Environmental Assessment

• Author: Jamie Benidickson
• Pages: 257-279

257

CHA PTER 12

ENVIRONMENTAL

ASSESSMENT

A. OVERVIEW OF ENVIRONMENTAL

ASSESSMENT

Environmental assessment, in the opinion of the Supreme Court of

Canada, is “a plann ing tool that is now generally regarded as an inte-

gral component of sound decision-making.”1 It is important, again in

the words of the Court, because “the g rowth of modern societies has

shown the serious problems that ca n result from anarchic development

and use of land, in part icular those problems concerning public health

and the environment.”2

The basic idea is that certain proposed activities should be scrutinized

in advance from the perspective of their possible environmental conse-

quences. However, challenging design and operational questions may

arise in the process of implementing this idea, and there has been con-

siderable divergence of opinion about the legal status and weight to be

given to assessment processes. At one extreme of the spectrum of opin-

ion are those who think that assessment — not a bad idea in principle —

is something that should be dispensed with in the interests of gettin g on

with the real job of economic development. At the other end are those

who view the satisfactory completion of a rigorous and comprehensive

1 Friends of the Ol dman River Society v Canada (Ministe r of Transport), [1992] 1

SCR 3 at 71 [Oldman River].

2 R v Al Klippert Ltd, [1998] 1 SCR 737 at para 16.

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environmental assessment as an essential precondition of proceeding

with any proposal. Jocelyn Stacey has articulated the latter perspective in

a particularly comprehensive manner that combines an understanding

of specif‌ic objectives of environmental assessment with an apprecia tion

of fundamental legal considerations.3 Noting f‌irst that environmental

assessment procedures promote sustainable development, public par-

ticipation, Indigenous consultation, and intergovernmental coordina-

tion, among other direct contributions to environmental law, she goes

on to suggest that:

Environmental a ssessment ca n also be understood as prov iding a

framework for publicly justif ying environmental de cisions on the basis

of underlying constit utional principles of fai rness and rea sonableness

. . . . In Cana da, environmental a ssessment is t he primary mea ns by

which the federal govern ment meets its rule-of-law obligat ion to pub-

licly justify it s environmental dec isions. Environmenta l assessment

can thus be under stood as having a qu asi-constitutiona l role because

it provides the mean s through which the government can ful f‌il its con-

stitutional obligation to gover n according to the rule of law.4

Even among those who accept the importance of environmental

assessment, there are signif‌icant divergences of opinion concerning

the scope and implications of such proceedings. Generally, however,

the designers of most environment al assessment regime s will address

questions such as the following:

1) To what activities does the environmental assessment process

apply? To large or small operations; public or private operations;

projects only, or also plans, programs, and even policies th at are

less directly as sociated with immediate physical impacts?5

2) By whom should the assessment be car ried out? By the initiator of

the proposal, professional consultants, or an independent body?6

3 J Stacey, “The Environmenta l, Democratic and Rule-of-Law Implic ations of

Harper ’s Environmental Asse ssment Legacy” (2016) 21:2 Review of Constit u-

tional Studies 165.

4 Ibid.

5 Off‌ice of the Auditor Gener al of Canada, 2004 October Re port of the Commissioner

of the Environment and Sus tainable Development (Ottawa: O ff‌ice of the Auditor

General, 200 4) ch 4, “Assessing the Env ironmental Impact of Policies, Pla ns, and

Pr og ra ms .”

6 H Benevides, “Real Refor m Deferred: Analysi s of Recent Amendments to the

Canadian Environmental Assessment Act” (2004) 13 Journal of Environmen tal Law

& Pract ice 195.