Introducing the Impact Assessment Act's Sustainability-Based Agenda

• Author: Robert B Gibson
• Pages: 194-216

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Introducing the Impact Assessment Act’s

Sustainability-Based Agenda

Robert B Gibson

A. INTRODUCTION

The Impact Assessment Act (IAA)1 promises a signicant expansion of

the agenda for federal-level assessments in Canada. Simply stated, the

expansion of scope and ambition is from assessments centred on the

mitigation of signicant adverse eects on the biophysical environ-

ment to assessments encouraging positive overall contributions to sus-

tainability. On the surface, at least, that is a substantial leap.

The IAA’s federal predecessors — the policy-based Environmental

Assessment and Review Process (EARP) in the 1970s and early 1980s,

the unintentionally binding EARP guidelines order of 1982, and the

1995 and 2012 versions of the Canadian Environmental Assessment Act — all

focused on the eects on the biophysical environment and their conse-

quences.2 Attention to cumulative environmental eects was included.

1 SC 2019, c 28, s 1.

2 Environmental Assessment and Review Process Guidelines Order, SOR/84-467 (22 June 1984);

Canadian Environmental Assessment Act, SC 1992, c 37, ss 2 (denitions of “environment”

and “environmental eect”) and 16 [CEAA 1995]; and Canadian Environmental Assessment

Act, 2012, SC 2012, c 19, s 52, ss 2 (denitions of “environment” and “environmental

eects”), 5 and 19 [CEAA 2012]. The entry into force of the 1992 Act was delayed until

1995 to allow for key regulations to be developed and passed. CEAA 2012 attempted to

limit attention to narrowly specied areas of federal legislative jurisdiction.

In cases involving joint review panels established in cooperation with other assess-

ment jurisdictions, assessments could be mandated to consider additional eects, in

Introducing the Impact Assessment Act’s Sustainability-Based Agenda |195

However, the core agenda was to identify the potential adverse bio-

physical eects of assessed projects, determine which adverse eects

would be signicant, and encourage mitigation of these eects.

The possibility of further breadth at the decision-making stage was

incorporated in the earlier assessment laws through provisions that

allowed decision makers to approve projects with predicted signicant

adverse environmental eects, if approval was “justied in the circum-

stances.”3What might be justiable “in the circumstances” was not dened

in law or policy, nor were the provisions for such approvals accompanied

by requirements for publication of the reasons for decisions. Logically,

the potentially relevant circumstances included anticipated positive eco-

nomic, social, political, or other eects suciently desirable to justify

acceptance of signicant adverse environmental eects. However, these

anticipated positive eects lay outside the typical scope of eects identi-

ed and evaluated in an assessment process focused on adverse eects.4

Because the associated decision making was not transparent, the actual

scope and rigour of decision-makers’ evaluations in these cases are not

known. Even with these uncertain “in the circumstances” exceptions,

however, the predominant focus of federal assessments prior to the IAA

was on adverse biophysical eects and their mitigation or justication.

In contrast, the IAA explicitly embraces a broader and more ambi-

tious agenda. Its core decision-making requirements include mandatory

consideration of the extent to which a proposed project “contributes to

sustainability.”5 The Act denes “sustainability” as “the ability to protect

a few cases extending to sustainability eects. See Robert B Gibson, “Sustainability

Assessment in Canada” in Alan Bond, Angus Morrison-Saunders & Richard Howitt,

eds, Sustainability Assessment: Pluralism, Practice and Progress (Abingdon, Oxon, UK:

Routledge, 2013) 167.

3 CEAA 1995, above note 2, s 37; see also s 23; and CEAA 2012, above note 2, ss 31, 52, & 53.

4 The partial exception is that guidelines for the preparation of environmental impact

statements issued under CEAA 2012 typically required proponents to report on antici-

pated “benets to Canadians” in the event that signicant eects were predicted and

a “justied in the circumstances” decision was needed. See, for example, Guidelines for

the Preparation of an Environmental Impact Statement for an Environmental Assessment

Conducted Pursuant to the Canadian Environmental Assessment Act, 2012: Murray River

Coal Project (30 July 2013) at 37, online (pdf): Canadian Environmental Assessment Agency

www.ceaa.gc.ca/050/documents/p80041/94123E.pdf.

5 The “contribution to sustainability” requirement is the rst of ve core components

of the public interest determination to be made by decision makers in each project

assessment. See s 63 of the IAA, above note 1.