Intervenor: Vol 24. No 4 October - December 1999

Reviewing CEAA: Quick Fix or Real Reform

The Canadian Environmental Assessment Act (CEAA) has been in force for the past five years. However, it is questionable whether CEAA is actually achieving its lofty goals of promoting sustainable development and maintaining a healthy environment and healthy economy.

This fundamental question is now squarely on the table as the federal government carries out the mandatory Five Year Review of CEAA. Broad public consultation began in December 1999, and will include a number of national and regional workshops from January to March 2000. To facilitate public participation in the Review, the Canadian Environmental Assessment Agency has produced a detailed, 68-page discussion paper which outlines possible improvements to CEAA and its implementation. (It's on the CEAA website at Environment Minister David Anderson has indicated that he intends to report to Parliament on the results of the Review before the end of this year.

Overview of CEAA

As currently drafted, s.5 of the CEAA generally requires the preparation of an environmental assessment (EA) where a federal authority:

  • is the proponent of a "project" (ie, physical work or prescribed physical activity);
  • provides financial assistance to enable a project to be carried out;
  • disposes of federal lands to enable a project to be carried out; or
  • issues a prescribed federal permit or approval to enable a project to be carried out.

In addition, under s. 48, an EA may be required where there will be an impact on FN lands, including land claim areas and s.35 lands (although, in these cases, the EA is held at the Minister's discretion).

The required EA may take different forms under CEAA, depending on the nature of the project and the significance of potential environmental effects. For example, projects may be assessed through a "screening" (or class screening), a comprehensive study, or a review by an independent panel or mediator. CEAA sets out the various factors to be considered during the EA, such as: the project's likely environmental effects (including cumulative effects); the significance of these effects; public comments; and mitigation measures.

Once the required EA has been completed, the responsible federal authority must take it into account and determine whether the project is likely to cause significant environmental effects. If it is determined that, despite mitigation measures, the project is likely to cause significant adverse environmental effects which cannot be justified in the circumstances, then CEAA prohibits the responsible authority from exercising any power or performing any duty which would enable the project to proceed.

Need for Reform

When CEAA was first enacted, some observers welcomed it as an improvement over the previous federal EA process known as the Environmental Assessment and Review Process (EARP). Among other things, these observers lauded CEAA since it placed the federal EA process on a firm legislative basis for the first time, and since CEAA codified certain public participation tools, such as public registries for EAs prepared under CEAA. Critics, however, pointed out a number of shortcomings in CEAA which persist to date, such as:

  • the narrow definition of "project", which excludes too many environmentally significant undertakings (ie, economic policies, plans or programs) from CEAA coverage;
  • the highly discretionary (if not overpoliticized) decision-making powers conferred upon responsible authorities (who, in some instances, are the proponents of the very projects under consideration);
  • the non-binding nature of review panel recommendations under CEAA;
  • the inadequacy of ad hoc participant funding programs under CEAA; and
  • the sheer complexity and byzantine nature of the decision-making process under CEAA.

In light of these and other problems, concerned citizens' groups and First Nation communities have been compelled to launch a number of court cases over the past five years to challenge the adequacy of EAs conducted under CEAA, or to challenge the adequacy of public consultation exercises under CEAA. Ironically, similar kinds of court challenges under EARP (eg, the Oldman Dam case) helped motivate the federal government to enact CEAA in the first place. At the very least, the fact that CEAA, too, is being litigated in the courts contributes to general uncertainty and unpredictability in the federal EA process and, more importantly, confirms the desirability of further legislative and regulatory reform.
Indeed, the CEAA discussion paper itself identifies three main objectives for the Five Year Review:

1. Make the federal EA process more predictable, consistent and timely (ie, improve coordination, streamline EA requirements for small, routine projects, etc.).
2. Improve the quality of EAs (ie, develop better guidelines, training programs, quality assurance programs, monitoring programs, etc.).
3. Strengthen opportunities for public participation in the federal EA process (ie, enhance access to information requirements, develop more appropriate mechanisms for First Nation involvement, etc.).

It remains to be seen whether Parliament will be content to merely tweak or fine-tune the current CEAA model, or whether MPs will be prepared to undertake substantive reform to transform CEAA into truly effective and efficient legislation.

Rick Lindgren is a lawyer at CELA