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Review of amendments to Bill C-69 proposed by the Senate in its

message to the House of Commons 6 June 2019, with particular


attention to amendments related to the Impact Assessment Act

Robert B. Gibson
School of Environment, Resources and Sustainability, University of Waterloo
7 June 2019
rbgibson@uwaterloo.ca

The following review examines the main amendments that the Senate has incorporated in
its message to the House of Commons concerning Bill C-69. It adjusts an earlier version
prepared during the Senate debates.

The review focuses on amendments with greatest potential for positive or adverse effects
on the Impact Assessment Act, in Bill C-69. The evaluation is informed by attention to the
core requirements for advanced assessment law as distilled from the past decades of
experience in Canada and elsewhere.1

The notes below are organized in light of key components of effective assessment law,
following where feasible the order of clauses of the Impact Assessment Act in the Bill as
passed by the House of Commons in June 2018. Where appropriate, amendments
addressing the same core issue are reported together. Since the Senate’s message to the
House is not yet available, the review relies on Senate committee amendment texts and
numbers, which are included along with relevant sections of the Impact Assessment Act
(IAA).

A brief summary of the review findings

Of the 200 or so amendments proposed by the Senate, perhaps eight are modestly
positive. Some others would be useful if regressive or confused components were
removed. The rest are problematic. Some are especially destructive of prospects for
effective and credible assessments and decision making in the lasting public interest.

The proposed amendments that would be most regrettable are those that would

• render entirely ineffective the core decision making considerations in section 63(a) and
(e) that demand attention with the extent to which projects contribute to sustainability and

1
See Robert B. Gibson, Meinhard Doelle and A. John Sinclair, “Fulfilling the promise:
basic components of next generation environmental assessment,” Journal of
Environmental Law and Practice 27 (2016), pp.251-276.

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hinder or contribute to meeting environmental obligations and climate change
commitments;

• rely on strategic and regional assessments that don’t exist now, and under the new law
will be few, too narrow to address the salient issues and options, and undermined by a
vague process that is not designed to deliver credible and authoritative guidance;

• make most factors for assessment optional, despite calls for certainty of expectations;

• block judicial reviews, despite loading most authority in an unaccountable Agency;

• undermine early planning;

• shorten time limits and make provision of opportunities for “meaningful participation”
more arbitrary;

• give special attention to provinces at the expense of Indigenous jurisdictions, and to


emphasize already dominant short term economic interests while neglecting future
generations;

• ensure even fewer projects are subject to application of Act;

• assign more authority to the nuclear and energy regulatory bodies and generally move
assessment from a planning process to a regulatory licensing model; and

• reduce obligations for follow-up monitoring, enforcement and learning from


experience.

See below for discussion of specific proposed amendments. Part I of the review considers
the problematic amendments. Part II lists the positive ones. Two brief appendices
identify the most destructive proposed amendment and the most debatable set of
amendments.

Part I: Twelve packages of proposed amendments that would impair the credibility
and utility of the legislation

1. Purposes of the Act

(i) Concern: sacrificing the public interest agenda to favour immediate economic
interests

Proposed amendments would distort the Act’s purposes of combining attention to


environmental, health, social and economic matters, to give special weight to economic
considerations, and particularly the interests of investors. This conflicts with the
evidence of long experience that lasting economic wellbeing depends on concurrent and

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integrated respect for environmental, health and social objectives, and on looking well
ahead with an eye to the overall public interest.

Particular amendments
• ENEV 1.02: would add special emphasis on economic considerations with special
recognition of investors in the IAAct’s preamble, s.1.

• IGS-1.09b: would add special emphasis on economic considerations, especially


investors to be reiterated in the IAAct’s purposes s.6(b.1).

Appropriate response
Reject these proposed amendments.

2. Application of the Act

(i) Concern: further reduction of application


Proposed amendments would further limit application of assessment requirements
(already cut deeply by the Canadian Environmental Assessment Act 2012) in ways that
are clearly focused on serving particular sectoral interests or simply minimizing
application of the Act, with no evident basis in informed, scientific analysis of potential
for adverse effects.

Particular amendments:
• CPC-1.09 v6 re IAA s.4 (non-application): no application to in-situ bitumen projects,
expansion of existing bitumen facilities except mining aspects, no pipelines less than 40
km unless offshore or under the Canadian Energy Resources Act (CERAct), no wind or
solar projects, no natural gas refining/processing or power generation projects.

• CPC-1.13a&b re IAA s.9(1): would allow no designation of projects by the Minister on


grounds other than significant adverse effects within federal jurisdiction [removes
attention to direct or incidental effects, and public concerns] and the significant effects
must be complex and require complex mitigation or be novel and mitigation
issues/options not well known
[The amendment’s proponents appear to assume that even projects likely to have
significant effects should be exempt from assessment if there are known means of making
some of these effects less bad through mitigation.]

• ISG 1.04, 1.50, 1.61, 1.62b&c, and 1.13b: would require consideration of regional and
strategic assessment findings in decisions on designating projects.
[These and several other amendments propose increased reliance on strategic and
regional assessments as the basis for key assessment decisions (here, decisions on
whether or not to designate projects as subject to assessment requirements), without
providing requirements for appropriate regional and strategic assessment mandates,
processes or authoritative products from such assessments. See below re regional and
strategic assessments. This is particularly problematic in the context of other

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amendments (e.g. CPC-1.54 and 1.55) that suggest that regional and strategic
assessments are meant mostly to expedite project assessments (with no mention to
identifying priorities for further project assessments, key new issues to address before
they worsen, etc.). Consideration of credible regional and strategic assessments would
be useful, but reliably credible and authoritative assessments will depend on prior
establishment in law or regulation of suitably rigorous process requirements and
provisions for suitable regional and strategic assessment products (policies, plans,
governance arrangements, etc.). ]

• ISG-1.33a re IAA s.44(1): would allow Agency assessments rather than review panels
for uranium mine and mill projects.

• CC-1.19 re IAA s.20 re termination of an impact assessment: would give provinces


authority to end any federal assessment of a designated project if the project “in whole or
in part” is in the province, and the province has assessment authority for the designated
project and requests termination within 30 days of the federal notice of commencement.
[Consideration of provincial concerns and capacities would be reasonable. Giving a
province the power to terminate federal assessments, including assessments of projects
only partly in the province, would deny federal jurisdiction and responsibility.]

Appropriate response
Reject these proposed amendments. ISG 1.04, 1.50, 1.61, 1.62b&c, and 1.13b are not
necessarily harmful, but they are also not necessary since consideration of regional and
strategic assessments does not depend on explicit legislative direction.

3. Scope of assessments

(i) Concern: narrowing of assessment scope


Proposed amendments would reduce the scope of assessments in various ways by
eliminating key considerations or making them optional even when they are retained as
mandatory considerations in decision making. The result would undermine consistency
and predictability, and prevent use of assessments as a tool for better project planning and
decision making in the public interest. Instead assessment would decline into a
fragmented regulatory licensing exercise addressing a varying package of project-specific
issues.

Particular amendments:
• CPC-1.19d v6 re IAA s.22(1) on the factors for consideration: would
- eliminate consideration of “alternatives to” the designated project” [re IAA s.22(1)(f)]
[This would constitute a major narrowing and a major step away from assessment as a
planning tool serving the public interest.]
- replace consideration of “the extent of contribution to sustainability” with consideration
of “environmental, health, social and economic effects” and consistency with “published
policy on sustainability developed by the Agency” [re IAA s.22(1)(h)]

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[The core overall requirement for considering “the extent of contribution to
sustainability” should remain here and in IAA s.63(a). That can certainly be
accompanied by supplementary guidance in policy. But eliminating the core requirement
in favour of a policy that has not yet been prepared, much less reviewed and approved is
irresponsible.]
- add a requirement to account for “provincial enactments respecting climate change”
[s.22(1)(i)]
- consider only “consistency with any relevant” strategic or regional assessment
available before the notice of commencement [re IAA s.22(1)(p)]
- consider only “consistency” with published Agency policy on ”the intersection of sex
and gender and other identity factors”
[Several of these amendment components would rely on policy not developed in a
rigorous or credibly process and use that as grounds for limiting broader discussion in
project assessments that do have some legislated process credibility elements. Also the
term “consistency with” could allow a binary yes/no finding. In any event, determining
alignment with general policy components would fall well short of specific prediction and
evaluation of the extent of various positive and/or adverse project effects to inform
decision making. Determining “extent of contribution” entails detailed evaluation that
would necessarily centre on the specifics of the case and its context as well as application
of general principles.]

• CPC-1.21a re IAA s.22(2): would


- permit the Agency (or Minister in review panel cases) to exclude entirely consideration
of any or all the s.22(1) factors for consideration in assessments, except for Indigenous
knowledge, comments from the public or consulted jurisdictions, strategic and regional
assessments, Indigenous assessments, other jurisdictions’ regional studies and plans, and
identity factors.
[Exclusion of any considerations at the early planning stage is unjustifiable, given the
reasonable expectation of new information, issues and options emerging from assessment
work. Allowing exclusion of the factors that are mandatory considerations for decision
making in s.63 – sustainability (factor h) and environmental obligations and climate
commitments (factor i) – is especially illogical.
Note also, however, that some other proposed amendments retain the broad language
of requiring attention to the s.22(1) considerations (e.g., ISG-1.33b re joint review
panels.]
- permit the Agency (or Minister in review panel cases) to scope down any of the
remaining considerations, and determine what weight is to be given to strategic and
regional assessments, in light of the relevance of the assessment and the strength of its
supporting evidence.

• CPC-1.26b re IAA 33(1) would replace the requirement for substituted assessments to
consider the all the factors in IAA s.22(1), with a requirement that they consider only
those factors determined to be relevant to the case.
[This amendment presumably relies on proposed amendment CPC-1.19d v6 re IAA
s.22(1), which would allow most factors to be scoped out entirely.]

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• CPC 1.04v6 re IAA s.2 definition of direct or incidental effects, would exclude
consideration of upstream and downstream GHGs.

Appropriate response
Reject these proposed amendments.

(ii) Concern: inappropriate re-introduction of a “significance test”


Proposed amendments would re-introduce “significance” evaluations. Use of “extent of
significance” evaluations can be valuable, insofar as they can draw upon the considerable
existing body of experience, methodology and guidance on “significance” judgments. But
if re-introduced as proposed in some amendments, reliance on “significance” judgments
would install a simplistic test, discourage careful and nuanced assessment of the range of
adverse effects, distort overall assessment by leaving all the positive effects to be
compared against only the “significant” adverse ones, and thereby obscure trade-offs and
bias decision making.

Particular amendments
• ISG-1.09a&c re purposes s.6(1)(b&d): would narrow the purpose concerning adverse
effects to avoiding only significant adverse effects.
[The amendment does not remove the purpose to “take into account all effects – both
positive and adverse – that may be caused by the carrying out of designated projects” but
inappropriately implies that no efforts should be encouraged to mitigate or avoid all
adverse effects.]

• ISG-1.23b v2v re IAA s.28(3) and ISG-1.41a&b v2 re contents of the Agency’s report,
and ISG 1.37 v2 re IAA s.51(1)(d)(ii) re review panel reports, would require assessment
reports to identify the extent to which adverse effects are “significant.”
[That change would be reasonable, so long as it is not tied to amendments that limit
serious consideration to adverse effects that are labelled “significant.”]

• ISG-1.41b v2 re IAA s.60(1)(a), decisions on Agency assessment cases: would


reintroduce the significance test, requiring the Minister to determine if “the significant
adverse effects within federal jurisdiction – and the significant adverse direct or
incidental effects – indicated in the [Agency assessment] report” are “in the public
interest,” in light of the s.63 factors.
[If the ISG’s other “significance” amendments (e.g., ISG-1.37 and 1.39 v2) are adopted,
the reports upon which the Minister’s decisions are to be based will describe “the extent
to which” adverse effects are significant. That would be acceptable because it does not
entail specifying the imaginary line between significant and not significant. If this
amendment (ISG-1.41b v2 IAA) were adopted, the Minister would be expected to draw
that line, and exclude attention to adverse effects that did not get the “significant” rating.
The limited focus on significant adverse effects is not matched by similar treatment of
positive effects. No proposed amendments call for considering only significant positive
effects. The result would be to encourage unjustifiably loaded comparison of all positive
effects against only the significant adverse effects.

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Finally, it remains that the original wording of IAA s.60(1) is absurd insofar as it
expects that adverse effects, significant or not, may be in the public interest – what may
be in the public interest is the proposed project, despite its predicted adverse effects,
perhaps on occasion even including significant ones.]

• ISG-1.42c v2 re IAA s.63(b): would require attention to “the extent to which” adverse
effects, including adverse direct or incidental effects, are “described as significant” in the
assessment report.
[The amendment makes sensible use of the “significance” judgment, treating significance
as a spectrum rather than a point. This should be the approach taken throughout in
contrast to the amendment proposed in ISG-1.41b v2. ISG-1.41c v2 re IAAs.61 on
decisions on review panel cases, like ISG 1.42c v2, retains attention to adverse effects
without the limitation to consider only significant ones.]

• ISG-1.41d v2 re IAAs.61, decisions on review panel cases: would reintroduce the


significance test for review panel cases, requiring the Minister to determine if “the
significant adverse effects within federal jurisdiction – and the significant adverse direct
or incidental effects – indicated in the [review panel assessment] report” are “in the
public interest,” in light of the s.63 factors
[See comment above re ISG-1.41b v2.]

Appropriate response
Revise these proposed amendments to ensure that “significance” evaluations in all cases
retain consideration of “the extent to which adverse effects are significant,” to require
similar evaluation of positive effects and to remove the notion that adverse effects (rather
than projects with adverse effects) may be in the public interest.

4. Early planning and the notice of commencement process

(i) Concern: compromising the potential of the early planning phase


The main thrust of the proposed amendments is to use the early planning phase merely as
a means to reduce assessment obligations for proponents, including by making pre-
maturely firm decisions about matters not yet examined in assessment studies.

Particular amendments
• CPC-1.16c re IAA s.17(1): would introduce formal opportunity for the proponent to
request of three ministers written notice if the project is inconsistent with federal policy.
[This amendment appears to rest on the assumption that the usual result would be
unwillingness of the ministers to declare that the project is inconsistent with federal
policy, which proponents could interpret as a form of overall approval in principle. That
would be a version of the Canadian Energy Pipelines Association proposal for two stage
assessments – first an approval in principle that the project is consistent with existing
policy (with no assessment of the overall public interest), then an essentially regulatory
licensing stage of working out needs for conditions.

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The important distinction is between general consistency with policy, and case specific
determination of whether or not the project in comparison with reasonable alternatives is
in the public interest, including attention and the extent to which a project contributes to
sustainability, respects Indigenous rights, and hinders or contributes to meeting
environmental obligations and climate commitments.]

• CPC-1.17a re IAA s.18(1): would require the notice of commencement to include the
apparently final determination of the scope of the project as well as the scope of each
factor to be considered.
[Making such a determination before assessment studies are done would defeat the
purpose of doing the studies. Assessment is a planning and learning process. Assessment
studies are meant to influence project selection and design. Learning about potential
effects and other consequences of proceeding with various options is meant to lead to
better projects with more benefits and fewer adverse effects.
This amendment (and many others e.g., CPC-1.19d v6 re eliminating “alternatives to”
in IAA s.22(1)) reflects a conception of assessment not as a planning process but as a
licencing exercise, where the project is already planned and ready for approval and the
assessment process is merely to demonstrate that a licence is deserved.]

• ENEV-1.17 re IAA s.18(1.2): would with different wording similarly require the
tailored impact assessment guidelines accompanying the notice of commencement to
include the Agency’s determination of “the scope of the factors referred to in paragraphs
22(1)(a) to (f), (h) to (l), (s) and (t) that are to be taken into account [in identifying needed
information and studies], including the extent of their relevance to the impact
assessment”. It does not, however include the requirement for determination of the scope
of the project” that is in CPC-1.17a.
[The two proposed amendments, CPC-1.17a and ENEV-1.17, appear to cover the same
ground in competing ways in adjacent clauses of the Act. The ENEV-1.17 amendment is
less bad, but should be adjusted to recognize that s.22(1) factors may not be “scoped
out”, that the scope of factors may be adjusted (scope broadened or narrowed, or
emphases revised) in light of study findings and other new information arising through
the assessment]

• ISG-1.17a v3 re IAA s.17(1): would eliminate Ministerial authority to end assessment


and potential approval of a designated project that is clearly not in the public interest
(including if it is clearly inconsistent with federal policy).
[In my view, neither approval in principle nor rejection in principle should be admitted.
Rejection in principle is likely to be rare if the assessment expectations are clear and
consistent. Proponents of clearly bad projects should be able to recognize early that they
will not win approval. Moreover, in the usual more controversial cases, early rejections
or approvals in principle are premature when the assessment study needs are just being
defined. The specifics of the case and context usually matter, and cannot be known well
enough at this stage.]

• ISG-1.17 v2 re IAA s.18: would limit possible extensions to the notice of


commencement deadline to those made because activities required by regulation have not

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been completed or in response to requests from proponents or from provincial bodies.
[The proposed amendment does not include requests from Indigenous jurisdictions, even
if they are cooperating authorities. That is unacceptable.]

Appropriate response
Reject these proposed amendments. ENEV-1.17 could be acceptable if adjusted as
suggested above. See also the comments above concerning ISG-1.17a v3.

5. Impact assessment process

(i) Concerns: arbitrary determination of what constitutes proper opportunity for


“meaningful public participation” and inappropriate restriction of those not “directly
affected”

Particular amendments
• CPC-1.22a&b re IAA s.25 and ENEV-1.36 re IAA s.51(1): would empower the
Agency or the review panel to determine what processes and opportunities for
meaningful engagement and participation are appropriate in its view.
[Agency or review panel authority for case-specific determinations seems appropriate.
Both the Agency and review panels have long-established practices, prior to the self-
defeating efforts to restrict participation under the Canadian Environmental Assessment
Act, 2012 (CEAA 2012). However, this case-specific authority should be combined with
basic guidance in regulation and policy to ensure some consistency of practice.
A strong foundation for regulatory direction on the pre-requisites for meaningful
public participation is available in the existing repository of broadly accepted guidance,
including from the Multi-Interest Advisory Committee and the earlier Regulatory
Advisory Committee under the original federal assessment legislation. Without such a
regulatory base, the proposed amendments’ emphasis on the Agency’s or review panel’s
judgement about what it “considers appropriate in the circumstance” (from ENEV-1.36)
seems intended to avoid any substantive test of basic requirements for potentially
meaningful participation.]

• ISG-1.56 re IAA s.99: would follow the provisions for project assessments in the
proposed amendments above by empowering the Agency or the committee in a regional
or strategic assessment to determine what processes and opportunities for meaningful
engagement and participation are appropriate in its view.
[Again, without regulatory guidance, this approach would suffer from that absence of
any substantive test of based on the core requirements for potentially meaningful
participation.]

• CPC-1.37c re IAA s.51(4): would authorize a review panel to determine the extent of
participation by a person using the old “directly affected” and “relevant information or
expertise” criteria.
[This approach did not serve well to reduce delays in application under CEAA 2012, and
should not be necessary. Surrounding discussion suggests that the aim of the proposed

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amendment is largely to exclude participation by regional and national public interest
organizations that are critical of proposed projects but often have considerable relevant
expertise. The “directly affected” emphasis also reflects an assumption that only local
effects are important. On environmental matters that is an assumption that was already
obsolete 40 years ago with the recognition of transboundary air pollution. For major
projects in the broader, sustainability-based agenda of the IAA, the relevant public
interests will rarely be limited to local and “directly affected.”]

Appropriate response
The proposed amendments re-introducing the “directly affected” test should be rejected.
The proposed amendments giving the Agency and panels responsibility for ensuring
meaningful participation opportunities need to be accompanied by a requirement to
establish and follow appropriate regulatory guidance on meaningful participation.

(ii) Concern: confused expectations for the contents of Agency and review panel
assessment reports
The IAA as passed by the House of Commons suffers from failure to be clear about what
should be included in assessment reports from the Agency and review panels. Proposed
amendments would add some useful clarification, particularly about identifying the
extent to which adverse effects are significant and including recommendations on
approval (or not) and conditions. The amendments neglect attention to evaluation of
positive effects and conditions that would enhance them, identifying trade-offs, and
justifying recommendations in light of the IAA s.63 considerations. One neglects
“adverse direct or incidental effects” and another wants the Agency to make
recommendations on conditions in panel review cases – where it was the panel, not the
Agency, that heard the evidence.

Particular amendments
• CPC-1.37b re IAA s.51(1)(d) re panel reports: would require panel reports to
recommend on whether approval is justified and what conditions re adverse effects within
federal jurisdiction should be imposed.
[The amendment would usefully require recommendations, but appears to limit the
potential scope of conditions (no mention of conditions on enhancement of positive
effects, no mention of attention to ‘adverse direct or incidental effects”). It includes no
requirement for the reports to justify recommendations in light of the IAA s.63
considerations. CPC-1.43a, however, retains attention to adverse direct or incidental
effects in determination of conditions of approval.]

• ISG-1.23b v2v re IAA s.28(3) and ISG-1.41a&b v2 re contents of the Agency’s report,
and ISG 1.37 v2 re IAA s.51(1)(d)(ii) re review panel reports, would require assessment
reports to identify the extent to which adverse effects are “significant.”
[It includes no parallel requirement to identify the extent to which positive effects are
significant. See the discussion on pages 6-7, above]

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• ISG-1.37 v2 re IAA s.51(1)(d((ii) and ISG-1.39 v2 re new IAA s.55.1: would (in
contrast to CPC-1.37b) assign the Agency responsibility for making recommendations
about conditions concerning projects assessed by a review panel.
[The review panel, which heard the evidence, should make the recommendations
concerning the needed conditions.]

Appropriate response
The proposed amendments that clarify the needed contents of Agency and panel reports
should be revised to
• require recommended conditions without constraining the scope of relevant effects or
the scope of possible conditions any more than the Act’s existing constraints,
• require the reports to provide comparative evaluation of the project and relevant
alternatives in light of the s.22 factors and the s.63 considerations, and
• require the reports to recommend steps to enhance positive effects.
ISG-1.37 v2 re IAA s.51(1)(d((ii) and ISG-1.39 v2 re new IAA s.55.1 should be rejected.

6. Process: relations with regulatory bodies

(i) Concern: re-asserting assessment roles of regulatory licencing bodies


Several proposed amendments would revert to the CEAA 2012 approach of sharing
assessment authority with sector based regulatory licensing bodies – the Canadian Energy
Regulator (CER), the Canadian Nuclear Safety Commission (CNSC) and the offshore
boards – despite the recommendations of the Expert Panel, and the fundamental
difference between regulatory licensing and assessment as a planning tool. Cooperation
and information sharing between assessment and regulatory bodies is important.
However, several amendments would strengthen the voices and authority of the energy
and nuclear regulatory agencies in assessments of projects that would require their
licences. These amendments include proposals concerning regulatory body appointees as
review panel members and chairs.

Close relations between regulators and those regulated is a commonly described


phenomenon in the scholarly literature on regulatory governance, though certainly some
jurisdictions and regulators do better than others in establishing and maintaining
impartiality. The Canadian federal record is at best uneven. We can see the results in the
sharp contrast between proponents’ support for granting more influence and authority to
the regulatory bodies and opposition from those with experience as intervenors before
these bodies.

Particular amendments
• CPC-1.19b re IAA s.21(1): would require the Agency in non-panel cases to sign
memoranda of understanding with relevant offshore boards, apparently to establish a joint
assessment process, and the Minister in review panel cases to cooperate with relevant
offshore boards and to appoint at least two panel members recommended by the chair of
the board.

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[This amendment would strengthen the offshore boards’ role in Agency as well as review
panel assessments, apparently intending joint processes at both levels. It reflects a
general inclination of the amendments to treat assessment as essentially a regulatory
process, not a planning process.]

• GM-1.34b re IAA s.44: would have CNSC-related review panel terms of reference
established in cooperation with the CNSC President and CPC-1.34c re s.44, would have
CNSC appointees be the majority on each CNSC-related panels and chair the panel.

• GM-1.35, ISG-1.35d and ENEV-1.35) propose similar amendments related to CER-


related panel reviews.

• ISG-1.41c v2 re IAAs.61 on decisions on review panel cases: would re-establish


several responsible authorities to reflect greater roles of the regulatory bodies CER and
CNSC, and accordingly their ministers.

Appropriate response
Reject these proposed amendments. The needed technical expertise and collaboration on
regulatory matters can be gained through inter-agency cooperation, without degrading the
integrity of the assessment process.

7. Decisions on proposed projects

(i) Concerns: undermining the key s.63 decision considerations


A set of proposed amendments concerning IAA s.63 would essentially eliminate the
public interest value in the current requirements to consider implications for
sustainability and environmental obligations and climate commitments. They would
replace detailed attention to the extent of positive contributions or negative hindering
with merely checking “consistency with” published policies or strategic assessments that
are not yet available, will not be the product of credible public processes, and where
available are likely at least initially to be too vague and general to establish the
foundations for rigorous testing.

In the absence of completed strategic and regional assessments, the apparent result would
be no requirement at all to consider environmental obligations or climate commitments,
in project decision making. Moreover, nothing in the proposed amendments would ensure
that a completed strategic assessment on sustainability would cover the key requirements
for progress towards sustainability or that completed regional assessments would provide
comprehensive coverage of Canada’s environmental obligations, or that a completed
strategic assessment on climate would provide comprehensive coverage of Canada’s
climate commitments.

Particular amendments
• CPC-1.42b re IAA s.63(a): would eliminate the requirement to consider “the extent to
which the designated project contributes to sustainability.” The amendment would

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substitute consideration of the project’s “environmental, health, social and economic
effects” (with no mention of sustainability’s core requirement of attention to cross-
generational implications) and “any relevant policy on sustainability” developed by the
Agency under IAA.
[Elimination of the “extent of contribution to” language would undermine application of
a coherent sustainability test that would compare the implications of positive and adverse
effects, identify trade-offs and integrate the suite of s.63 considerations. The vague
reference to Agency policy would encourage lobbying over policy development. It would
also fit with other recommended amendments to reduce considerations to checking
“consistency with” policy rather than evaluating the extent of hindering or contributing.
Because the contribution to sustainability concept is at the core of the assessment
reform and the IAAct as passed by the House of Commons, this amendment by itself
would remove the organizing coherence of the approach taken.
As noted above, core requirements can certainly be accompanied by supplementary
guidance in policy. But eliminating the core requirement in favour of a policy that has
not yet been prepared, much less reviewed and approved is irresponsible.]

• CPC-1.42c re IAA s.63(a): perhaps meant as an alternative to CPC-1.42b, would add


consideration of the project’s “potential economic and social effects” to consideration of
contribution to sustainability, forgetting that sustainability covers these already.

• ISG-1.42d re IAA s63(e): would limit consideration of the extent to which project
effects would hinder or contribute to meeting environmental obligations and climate
commitments to “as described in” any relevant strategic assessment completed before the
project’s notice of commencement.
[The implication is that where no relevant strategic assessment has been completed, no
consideration of environmental obligations or climate commitments would be required.]

• CPC-1.42d re IAA s.63(e): would reduce the environmental obligations and climate
commitments consideration to consistency with policy arising from a regional or strategic
assessment.
[The wording of s.63(e) as passed by the House – considering “the extent to which” the
project would “hinder or contribute to” to meeting our obligations and commitments –
provides a reasonably accurate version of the actual challenges, and would encourage
efforts to face them explicitly.
This amendment would replace the original with consideration of “consistency with”
(much weaker than evaluation of “hinder or contribute to”)
• strategic assessments on environmental obligations, which do not currently exist and
plans for which have not been announced,
• strategic assessment of climate change, for which the government is substituting a
quick internal review now underway with restricted scope and no directions to interpret
the existing climate commitments, and
• federal legislation (that is not in place or planned).
Absent these (the current situation), no consideration of environmental obligations or
climate commitments would be required.]

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Appropriate response
Reject these proposed amendments. They would by themselves eliminate most of the
useful and hopeful aspects of the IAAct as passed by the House of Commons.

8. Follow-up

(i) Concern: even less attention to follow-up monitoring, enforcement and learning from
experience

Particular amendments
• CPC-1.10 re purposes w.6(1)(n): would delete improving assessment through follow-
up.

• CPC-1.43b re IAA s.64(4): would make requirements for mitigation measures and a
follow-up program optional as opposed to mandatory contents of conditions of approval.

Appropriate response
Reject these proposed amendments.

9. Regional and strategic assessments

(i) Concern: reliance on regional and strategic assessments that may be unavailable,
weak, not credible and/or not suitable for guidance purposes
Generally, the relevant amendments would introduce increased reliance on strategic and
regional assessments as the basis for key assessment decisions (e.g., designation,
identification of important effects, attention to environmental obligations and climate
change commitments). However, no strategic or regional assessment is now in place. Few
are anticipated and none may be sufficiently comprehensive, mandated, open or rigorous
to deliver credible and authoritative guidance for project assessments.

The only IAA-related strategic assessment currently in the works is an internal-to-


government “strategic assessment of climate change” with highly constrained terms of
reference and no potentially meaningful public participation. There are no evident
grounds for expecting any completed regional assessments for use in projects
assessments for some years and no evident commitment to completing more than a
handful in the foreseeable future. Moreover, several proposed amendments would permit
consideration of regional and strategic assessment results only where these have been
established in policy prior to the notice of commencement of the project concerned.

In the IAA as passed by the House of Commons, sections 92-103 concerning regional
and strategic assessment are at best vague about the processes and products involved. The
assessments are to be led by the Agency or a committee of one or more persons. They are
to have terms of reference and opportunities for meaningful public participation, and are
to take scientific information and Indigenous knowledge into account. Regional

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assessments are to consider cumulative effects and may be done cooperatively with
another jurisdiction (only provinces, if the amendments are accepted). The products are
reports, presumably about cumulative effects in the case of regional assessments, or about
issues or federal policies, plans or programs related to project assessments in the case of
strategic assessments. All else is undefined in the Act, and would remain undefined if the
proposed amendments were accepted.

Among the most serious deficiencies is the absence of any provisions, much less
requirements, for regional and strategic assessment mandates that ensure analyses of
options for addressing identified regional or strategic issues and objectives, and enable
delivery of regional and strategic products (policies, plans, project level planning and
evaluation considerations and criteria, etc.), or even means by which regional and
strategic assessment reports might become policy documents that would provide usefully
authoritative guidance for project assessments, as is assumed by many of the
amendments.

Particular amendments
• ISG 1.04, 1.50, 1.61, 1.62b&c, and 1.13b: would require consideration of regional and
strategic assessment findings in decisions on designating projects.
[These amendments include no indication of whether the regional and strategic
assessments are to help identify projects that need assessment, or to provide grounds for
not designating, or both. The amendments rely on regional and strategic assessments
providing relevant guidance on these matters. See next amendment. ]

• CPC-1.54 re IAA s.94 and CPC-1.55 re IAA s.95: would emphasize narrow purposes
for regional assessments – providing baseline environmental information and information
to reduce the scope of project assessment studies and “expedite assessments.”
[The amendment does not mention assessing the implications of the existing conditions or
determining how best to manage worrisome cumulative effects, or identifying
consequences for project designation or assessment.]

• ISG-1.42d re IAA s.63(e): would limit consideration of the extent to which project
effects would hinder or contribute to meeting environmental obligations and climate
commitments to “as described in” any relevant strategic assessment completed before the
project’s notice of commencement.
[The implication is that where no relevant strategic assessment has been completed,
consideration of environmental obligations or climate commitments would not be
required.]

• ISG-1.55 v2 re IAA s.95: would empower the Minister to deem a completed strategic
assessment to be a strategic assessment conducted under IAA s.95(1).
[The immediate purpose of this amendment could be to allow the current “strategic
assessment on climate change commitments” to be recognized as an assessment under
the Act, even though it seems not to meet even the minimal process requirements for
strategic assessments under the Act or to be designed to provide the basis for policy

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guidance on how to assess the extent to which a project’s effects may hinder or
contribute to meeting Canada’s climate change commitments.]

• CPC-1.19d v6 re IAA s.22(1) and ISG-1.21a&b v2 re IAA s.22(1)(p): would restrict


consideration of strategic and regional assessments to ones that are completed with
results available in policy before notice of commencement of project assessment.

• CPC-1.24 re IAA s.28.1: would prohibit project assessment delays to await completion
of a regional or strategic assessment.

Appropriate response
Reject these proposed amendments. Until regional and strategic assessment processes and
their intended products are better specified in the legislation, or suitable elaborated in
regulation, any serious reliance on them is at best premature. Reliance on them, as
proposed, to minimize or negate crucial considerations in the public interest would be
inexcusable.

(ii) Concern: elimination of attention to sustainability and to environmental obligations


and climate commitments, except as described in a relevant regional or strategic
assessment

The most serious damage from the undue reliance on strategic and regional assessments
would be near or complete elimination of serious requirements to consider sustainability
effects or effects on environmental obligations and climate commitments in project
assessments and decision making.

The current core s.63(a) sustainability requirement is for decision makers to consider the
extent to which a project would hinder or contribute to sustainability. CPC-1.42b re IAA
s.63(a) would eliminate that requirement and instead require attention to any “relevant
policy on sustainability” developed under the Act. Such a policy does not currently exist.
Given the time available between amendment, passage and proclamation of the
legislation, any policy is likely to be primitive at best, and in any event would serve
usefully only as guidance for consideration of the analysis of hindering or contributing,
which would be eliminated if the proposed amendment were adopted.

The current core s.63(e) requirement is for decision makers to consider the extent to
which a project would hinder or contribute to meeting Canada’s environmental
obligations and climate commitments. Amendments seeking to replace that requirement
with reliance on strategic and regional assessments are seeking to ensure that
environmental obligations and climate commitments will not be considered seriously and
perhaps not at all because of the absence of completed regional and strategic assessments,
and the continuing deficiencies of the Act’s provisions for regional and strategic
assessments, as noted above.

Particular amendments

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• CPC-1.42b re IAA s.63(a): would eliminate the requirement to consider “the extent to
which the designated project contributes to sustainability.” The amendment would
substitute consideration of the project’s “environmental, health, social and economic
effects” (with no mention of sustainability or its core requirement of attention to cross-
generational implications) and “any relevant policy on sustainability” developed by the
Agency under IAA.
[Elimination of the “extent of contribution to” language would undermine application of
a coherent sustainability test that would compare the implications of positive and adverse
effects, identify trade-offs and integrate the suite of s.63 considerations. The vague
reference to Agency policy would encourage lobbying over policy development. It would
also fit with other recommended amendments to reduce considerations to checking
“consistency with” policy rather than evaluating the extent of hindering or contributing.
Because the contribution to sustainability concept is at the core of the assessment
reform and the IAAct as passed by the House of Commons, this amendment by itself
would remove the organizing coherence of the approach taken.]

• ISG-1.42d re IAA s.63(e): would limit consideration of the extent to which project
effects would hinder or contribute to meeting environmental obligations and climate
commitments to “as described in” any relevant strategic assessment completed before the
project’s notice of commencement.
[The implication is that where no relevant strategic assessment has been completed,
consideration of environmental obligations or climate commitments would not be
required.
Note: While the wording seems ambiguous, “as described in” seems to refer to the
environmental obligations and climate commitments described in a strategic assessment;
however, such strategic assessments might initially deliver simple lists of relevant
obligations and commitments.]

• CPC-1.42d re IAA s.63(e): would reduce the environmental obligations and climate
commitments consideration to consistency with policy arising from a regional or strategic
assessment.
[The wording of s.63(e) as passed by the House – considering “the extent to which” the
project would “hinder or contribute to” to meeting our obligations and commitments –
provides suitable response to the actual challenges raised by environmental obligations
and climate commitments, and would encourage efforts to face it explicitly. This
amendment would replace the original with consideration of “consistency with” (much
weaker than evaluation of hinder or contribute to) strategic assessments on
environmental obligations (which do not currently exist and plans for which have not
been announced), strategic assessment of climate change (for which the government is
substituting a quick internal review now underway with restricted scope and no
directions to interpret the existing climate commitments), and federal legislation (that is
not in place or planned). Absent these (the current situation), no consideration of
environmental obligations or climate commitments would be required.]

Appropriate response

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Reject these proposed amendments. Regulatory and policy guidance on the core
considerations can be provided with the Act unchanged, and without compromising the
scope and value of the core considerations.

10. Attention to other jurisdictions’ interests

(i) Concern: special recognition of provincial and municipal interests where territorial
and Indigenous authorities ought also to be included

Particular amendments
• ISG-1.17 v2 re IAA s.18: would limit possible extensions to the notice of
commencement deadline to those made because activities required by regulation have not
been completed or in response to requests from proponents or from provincial bodies.
[The proposed amendment does not include requests from Indigenous jurisdictions, even
if they are cooperating authorities. That is unacceptable.]

• CPC-1.19d v6 re IAA s.22(1) on the factors for consideration: would add a requirement
to account for “provincial enactments respecting climate change” [s.22(1)(i)].

• CC-1.21 re IAA s.22(1): additional factors would require consideration of provincial


assessment decisions, and project consistency with provincial laws and regulations.

• CC-1.10 re IAA 6(1)(h.1): would promote to taking information from municipalities


into account.

• CC-1.42c re s.63: would add a new consideration to recognize provincial laws and
decisions by provincial authorities [It is not obvious why provinces, but not territories
and Indigenous authorities, merit this recognition.]

• ISG-1.54a&b re s.93(1&2): would require the Minister to offer other relevant


provincial jurisdictions opportunity to enter into formal cooperation agreements on
regional assessments, but would eliminate the Minister’s power to enter into cooperative
agreements with relevant Indigenous authorities.

Appropriate response
Reject these proposed amendments. Special recognition of particular authorities and not
others is unacceptable. Public interest decision making needs to attend to all relevant
issues and interests, with due regard for the significance of their concerns. The only
particular interests that merit special recognition are the interests of generations not yet
present to represent themselves. An amendment to entrench attention to the opportunities
for and wellbeing of future generations would be most welcome

11. Time limits

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(i) Concern: tighter and less flexible time limits
Tighter time limits are typically advocated to speed approvals. However, as the
TransMountain case revealed, speedier assessment approvals do not translate
automatically into quicker project initiation. When key requisites for credible and
sufficiently comprehensive processes are sacrificed for streamlining purposes, the results
can lead to critics finding other venues of expression, and can increase vulnerability to
court challenges. Tighter and less flexible time limits seem likely also to make meeting
obligations for Indigenous consultation more difficult within the assessment period. If
that leads to project assessment decisions that are not accompanied by adequate
Indigenous consultations, the result could be litigation concerning failure to satisfy the
duty to consult and accommodate.

Particular amendments
Many amendments would tighten timelines and make them less flexible (though
proposed amendments are not always consistent – e.g., ISG-1.29 vs CPC-1.29). Other
timeline amendments include CPC-1.13d, ISG-1.30b, ISG-1.33b, ISG-1.44, CPC-1.42a,
ISG-1.44.

Appropriate response
Reject these proposed amendments except for components that emphasize publication of
reasons for extensions and that limit extensions of decision making by the Minister and
Governor in Council.

12. Judicial review

(i) Concern: discouraging and blocking judicial reviews reduces accountability in an


assessment regime increasingly centralized in one administrative body

Particular amendments
• CPC-1.48 v6 re new IAA s.74.1 and 74.2: would introduce a new set of provisions to
limit judicial review of decisions in the assessment process – establishing a list of
“determinations and decisions” that are “final and conclusive”; requiring litigants to seek
leave to appeal within 30 days; and requiring hearings within 60 days of leave being
granted.

• CPC-1.37c re the extent of public participation opportunities and other proposed


amendments would further restrict potential for judicial review by establishing additional
decisions as “final and conclusive.”

Appropriate response
Reject these proposed amendments.

Part II: Proposed amendments that would improve the legislation

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The following amendments were proposed to the full Senate at 3rd reading. Not all were
passed. Consequently, the list of positive amendments is longer than it should be.

• MJM-1.13 attention to the interests of Indigenous women.

• ISG-1.81 re IAA 153(2) on the Minister’s relation to the Agency, and ISG-184 re IAA
s.160 on the Agency President’s role, aiming to protect Agency independence from
political influence and other interference.

• ISG-1.17a re IAA s.18(1): would distinguish between information or studies the


Agency “requires from the proponent” and information or studies that the Agency “finds
necessary for the conduct of the impact assessment.” While the phrasing is ambiguous,
the distinction implies that information and studies other than those the Agency “requires
of the proponent” are needed. If that is the intent, it provides a useful recognition of the
need for and the importance of requiring assessment studies of parties other than the
proponent.
[Any such amendment should refer explicitly not only to studies and information required
of the proponent but also studies and information required of relevant government bodies
and others assessment participants.]

• MJM-1.19 (first part) re IAA s.21 would correct an error in the Bill that referred to
assessments involving the offshore boards as only about environmental effects
(“environment” is to be deleted).

• MJM-1.19 re IAA s.21: would require consultation with Indigenous jurisdictions to


“consult in a manner that is inclusive, transparent and reflective of the views and
priorities of Indigenous peoples of Canada, including Indigenous women”.

• CPC-1.42e re IAA s.64(1): would require the Minister to consider the


recommendations in the impact assessment report (and therefore at least make implicit
that the report must include recommendations).

• MJM-1.55 (ENEV 16 re IAA s.97(2): would require regional and strategic assessments
to take into account knowledge of Indigenous women as well as Indigenous knowledge in
general, and include gender-based analysis of effects.

• ISG-1.85 re IAA s.167: would reduce the period before mandatory review of the Act to
five years from ten. [Given the level of controversy surrounding the current deliberations
and the deeply adverse effects of most of the proposed amendments, the earlier date
seems appropriate.]

Appropriate response
Accept these proposed amendments.

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Appendix 1: The most destructive proposed amendment

• CPC-1.42d re IAA s.63(e): would reduce the environmental obligations and climate
commitments consideration to consistency with policy arising from a regional or strategic
assessment.
[The wording of s.63(e) as passed by the House – considering “the extent to which” the
project would “hinder or contribute to” to meeting our obligations and commitments –
provides suitable response to the actual challenges raised by environmental obligations
and climate commitments, and would encourage efforts to face it explicitly. This
amendment would replace the original with consideration of “consistency with” (much
weaker than evaluation of hinder or contribute to) strategic assessments on
environmental obligations (which do not currently exist and plans for which have not
been announced), strategic assessment of climate change (for which the government is
substituting a quick internal review now underway with restricted scope and no
directions to interpret the existing climate commitments), and federal legislation (that is
not in place or planned). Absent these (the current situation), no consideration of
environmental obligations or climate commitments would be required.]

Appendix 2: Most debatable set of amendments

• The shift of Ministerial tasks to the Agency (e.g., ISG-1.18c, ENEV-1.21 re adding
factors for consideration; ISG-1.23c v3, ISG-1.24b, ISG-1.28 and ISG-1.29 re assessment
time limits).
[Generally the shift is desirable as a means of minimizing often short term political
influence in assessment deliberations and decisions. However, some of the shift may
concentrate too much discretionary power in one body and put the Agency in a position
of dictating to itself on matters on which it has a particular interest (e.g., in reducing its
own burdens). See the comments on judicial reviews.]

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