbeing.

“Isn’t “just transition” also quite anthropocentric? Does JT do a better job integrating ecosystem wellbeing with human wellbeing?” – Meinhard Doelle

With wellbeing as an objective, it is essential that decision makers pay particular attention to vulnerability and apply the principle of differentiation in transition decision making. Common but differentiated responsibilities (CBDR) is a core principle of international climate change law for the equitable allocation of the obligations and benefits of the transition. There is an argument to be made for a CBDR mindset within States. It is a mindset that recognizes responsibility, capability, and circumstances in IA and eventual transition decisions. The differentiation principle also applies in the context of considering the transboundary impacts of transition decisions. In addition, as Meinhard had noted, high level assessments like regional and cumulative assessment are very important to understanding the interconnected nature of transition impacts both temporally and spatially.

“I am not sure how helpful the Strategic Assessment of Climate Change (SACC) example is, given how far removed that is from any form of shared decision making or consensus-based decision making … as a result, the example seems disconnected from the points you are trying to make.” – Meinhard Doelle

Meinhard highlighted the importance of “shared decision making or consensus-based decision making” to any meaningful application of impact assessment for just transition ends. This is one of his primary criticisms of the Canadian SACC; a critique that equally applies to Canada’s policy statement on thermal coal mining. While all just transition schools of thought accept social dialogue has a central element, standards of dialogue differ. In the JTIA context, rights-based and parity-sensitive dialogue is emphasized. Rights-based dialogue not only elevates social dialogue for transition decision to the status of a legal duty, but it also embraces the reality of dialogue as a spectrum ranging from consent to information depending on the nature of rights and potential harm. Social dialogue is parity sensitive when the issue of power is explicitly addressed, parity impeding norms are identified and revoked, and the independence and agency of parties are protected and supported.

As far as the potentials of impact assessment for real and meaningful climate action in Canada goes, only a few have contributed as much as Meinhard. He was cleareyed about the limitations of the practice of IA, yet he clearly saw the possibilities in IA and led the charge in making IA a more useful tool for sustainability. His work with John Sinclair on the next generation of impact assessment is proof. I am one of the lucky few to benefit directly from the beauty of Meinhard’s mind and heart. But many more will yet benefit from systems which have gotten better because of his contributions.

Upcoming Canadian Country Visit of the Special Rapporteur on Human Rights and Toxics

April 13, 2019 Sara Seck Leave a Comment

By Associate Professor Sara Seck and JD candidate Meg Williams, Schulich School of Law, Marine & Environmental Law Institute, Dalhousie University. Sara.Seck@dal.ca

It has just been announced that the UN Special Rapporteur on human rights and toxics, Baskut Tuncak, will conduct an official country visit to Canada from 24 May to 5 June 2019. The Special Rapporteur has issued an invitation to all interested individuals and organizations in Canada, including civil society organizations, activists, and academics, to submit information that they consider relevant in preparation of this visit by 15 April 2019 to srtoxicwaste@ohchr.org. The information may be sent in English or French and must not be longer than 10 pages.The call for submissions is now online and is available in both English and French. The Special Rapporteur is interested in receiving information on “human rights and and exposure to toxic substances and wastes in Canada, including on pollution, contamination, occupational diseases linked to toxic exposures, toxic consumer products, and other sources of exposure to hazardous substances and wastes.” He has also expressed interest in receiving information on “cases concerning activities of Canadian businesses operating abroad.” Among priority concerns are “circumstances involving toxic exposures of children, indigenous peoples, workers, low income communities, and other groups at high risk.” Information on legal frameworks for the regulation of human rights and toxics in Canada is also invited, as well as contact information for organizations and civil society representatives who wish to meet with him during the country visit.

In our last blogpost, we reflected on recent work of a different United Nations Human Rights Council Special Rapporteur, the Special Rapporteur on human rights and the environment, and drew attention to the 2018 Framework Principles on Human Rights and the Environmentand its implications for local environmental justice concerns. In light of the upcoming visit by the Special Rapporteur on Toxics, we will consider a selection of his reports, building on our previous consideration in an earlier blogpost of Mr. Tuncak’s 2015 reporton the right to information. Specifically, this post will focus on Mr. Tuncak’s 2016 report on The Rights of the Child and Hazardous Substances and Wastes(2016, A/HRC/33/41), as well as his 2018 report on the The Rights of Workers and Toxic Chemical Exposure(2018, A/HRC/39/48), while also referring to the 2017 Guidelines to Good Practices(2017, A/HRC/36/41).

Mr. Tuncakassumed the mandateas the Special Rapporteur on Toxics in 2014, taking over from the previous Special Rapporteur, Mr. Calin Georgescu. The UN Human Rights Council mandates the Special Rapporteur to provide comprehensive and current information on the impacts of hazardous substances on human rights, and covers all hazardous substances and wastes that are used, produced and released by human activity. Mr. Tuncak’s 2014 mandate reaffirms the commitments of the 2012mandate of Mr. Georgescu which notably calls for the monitoring of not only States but also “transnational corporations and businesses enterprises in connection with the environmentally sound management and disposal of hazardous substances and wastes” (para 2(a)). As a result, Mr. Tuncak’s reports pay close attention to the responsibilities of business enterprises in regards to the issue of toxics and human rights.

Mr. Tuncak’s2016 report focuses specifically on childhood exposure to toxic substances and the resulting human rights impacts. The report examines how children’s rights are violated by State and business actors through exposure to toxic chemicals and pollution. Mr. Tuncak describes the impacts of toxics and pollution as the “silent pandemic” as children are born “pre-polluted” resulting from maternal exposure that continues after birth and into childhood (para 5). He takes notice that children of low-income, Indigenous, or marginalized communities are at greater risk to exposure, leading to questions of environmental racism that undermine equality and non-discrimination (para 6). The report recognizes that the impacts of toxics and pollutants on children are affected by their familial, communal, and environmental situation.

The Convention on the Rights of the Childprovides guiding principles for State obligations in preventing childhood exposure from toxics and pollutions, and Mr. Tuncak elaborates upon eleven State obligations in his report. These include implementation of the best interests of the child framework (para 19-21) as well as the right to be heard (paras 22-26), the right to life, survival and development (paras 27-28), the right to physical and mental integrity (paras 29-38), the right to effective remedy (paras 39-43), the right to the highest attainable standard of health (paras 44-48), the right to a healthy environment (para 49), the right to adequate standard of living (para 50), the right to non-discrimination (paras 51-53), the right to be free from the worst forms of child labour (paras 54-56), and the right to information (paras 57-61). The report observes that “toxics released into air, wind and water can directly or indirectly lead to childhood exposure, impacting on the child’s right to health.” (para 49). In this sense, children are not treated as bounded autonomous individuals but instead are understood as embodied beings who are inseparable from the environments in which they live.

The 2016 report also considers the business responsibility to prevent the exposure of children to toxics. Businesses are to undertake human rights due diligence to prevent childhood exposures (paras 75-78), to prevent toxic exposure at all points in business activities (paras 79-89), to ensure responsible business relationships (paras 90-97), and to ensure effective remedy through non-recurrence, rehabilitation, and compensation (paras 98-106). Notably, Mr. Tuncak links business activities and industrialization to toxics and pollutants in the environment, and in turn to the adverse effects on children. However, this report does not link labour and employment conditions, and the exposure of workers, to childhood exposure, an issue that is taken up in subsequent reports.

In 2017, Mr. Tuncak released a Guidelines for Good Practices report in response to the disparities existing within and among countries in reducing the impacts of hazardous substances. The Guidelines acknowledge both the duties of States and the responsibilities of businesses in addressing these disparities. The Guidelines highlight the foundational obligation of States to “respect, protect, and fulfill recognized rights implicated by the production, use, release, storage and disposal of hazardous substances and wastes” (para 4), including the rights of those impacted by transboundary and transnational harms. Additionally, the report confirms that special attention is required with regard to the rights of vulnerable populations, including low-income communities, children, workers, older persons, Indigenous peoples, minorities, post-conflict communities, and vulnerable genders. With regard to businesses, the Special Rapporteur confirms that “virtually all businesses bear some responsibility” (para 81) to respect the human rights that are impacted by their activities, supply chains, products, policies, procedures, and business relationships. He notes that due diligence is fundamental to this responsibility, and then outlines a number of responsibilities of businesses in regards to reducing human rights impacts of toxics. These include the duty of businesses to identify and assess the potential human rights impacts of their activities. Importantly, this means that businesses must “go beyond mere compliance with existing legislation and regulations” (para 83) which is usually behind compared to rapid industrial sector expansion. Second, businesses have the responsibility to prevent and mitigate the impacts on human rights. Prevention of impacts is most effectively achieved through the elimination of hazardous substances from business activities while mitigation should occur immediately, even before the State gives orders to do so. The third responsibility outlined is the duty to account for efforts to address the impacts on human rights. This involves publicly communicating information about the risks created by business activities as well as mitigation plans to address the actual and potential impacts involved.

While the 2017 Guidelines Report focuses briefly on the rights of workers, the2018 report “The Rights of Workers and Toxic Chemical Exposure” is devoted to this issue, and proposes principles to guide State and non-State actors in protecting workers from toxic occupational exposures and to provide remedy for rights violations. The report examines the human rights of workers affected by their occupational exposure to toxic and hazardous substances, a summary of the current challenges facing workers globally, and proposed principles to respect and protect the rights of these workers (para 10). He notes that worker’s rights and human rights are “interrelated, indivisible and universal” (para 14) in that no worker can be deprived of their civil, political, economic, social or cultural rights based on the work that they perform (para 14). The Special Rapporteur also examine the challenges in realizing the rights of workers affected by toxic substance exposures. These challenges include inadequate standards of protection (para 38), limited progress in preventing exposure (paras 39-41), poor monitoring and enforcement gaps (para 42), the exploitation of those most at risk, including those living in poverty (paras 45-46), women (para 48), children (paras 49-50), migrant and temporary workers (para 51-52), workers with disabilities (para 53), and older worker (para 54). Additionally, the report notes the challenges introduced by the informal economy (para 55), the deliberate efforts to delay or obstruct protection (paras 56-58), the opaque nature of supply chains (paras 59-60), the disconnected efforts on occupation and environmental health (para 61), failures to realize the right to information (paras 62-66), limited implementation of ILO instruments (paras 67-68), restrained freedom of association (para 69), and inaccessible remedies, justice, and accountability (paras 70-71).

Following an examination of the current state of workers’ rights in light of exposure to toxic substances, and challenges for realizing such rights, the Special Rapporteur proposes 15 Principles to assist States, businesses and other stakeholders to protect, respect, and fulfil the human rights of workers who have been victims of occupational exposures to toxic and hazardous substances (para 73). These are grouped into three subsections: (A) Principles on duties and responsibilities to prevent exposure, (B) Principles regarding information, participation and assembly, and (C) Principles regarding effective remedies. Without going into detail on the 15 Principles, some are worth further reflection. For example, Principle 7 acknowledges that protecting workers from exposure to toxic substances will in turn protect their families, their communities and the environment. Additionally, Principles 13 and 14 recognize the importance of considering the burden of exposure on workers’ families.

These principles, together with the observation in the 2016 report on Children’s Rights that“toxics released into air, wind and water can directly or indirectly lead to childhood exposure, impacting on the child’s right to health” suggest an awareness that individuals, whether adults or children, should not be viewed as surrounded by impermeable boundaries that are capable of protecting individual autonomy from the toxins that exist in workplaces and local environments. This need to move beyond an understanding of the worker as a bounded autonomous individual is something that I have explored in a recently published article in the Canadian Journal of Law and Society entitled Transnational Labour Law and the Environment: Beyond the Bounded Autonomous Worker.* There, I suggest that reconceptualizing the worker as a relational being, rather than a bounded autonomous citizen, may help to bridge labour and environmental law, two disciplines that too often operate in silos.

Currently, the focus of international and transnational labour law is primarily on workers and their rights so that they may work without fear and with the assurance of a sustainable livelihood. However, I propose that it may be helpful to reframe transnational labour law to better embrace environmental rights. For example, we might reimagine the individual worker as a corporeal citizen who is embedded in a material environment, and so better appreciate that workers and children exposed to toxics arising from industrial activities cannot be viewed as autonomous individuals separate and distinct from families, communities, and environment. This holistic approach reinforces the interdependent duties of both States and businesses to protect both workers and the environment in which they and their families live. As I observe in my article, signs of such a conceptual shift are evident in a2015 studyby UNICEF which recognizes that the rights of children of predominantly female garment workers in Bangladesh were affected by the working and living conditions of the garment worker through impacts relating to the conditions inside and outside of the factory. This focus on the worker as a family and community member, and specifically their role as a parent, aligns with the Special Rapporteur’s reports on Children’s Rights and the Rights of Workers which, in light of their focus on toxic substances, illustrate a shift from thinking of the worker as an autonomous bounded individual to viewing the rights of workers as interdependent with rights to live in a clean and healthy surrounding environment.

The upcoming Canadian country visit by the UN Special Rapporteur on Toxics provides an opportunity to reflect upon these issues and, more pressingly, to take action to prevent and remedy harms. For further information on previous country visits by other UN human rights Special Rapporteurs to Canada, as well as other human rights reviews, see here. For outcome reports of other country visits by the UN Special Rapporteur on Toxics, see here.

*Sara L Seck, “Transnational Labour Law and the Environment: Beyond the Bounded Autonomous Worker” (2018) 33:2 Canadian Journal of Law & Society 137-157, published online 5 September 2018, https://doi.org/10.1017/cls.2018.15

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