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.