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Sunny Ways for EAs? The 2017 Forecast for Federal Law Reform

In mid-2016, the Government of Canada established a four-member Expert Panel to undertake cross-country consultations and to provide recommendations on how to fix the broken federal environmental assessment (EA) process.

Since its inception, the Expert Panel hosted numerous public hearings, workshops and technical briefings. Similarly, the Panel solicited written submissions from individuals, groups, industrial/commercial sectors, governmental officials and indigenous communities. CELA appeared as a witness before the Panel in November 2016, and filed preliminary submissions and final submissions for the Panel’s consideration.

The public comment period closed in late December 2016, and the Expert Panel is scheduled to submit its advisory report to the federal government by the end of March 2017. All written submissions received by the Panel have been web-posted.

Upon review of these submissions, it appears to CELA that many participants in the Expert Panel proceedings have expressed strong support for fundamental reform of the current federal EA regime. While submissions from proponent interests tend to favour retaining (or tweaking) the status quo under the Canadian Environmental Assessment Act, 2012 (CEAA 2012), a large number of submissions advocate repealing CEAA 2012 and replacing it with “next generation” legislation that focuses on environmental and socio-economic sustainability.

In particular, the Expert Panel record demonstrates widespread public and indigenous support for a new federal EA regime that:

  • establishes sustainability as the core objective of the new assessment process;
  • facilitates cooperative multi-jurisdictional assessments where applicable within Canada’s federal system of governance;
  • sets out clear requirements for rigorous information-gathering, independent decision-making, and effective post-decision monitoring, reporting and enforcement;
  • retains project-level assessments, but also requires strategic- and regional-level assessments of governmental plans, policies and programs, particularly in relation to cumulative effects;
  • ensures meaningful public and indigenous participation (including appropriate funding assistance) at all stages of the assessment process;
  • addresses Canada’s climate change targets, timeframes and other international obligations; and
  • incorporates the principles of the U.N. Declaration on the Rights of Indigenous Peoples in order to advance reconciliation efforts and safeguard indigenous rights/interests.

It is now up to the Expert Panel to determine whether the proposed shift to sustainability assessments is warranted in the public interest, and if so, how this fundamental change should be implemented at the federal level. Given that the prevailing winds of change are blowing strongly towards adoption of “next generation” legislation, it is reasonable to anticipate that sustainability assessments will figure prominently in the Expert Panel’s forthcoming report.

However, once the Panel’s report has been released (which may trigger further public comment opportunities), the forecast for federal EA reform becomes somewhat cloudy and unclear, particularly in terms of timing.

For example, even if sustainability assessments are endorsed in principle by the Government of Canada, it is conceivable that “next generation” legislation might not be fully passed and duly proclaimed into force prior to the next federal election. In addition, Parliament’s legislative agenda may be crowded with other initiatives arising from the separate but related reviews of the National Energy Board and the previous government’s changes to the Fisheries Act and Navigable Waters Protection Act.

Nevertheless, in light of Prime Minister Trudeau’s commitment to entrench a federal EA process that is robust, evidence-based, participatory and credible, CELA concludes that it is imperative for the current government to expedite the enactment of “next generation” legislation. Why? Because it is 2017.