On February 8, 2018, Federal Environment Minister Catherine McKenna introduced Bill C-69, An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigation Protection Act and to make consequential amendments to other Acts. While this bill creates substantial changes to a number of existing pieces of legislation, it most notably overhauls our current Canadian Environmental Assessment Act.
One of Minister Mckenna’s stated goals of the new legislation was to provide greater clarity and certainty about how the process works to all of those involved. She also announced that over $500 billion in resource projects were planned in Canada over the next ten years.
The new legislation establishes one major decision making body – the Impact Assessment Agency of Canada – in order to conduct and coordinate impact assessments in Canada. This means both the Department of Fisheries and Oceans, as well as the National Energy Board (a body also overhauled by Bill C-69), will no longer have the power to conduct proposed project assessments.
The legislation also set out a preamble section, which was missing from the previous Act. The new proposed preamble sets out the government’s commitment to reconciliation with First Nations, through renewed “nation-to-nation” and “government-to-government” communication. While these provisions are on their face aspirational, they may play an important role in future judicial decisions requiring a contextual approach of this legislation.
Factors to be considered
The new proposed section 22(1) contains a broad range of factors that must be taken into account during an impact assessment. Notably, these include: the impact of a proposed project upon Indigenous rights, alternatives to the project (in the previous Act this only involved alternative means in carrying out the project), traditional and community knowledge, and the intersection of sex and gender with other identity factors.
One concern that has already been raised is the weight to be given to each of these factors. For instance, it is unclear whether economic factors will be allowed to trump environmental ones. As was the case in the previous Act, the Agency, or the Minister, in the case of a review panel, still has the power to determine the scope of these factors, under the new s. 22(2).
Despite the fact that Minister McKenna claims that the new process will provide greater certainty and predictable outcomes, it is hard to see how this will be the case when factors such as considering traditional Indigenous knowledge are required. The government has a history of not always conducting consultation in a meaningful way, and specifically, ignoring traditional indigenous knowledge. It is unclear whether government will meaningfully consult, and consider such knowledge, just because it has been included more explicitly in legislation.
As well as mandating the consideration of indigenous knowledge, the new legislation also provides for greater financial support for both Indigenous peoples and the public in their participation process. This was something that was heavily criticized in both the current federal act, as well as in our provincial legislation.
One problem with the new Act is that it does not specifically make reference to, or entrench the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), nor notions of free, prior and informed consent. Environment Minister Catherine McKenna has mentioned that the new changes are in line with UNDRIP, and that this is what the government is trying to “strive for,” however, she also admitted that “it is not always going to be possible.”
It will be curious to see how this proposed legislation will interact with another proposed bill, Bill C-262, An Act to ensure that the laws of Canada are in harmony with the United Nations Declaration on the Rights of Indigenous Peoples, which has recently passed it’s second reading at the House of Commons. If this bill is enacted, the requirement that Indigenous people’s must provide their “free, prior and informed consent,” may significantly fetter the amount of discretion still held by the government under the proposed Impact Assessment Act.
Critics of the new legislation have already identified the fact that the new legislation, while providing for greater consultation and participation, does not provide for significant accommodation of Indigenous concerns. While the government has committed to Indigenous consultation early and “up front” in the impact assessment process, it remains to be seen whether the new legislation will adequately provide for accommodation of indigenous concerns. If accommodation is not adequately provided for, the new legislation could merely be another box ticking exercise by the Federal government.
Review Panel Composition
Under the new proposed section 41(1), if an impact assessment is referred to a Review Panel, this panel must be composed of at least one member who is unbiased, free of conflict of interest to the proposed project, and who has knowledge of the Indigenous concerns relating to a project. It will be interesting to see how the Federal government fulfills this mandated requirement in future review panels, and how they will be able to determine whether the panel member has sufficient “knowledge of Indigenous concerns.” With the National Energy Board, the experience with the composition of review panels for large regulatory projects, such as Enbridge’s Northern Gateway Pipeline and Kinder Morgan’s TransMountain Pipeline, has been that members from industry or with deep industry connections have dominated such panels. Just last year, an expert for a proponent, TransMountain, was appointed to the National Energy Board in the middle of the TransMountain review process.
Lisa C. Fong and Kimberly Webber