Transparency and Accountability in Decision Making: Does the Impact Assessment Act Support Credible Decision Making?

• Author: Jason Unger
• Pages: 412-442

412

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Transparency and Accountability in Decision

Making: Does the Impact Assessment Act

Support Credible DecisionMaking?

Jason Unger

A. INTRODUCTION

Decision making in impact assessment (IA) processes is governed by

enabling law and regulation, informed by evidence gathered during

the assessment, and inuenced by a host of environmental, social, eco-

nomic, and political pressures. Part of the driving motivation for the

passage of the federal Impact Assessment Act (IAA)1 was to build trust

with the public by making “environmental assessments credible again”

by engaging a “new, fair process” that would ensure “that decisions are

based on science, facts, and evidence, and serve the public’s interest”

and by providing for meaningful public participation.2

Does the IAA succeed in creating a credible IA regime? Credibility

in IA must attempt to bridge the knowledge gained in the assessment

process and the remaining uncertainties in that knowledge with the

various decisions that are to be made throughout the IA process. A cred-

ible process should result in what are perceived as credible decisions,

characterized as impartial, independent, and informed by the evidence.

Ideally, the statutory framing of the process will legitimize decisions

1 SC 2019, c 28, s 1.

2 Liberal Party of Canada, “Real Change: A New Plan for a Strong Middle Class” (2015) at

41–42, online (pdf): www.liberal.ca/wp-content/uploads/2015/10/New-plan-for-a-strong-

middle-class.pdf. The document further commits to “[ensuring] that decisions are

based on science, facts, and evidence, and serve the public’s interest” (at 42).

Transparency and Accountability in Decision Making | 413

in the view of most if not all stakeholders: proponents; the public;

Indigenous groups; and provincial, territorial, and federal authorities.

This chapter considers the central decision points in the IAA to

determine the extent to which the Act codies mechanisms to pro-

vide for transparency and accountability in decisions. The chapter rst

provides a brief review of the challenges of arriving at credible deci-

sions that are accountable to both the enabling statute and the evidence.

Second, the chapter reviews how the IAA provides for access to infor-

mation and transparency in decisions, sets out prescriptive criteria to

guide decisions, and requires decision makers to provide reasons for

decisions. Finally, the chapter discusses the ability to review IA deci-

sions, specically through judicial review.

As is discussed, all four of these aspects — access to information,

decision criteria, reasons for decisions, and the review of decisions — are

viewed as crucial to ensuring an adequate amount of transparency and

accountability in decision making.

B. DECISION MAKING IN AN ERA OF EVOLVING ASSESSMENTS

The Supreme Court of Canada recently observed that “reasoned deci-

sion-making is the lynchpin of institutional legitimacy.”3 In the context

of IA, “reasoned decision making” will be embodied by a clear linkage

between evidence of project eects across environmental, social, and

economic factors and the reasoning for specic decisions.4 As such, the

legitimacy of a decision can be undermined

3 Supreme Court of Canada quoting the amici curiaefactum in Canada (Minister of

Citizenship and Immigration) vVavilov, 2019 SCC 65 at para 74 [Vavilov].

4 See David Cash et al, “Salience, Credibility, Legitimacy and Boundaries: Linking

Research, Assessment and Decision Making” (2003), KSG Working Papers Series,

online: Digital Access to Scholarship at Harvard https://dash.harvard.edu/bitstream/

handle/1/32067415/Salience_credibility.pdf?sequence=4. The authors identied the

importance of considering knowledge in decision making in the context of “three

pillars”: salience, credibility, and legitimacy. Within these three pillars are further

complicating factors of uncertainty in information being considered as well as the

need to ensure that public participation is meaningfully considered. Underlying these

pillars as well is the need to ensure that information systems are transparent, both for

provision of eective engagement by stakeholders but also for the purpose of clearly

understanding the rationale for and justication of how decisions are being made.