Introducing the Impact Assessment Act's Sustainability-Based Agenda
Author | Robert B Gibson |
Pages | 194-216 |
194
9
Introducing the Impact Assessment Act’s
Sustainability-Based Agenda
Robert B Gibson
A. INTRODUCTION
The Impact Assessment Act (IAA)1 promises a signicant 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 signicant adverse eects 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 eects on the biophysical environment and their conse-
quences.2 Attention to cumulative environmental eects 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 (denitions of “environment”
and “environmental eect”) and 16 [CEAA 1995]; and Canadian Environmental Assessment
Act, 2012, SC 2012, c 19, s 52, ss 2 (denitions of “environment” and “environmental
eects”), 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 specied 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 eects, in
Introducing the Impact Assessment Act’s Sustainability-Based Agenda |195
However, the core agenda was to identify the potential adverse bio-
physical eects of assessed projects, determine which adverse eects
would be signicant, and encourage mitigation of these eects.
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 signicant
adverse environmental eects, if approval was “justied in the circum-
stances.”3What might be justiable “in the circumstances” was not dened
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 eects suciently desirable to justify
acceptance of signicant adverse environmental eects. However, these
anticipated positive eects lay outside the typical scope of eects identi-
ed and evaluated in an assessment process focused on adverse eects.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 eects and their mitigation or justication.
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 denes “sustainability” as “the ability to protect
a few cases extending to sustainability eects. 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 “benets to Canadians” in the event that signicant eects were predicted and
a “justied 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.
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