In February, based upon the popular mythology that more participation will bring better Impact Assessment (IA) processes and results, the federal government introduced legislation to replace the Canadian Environmental Assessment Act (CEAA), introducing changes that have the potential to affect the licensing of new projects and natural resource developments. In Canada, undergoing a federal IA is considered a worst-case scenario for permitting and we can expect more projects to require this in the revised, and likely expanded, Designated Physical Activities Regulations. There is a potential that projects, such as potash developments, currently regulated only by provinces will end up captured by the federal process.
Despite the government’s IA reform promises of timeliness and predictability, the proposed legislation will deliver significantly more process at the front end to accommodate broader stakeholder input, and to align with other jurisdictions, including First Nations. (The bill indicates that under certain circumstances a First Nation could be another jurisdiction for the purposes of the act, but only partially spells out the criteria.) The new 180-day Planning Phase is billed as a planning tool, but allows the government to reject a project based solely on broad policy grounds. While there is merit in getting issues on the table early to aid in project design, the proposed process will exacerbate the current poor state of IA in Canada, which already suffers from a lack of predictability and timeliness. It is unlikely any form of consensus can be achieved with so many different voices and agendas involved, all with no requirements to follow the government’s timelines, or for the most part, skin in the game. It sets the stage for politics to override common sense and pragmatism when responsibilities and timelines are not placed on all participants.
The environmental assessment process in Canada is already an arduous journey for a proponent, and to add significantly more ‘soft’ process and political uncertainty compounds the risk to a proponent and cost for development. In fact, given the Planning Phase and its participation scope, and the requirement for ministerial or cabinet approvals at the end of the IA process, it appears specifically designed to allow for political interference. Government can add 80-day delays almost indefinitely under the proposed act to reflect its level of political discomfort.
In the bill, the government has enhanced the participation of Indigenous groups and raised the expectation that they will have an effective veto under the free and informed consent model. Proponents and Indigenous groups are both left with high expectations of success in the revised legislation but no mechanisms to ensure a common solution is reached. As now, it may remain the responsibility of the proponent to pre-emptively fashion agreements with Indigenous groups to get ahead of the IA process.
The federal government promises that it will be a more efficient and timely IA process. As a long time practitioner, it is difficult to see how this can happen with a larger audience for participation, increased participants funding, a mysterious Planning Phase, and all groups believing they have a veto, or at a least, the ability to manage the outcome. This makes the process ripe for conflict and politics.
Overall, the government is trying to fix what is not broken. What is broken is the government’s ability to act as the impartial brokers in the IA process after decades of neglect created by political expediency, which has devolved the IA process into decision making by vocal interest groups. Since the 1970s, environmental protection has evolved from a “mystery” into a sophisticated, well-regulated practice. As the science has become better understood, the focus has shifted to social justice and rights in order to focus opposition to projects.
Environmental protection is the result of a strong economy, and despite the naysayers, economic development and environmental protection, including the protection of human health and safety, are not mutually exclusive. Unfortunately, the new IA processes will help polarize those for and against development by providing more mechanisms for delay and challenge. This pushes the decision making to the political arena propelled by the most vocal.
The proposed IA process will create significant delays, missed opportunities and likely impact those that need that economic development the most: northern and Indigenous communities. The tragedy is that most parties can agree on the outcomes: prosperity and economic development that is protective of the environment and human health and safety.
MARK WITTRUP is vice-president, environmental and regulatory affairs, with Clifton Associates, based in Calgary.