The Process of Reform: Real Change?

• Author: Hugh Benevides
• Pages: 73-96

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The Process of Reform: Real Change?

Hugh Benevides

A. INTRODUCTION

The stage for the process of reform of Canada’s federal environmental

assessment (EA) regime was partly set when major energy projects

(including the Energy East, Northern Gateway, and Trans Mountain

Expansion pipeline proposals and the Site C hydroelectric power pro-

ject) attracted signicant public controversy. During the 2015 federal

election campaign, several political parties made legislative proposals

for improving relevant processes that might prevent such controversies

in the future. When the Liberal Party won a majority of seats in that

election, it followed through on its campaign commitment to replace

the EA legislation put in place in 2012, when the Conservative Party

controlled a majority of seats in the House of Commons.1 This chapter

traces the nearly four-year process that followed, leading to the enact-

ment of the Impact Assessment Act (IAA) in 2019.2

Although my main purpose is to describe the processes leading to

the enactment of the IAA, in this chapter I also trace the fate of three

1 See, for example, Mark Wineld, “A New Era of Environmental Governance in Canada:

Better Decisions Regarding Infrastructure and Resource Development Projects” (May

2016) at 7–8, online (pdf): Metcalf Foundation https://metcaloundation.com/site/

uploads/2016/05/Metcalf_Green-Prosperity-Papers_Era-of-Governance_nal_web.pdf.

2 SC 2019, c 28, s 1.

      74

substantive areas of possible reform3 through the legislative process.

If these reforms had been adopted, they might have changed federal

assessment law in a manner suggesting “real change,” the theme of

the Liberals’ 2015 election campaign platform.4 The chapter describes

the major stages of the process that were transparent to the public: an

Expert Panel process, a government discussion paper responding to the

Panel’s report, the tabling of a dra bill, and its consideration in both

houses of Parliament.

The rst possible reform considered here is the establishment

of binding decision criteria that would give meaning to the notion

of “sustainability.” In previous federal EA laws, decisions turned on a

ministerial or Cabinet judgment as to whether a project would result

in signicant adverse eects that were said to be justiable by mitiga-

tive measures. In a reformed process, decisions would turn on “explicit

grounds for decision making”5 that would point development in the

direction of sustainability in the sense of creating lasting well-being.

The second possible reform is the assignment of impact assessment

(IA) decision making to an expert, quasi-judicial tribunal rather than

the conventional Canadian approach, whereby elected ocials (Cabinet

ministers) make nal assessment decisions. Although advocates and

scholars did not uniformly recommend decision making by a tribu-

nal, such a change would have marked a signicant reform and would

have responded to some critiques of decision making by elected o-

cials. Some did suggest that approval decision making by an impartial

3 Focusing on just three areas of reform means neglecting other important consider-

ations, such as linkages to Indigenous knowledge, rights, cooperation, and decision

making (see Chapter 6) and science in IA (see Chapter 21 and Alana Westwood & Aerin

Jacob, “Evaluating the Role of Science in the Proposed Impact Assessment Act” (May

2018), online (pdf): Research Gate www.researchgate.net/publication/324992499_

Evaluating_the_role_of_science_in_the_proposed_Impact_Assessment_Act#

fullTextFileContent.

4 Liberal Party of Canada, “Real Change: A New Plan for Canada’s Environment and

Economy” (2015), online (pdf): Scribd www.scribd.com/document/335878417/A-New-

Plan-for-Canadas-Environment-and-Economy [“Real Change”]. This document was

originally posted at www.liberal.ca/wp-content/uploads/2015/08/A-new-plan-for-Canadas-

environment-and-economy.pdf, but is no longer available at that address.

5 Robert B Gibson, Meinhard Doelle & A John Sinclair, “Fullling the Promise: Basic

Components of Next Generation Environmental Assessment” (2016) 29 Journal of

Environmental Law & Practice 251 at 257. Chapter 14 of this book explores the role and

importance of clear criteria (beyond merely identifying sustainability as a factor) in

decision making.