Environmental lawyers look for certainty in assessment bill

The federal government’s Bill C-69, the Impact Assessment Act, proposes to reform the federal environmental assessment regime and place more emphasis on early engagement with affected communities as a way of avoiding problems as the assessment process unfolds.

However, lawyers representing both environmental and proponent sides say the bill contains uncertainties that the government should address, particularly with ministerial discretion around scope and timelines.

“The legislation is important because it’s the primary vehicle that the government of Canada has to assess natural resource projects that it has to make decisions about, whether they’re pipelines, marine terminals, or mining operations that have impacts on fisheries — you name it,” says Stephen Hazell, director of conservation and general counsel with Nature Canada, a conservation charity. “It’s a critical part of federal decision-making related to development in this country.”

Michael Fortier, partner with Torys LLP in Toronto, says that the bill represents a fresh start for the federal environmental assessment process rather than just amending the existing act.

“This has the potential to fundamentally change how project development happens at the federal level, certainly for large projects that are central to Canada’s economy — especially the resource economy,” says Fortier.

The federal bill proposes an early engagement process where a proponent would engage with communities and other stakeholders affected by a project, under the supervision of a newly created federal Impact Assessment Agency. The intent is to properly scope projects, to determine what kind assessment is required, and what the issues are, at which point the agency would issue a report that would guide the assessment process going forward. The intent is to save time and money, as opposed to having proponents produce boxes of documents and consultant reports that will go unread, says Hazell.

Some proponent-side lawyers are concerned that the early engagement will lengthen the process and make things worse for their clients, an argument Hazell rejects.

The bill also proposes that one of tests that will help determine whether projects get approval is whether they are in the public interest, as opposed to whether they simply would have significant adverse effects.

Fortier says that he likes that the public interest test offers more clarity to decision making for his clients, as it makes it clear that a decision will be a political one that weighs a number of factors. The current system of looking at adverse effects can create misunderstandings if projects do not get approval, he says.

Michael Styczen, partner at DLA Piper (Canada) LLP in Calgary, says the bill proposes “a very sensible process.”

“It’s all laid out in a very methodical way,” says Styczen. “There are time limits, depending on the size of the project, and all of that makes sense. But [the bill is] nothing terribly innovative.”

Laura Zizzo, a lawyer who is also founder and CEO of Zizzo Strategy Inc. in Toronto, says that she is always glad when climate change is specifically called out in legislation, and the integration of a project’s contribution to climate change as part of whether it can pass its environmental assessment.

“The assessment of what is in the public interest includes climate considerations,” says Zizzo.

She does have concerns about how that plays out in the legislation, however.

“It is light on specifics of what that means and how you actually can make sure that a project is in the public interest in light of our climate commitments,” says Zizzo.

Zizzo says that because there is a lack of specifics around international climate commitments, it leaves ambiguity in how it will be applied, which makes it difficult to advise clients.

“You could read this as saying that all new projects cannot contribute to us not being able to meet our commitments under our Paris Agreement,” Zizzo says.

“It doesn’t say that specifically, but it certainly can be read as saying that. If that actually is true, how do we make sure that no new projects that would need to be approved under this legislation would push us over our carbon budget?”

To that end, Zizzo is waiting for what regulations will spell out around those commitments.

The uncertainty around which projects will be captured by the new process is also of concern to proponent-side lawyers, particularly how far it will reach into projects that traditionally wouldn’t have required a federal approval.

Styczen says that if the coming regulations do reach into new areas, it will greatly increase the scope of federal environmental assessments. That would be of great concern to his clients, but they don’t have any answers to give them at this point.

Patrick Duffy, partner with Stikeman Elliott LLP in Toronto, says that he is concerned that the bill changes the standards of assessment from “significant adverse impact” to the more amorphous public interest test.

“That naturally will cause some concern from proponents that this is a process that could potentially have a greater range of impacts that might be considered, and it seems to make it more political,” says Duffy.

Likewise, Duffy says the lack of definition for sustainability and how to test for it will make it more difficult for proponents.

“The issue will be how it’s implemented and managed,” says Fortier. “If not managed properly, [the process] could result in project reviews going on for literally decades and not coming to an answer. My own view is that’s not helpful to anybody.”

To that end, Fortier is most concerned about the federal cabinet’s ability to extend the timelines of assessments that are laid out in the legislation, which will result in people seeing the process as not being effective as they won’t be getting decisions in a timely way.

Styczen adds that the concern for his clients around the kinds of gender-based analysis that the new legislation would also require from proponents is that they don’t know what the scope of that analysis is going to be, or how it will be carried out.