Compromise is the lifeblood of working democracies. That doesn’t mean everyone has to like it. Bill C-69 — the Trudeau government’s attempt to reform Canada’s system of environmental reviews for major resource projects — is before the Senate, and making no one particularly happy.
C-69 (it’s actually a package of bills) would take the job of ordering project impact assessments away from the National Energy Board and hand it to a new body, the Impact Assessment Agency of Canada (IAAC). The IAAC is designed to not only conduct environmental assessments of large projects (such as interprovincial pipelines), but to broaden the scope of the assessments to cover the projects’ health, social and economic impacts, their effects on Indigenous peoples and on the federal government’s climate change commitments. The goal, according to the government, is to streamline project assessments through a “one project, one assessment” approach.
The bill also shifts the bedrock under the assessment process by changing the standard by which a project’s projected effects are measured. While the current Canadian Environmental Assessment Act (2012) evaluated projects according to whether they would lead to “significant adverse effects,” the new bill would allow the environment minister to judge them on whether they would be, on balance, in the “public interest.”
Compromise is the lifeblood of working democracies. That doesn’t mean everyone has to like it.
The promise of C-69 was that it would put the science first. Does it? Some of its critics in the extractive sectors contend that the legislation will stifle investment and create a permanent bottleneck in federal project approvals by subjecting them to a laundry list of conditions that don’t necessarily address environmental degradation.
Others argue that, by introducing “public interest” to the mix, the federal government is giving itself a back door to impose political considerations on impact assessments.
“Overall, I think the new law will act to require project proponents to undertake rigorous scientific work on the baseline conditions of their projects. So the science is being respected,” says Alexandria Pike, chair of the Canadian Bar Association’s Environmental, Energy and Resources Law Committee.
“The question is whether the test the government is using here is going to politicize a decision that ought to be based on science. In the legislation, ‘public interest’ is never really defined. The bill lists factors to be considered in the test. It’s fine to list those factors, but which ones have priority? How do you weigh them? They’re not ranked, and that’s a concern.”
Martin Olszynski, an associate professor in environmental law at the University of Calgary, was a vocal critic of the current version of the environmental assessment law. He’s not wild about the new one, either. “None of the previous laws even mentioned science,” he says, “but the role of science in this one isn’t very substantive.”
Speaking before the Commons Standing Committee on Environment and Sustainable Development back in March, Olszynski called for more “rigorous” science in impact assessments — pointing out that, notwithstanding the government’s PR messaging, the draft bill scarcely even mentioned science. “The terms ‘science’ or ‘scientific’ are mentioned only five times in the proposed IAA,” he told the committee, “and in no case are they given any substantive work to do.”
Olszynski called on MPs to amend the bill to impose a duty of “scientific integrity” on everyone involved in the impact assessment process, to ensure science remains at the centre of the process. Win some, lose some: the committee passed a motion to introduce the “scientific integrity” standard to the process — but it only covers federal officials. “The fox is watching the hen house,” ecologist Aerin Jacob told the Globe and Mail.
Pike, meanwhile, points out that the federal government missed an opportunity to elevate the role of science in C-69 when it didn’t follow through on a 2017 expert panel recommendation to give the IAAC the power to engage independent experts and prepare impact assessments.
Olszynski also suggests the impact assessment system sets up “an apparent conflict when a consultant is hired to do an impact assessment.
“On the one hand, the consultant has a direct financial incentive to not over-bill the client by spending too much time on it. These companies are competing for these projects, after all. And if they submit impact statements that are critical of the project being proposed, they’re unlikely to be hired to draft another one.” He suggests a system of blind tendering to put some distance between consultants and project proponents.
Olszynski saves much of his scorn for the bill’s apparent acceptance of “adaptive management” — the process by which project proponents improve their environmental management practices by studying them in action and learning about their outcomes.
Project proponents, he says, too often promise adaptive management without following through. “They treat adaptive management like magical pixie dust that can be sprinkled over all manner of environmental problems to guarantee a positive outcome — apparently without any effort on their part." He called (unsuccessfully) for a rewrite of the bill that would compel proponents to either deploy mitigation measures that are “demonstrably effective” or to commit to adaptive management that actually studies outcomes and assesses the likely fallout if mitigation measures fail.
Pike, on the other hand, cautions against throwing the good out with the bad and points to scientific support for adaptive management. “It’s a cynical view, frankly. There are very meaningful efforts being made in adaptive management.
“To think that any test is going to provide such a clear-cut, go-no-go answer — that one project is completely unacceptable, while another is completely acceptable — strikes me as naïve. Adaptive management is a critical piece of the puzzle.”