ABLawg

By: Shaun Fluker and Drew Yewchuk

PDF Version: The Expert Panel Report on Federal Environmental Assessment: Discretion, Transparency, and Accountability

Report Commented On: Expert Panel on the Review of Federal Environmental Assessment Processes, Building Common Ground: A New Vision for Impact Assessment in Canada

Last November, the University of Calgary’s Public Interest Law Clinic, on behalf of the Canadian Parks and Wilderness Society (CPAWS) Southern Alberta Chapter, presented to the Expert Panel responsible for Canada’s federal environmental assessment process. The presentation focused exclusively on problems with the federal environmental assessment process in Canada’s national parks under the Canadian Environmental Assessment Act 2012, SC 2012 c 19 s 52 (CEAA 2012). We described that presentation here, and the full written submission to the Panel including exhibits is available here (CPAWS Submission). The Expert Panel Report, Building Common Ground: A New Vision for Impact Assessment in Canada, was released April 5, 2017. Professor Arlene Kwasniak provided some background and an overview of key aspects of the report here. CPAWS left the Expert Panel with three messages in relation to the current federal environmental assessment process in the national parks: there is (1) too much discretion; (2) not enough transparency; and (3) a complete lack of accountability. In this post, we comment on how the Report addresses each of these points.

As an overall comment, it is disappointing the Expert Panel did not specifically address environmental assessment in the national parks. The Report focuses on sustainability as the measuring stick for impact assessment: “Federal IA [impact assessment] should provide assurance that approved projects, plans and policies contribute a net benefit to environmental, social, economic, health and cultural well-being.” (at 2.1.3) While sustainability is a commendable objective generally, this commitment to sustainability and its polycentric consideration of factors is not consistent with the legislated priority of maintaining or restoring ecological integrity in the national parks. The legislated ecological integrity mandate set out in section 8(2) of the Canada National Parks Act, SC 2000 c 32 demands an assessment process which skews in favour of environmental protection over economic and other social considerations. Perhaps, however, the Expert Panel was thinking of national parks and the ecological integrity mandate in its recommendation for regional impact assessments. The Report specifically calls for regional impact assessments that address matters such as baseline conditions and thresholds for federal lands with the potential for cumulative effects problems (at 3.5).

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By Arlene Kwasniak

PDF Version: Federal Environmental Assessment Re-Envisioned to Regain Public Trust – The Expert Panel Report

Report Commented On: Expert Panel on the Review of Federal Environmental Assessment Processes, Building Common Ground: A New Vision for Impact Assessment in Canada

This post considers the report of the Expert Panel (Panel) on the Review of Federal Environmental Assessment Processes, Building Common Ground: A New Vision for Impact Assessment in Canada released April 5, 2017 (EP Report). It provides background to the Report and focusses on three issues: The Purpose of Assessment, Who Assesses, and Interjurisdictional Assessments. Other faculty members may be providing further comments on the EP Report in future posts.

About the Panel and the EP Report

The Prime Minister’s November 2015 Environment and Climate Change mandate letter instructed Minister Catherine McKenna to commence a number of law review and reform initiatives, including to “immediately review Canada’s environmental assessment processes to regain public trust ….” Minister McKenna followed through by establishing the Panel. Through September to December the Panel held public and indigenous meetings in numerous locations in Canada, invited written and online submissions, and formed a Multi-Interest Advisory Committee (MIAC) to provide perspective and advice. Professor Shaun Fluker with Anne Marie Syslak, Executive Director of the Canadian Parks and Wilderness Society, presented to the Panel in Calgary on November 23 (see ABlawg post here), and Professors Martin Olszynski and Arlene Kwasniak separately presented on November 21 (Olszynski’s ABlawg post is here). All written submissions to the Panel are accessible on the Panel’s website. At the Panel’s behest, Professors Kwasniak and Olszynski additionally provided expert written advice, and participated in a meeting hosted by the Panel in Ottawa in February. The Panel received over 800 written submissions, heard over 400 oral presentations, and received 2,673 responses to the online Choicebook, a survey-like tool designed to gauge views on assessment reform. The public has until May 5^th to comment on the EP Report, through the website Let’s Talk Environmental Assessment. From my reading of the Report, the Panel clearly took its mission to regain public trust in federal environmental assessment very seriously and, excepting for reservations mentioned later, will be successful in its mission if government follows through with legislation that faithfully reproduces its bold vision in legislative details.

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