Sustainability-Based Decision Making

• Author: Robert B Gibson
• Pages: 301-325

301

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Sustainability-Based Decision Making

Robert B Gibson

A. INTRODUCTION

At the federal level, the Impact Assessment Act (IAA)1 moves Canada from

assessments focused on mitigating signicant adverse environmental

(biophysical) eects to assessments centred on contributions to sus-

tainability. The shi is rst signalled in the name of the Act, which no

longer features “environmental assessment.”2 Then, the denitions sec-

tion establishes that the scope of eects to be covered includes “chan-

ges to the environment or to health, social or economic conditions

and the positive and negative consequences of these changes.”3 Finally,

the sections on factors to be considered in project assessments, and

decisions about designated projects, include “the extent to which the

designated project contributes to sustainability.”

4 As was discussed in

Chapter 9, this new agenda represents a major expansion of scope and

potential ambition. Decision making seriously committed to positive

contributions to sustainability would certainly be an improvement over

decisions that aim only to reduce adverse eects. However, many key

aspects of the Act’s positive agenda are le minimally specied or only

1 SC 2019, c 28, s 1.

2 Previous versions of federal assessment legislation were titled the Canadian Environ-

mental Assessment Act – Canadian Environmental Assessment Act, SC 1992, c 37 and

Canadian Environmental Assessment Act, 2012, SC 2012, c 19.

3 Ibid, s 2, denition of “eects.”

4 Ibid, especially ss 22(1)(h) and 63(a).

      302

implicit in the legislation, with little clarication in the initial regula-

tory or policy guidance. This chapter looks more closely at the role of

sustainability considerations in decision making under the Act.

The bulk of the Act is concerned with the assessment and approval

(or rejection) of proposed major projects. Accordingly, this chapter

focuses on decision making on the major projects subject to assessment

under the Act, including the key decisions required throughout the pro-

ject assessment process and in the follow-up stage of project implemen-

tation. However, application of the Act also involves key decisions on

many other matters. Among these are decisions about what processes

are to be used in regional and strategic assessments and what to do with

the products of these assessments; decisions on what projects must be

assessed and when regional and strategic assessments will be initiated;

decisions on the processes for and contents of regulatory and policy

guidance; and decisions on the exercise of procedural and substantive

discretion, the negotiation of collaborative agreements with other juris-

dictions, and the ongoing establishment of administrative practices.5

Although few of these decisions are explicitly required to take the

sustainability-based approach that the Act establishes for decision

making on designated projects, most, if not all, of these decisions are

expected in one way or another to serve sustainability-based project

assessment. To be useful and credible for that purpose, decision mak-

ing under the Act generally needs to respect the contribution-to-sus-

tainability objective.

The following sections of this chapter consider the following:

• how and where sustainability-based decision making is needed

in assessments

• what the Act and initial regulatory and policy guidance require

for sustainability-based decision making on projects and other

undertakings subject to assessment and on other key matters of

implementation (e.g., decisions on application, development of

regulations, policy making, and the use of discretion)

• the overall strengths and limitations of the law and initial

guidance

• openings and means for improvement

5 The Act’s overall approaches to all of these topics are covered in other chapters of this

book.