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Federal EA Reform: The Perils of Overpromising and Underdelivering

Earlier this year, things looked promising for long overdue Parliamentary action to undo the regressive changes to the Canadian Environmental Assessment Act (CEAA) enacted by the previous government.

However, recent developments now call into serious question whether the current federal government is still willing to honour its public commitment to fix the broken CEAA regime.

In particular, the current government’s election platform contained a clear commitment to review and revise Canada’s environmental assessment (EA) processes in order to “regain public trust” and to ensure robust, participatory and evidence-based EAs.

This important commitment was also reflected in an October 2015 mandate letter from Prime Minister Trudeau to the Minister of the Environment and Climate Change.

Accordingly, the Minister appointed a well-regarded Expert Panel in June 2016 to conduct cross-Canada consultations on federal EA processes, and to provide recommendations for legislative reform. In late 2016, CELA submitted preliminary and final submissions to the Expert Panel.

In April 2017, the Expert Panel released its final report, which summarized the fundamental problems within the existing CEAA regime, and contained a number of well-founded recommendations intended to significantly improve federal EA processes.

Subsequent to the Expert Panel’s report, the federal government released a short Discussion Paper in June 2017 to broadly outline certain reforms that are apparently being considered by Cabinet at the present time.

During the public comment period, CELA and other groups, academics, EA practitioners and First Nation communities filed submissions which were highly critical of the limited vision, alarming lack of detail, and wholly inadequate reforms described in the Discussion Paper.

For example, CELA’s brief concludes that the Discussion Paper’s proposals are vague, unacceptable, and unlikely to achieve the federal government’s declared intention to properly remedy the existing deficiencies in federal EA processes.

CELA’s brief also notes several instances where the Discussion Paper significantly departs, without explanation or elaboration, from the Expert Panel’s key recommendations. For example, while the Expert Panel repeatedly recommended that environmental, social, health, economic and cultural sustainability should serve as the centrepiece of the new assessment regime, the Discussion Paper inexplicably fails to even mention the word “sustainability.”

In light of the Discussion Paper’s unsatisfactory proposals, CELA’s brief sets out 20 recommendations for federal EA reform, including:

  • CEAA 2012 must be wholly repealed and replaced by new comprehensive “next generation” legislation that fully entrenches the principles, processes and policies required to implement sustainability assessments at the federal level;
  • the new legislation should establish and empower an independent assessment authority (or commission), with quasi-judicial functions and powers, to lead federal assessment processes, to conduct public hearings, and to render final and binding decisions, subject to an appropriate judicial or administrative appeal mechanism; and
  • the new legislation should not require or permit the National Energy Board or Canadian Nuclear Safety Commission to lead, or co-lead, federal assessment processes, but should instead direct these regulatory bodies to participate in assessments led by the independent authority.

Despite the gaps, flaws and shortcomings in the Discussion Paper, CELA and other stakeholders across Canada continue to call upon the federal government to not squander this opportunity for generational law reform by simply tweaking the unacceptable status quo under CEAA.

Instead, CELA respectfully requests the Prime Minister and Cabinet members to deliver upon their commitment to enact meaningful reforms that will actually restore public trust and credibility to the widely discredited federal EA processes.