a. What Is Environmental Assessment?

Environmental assessment (EA) is a government process used to predict environmental effects of proposed developments before they are carried out (Canada, Canadian Environmental Assessment Agency, Basics of Environmental Assessment (Government of Canada, 2017) online: <https://www.canada.ca/en/environmental-assessment-agency/services/environmental-assessments/basics-environmental-assessment.html#gen01>).

As explained by the Supreme Court of Canada in Friends of the Oldman River Society v Canada (Minister of Transport), [1992] 1 SCR 3:

Environmental impact assessment is, in its simplest form, a planning tool that is now generally regarded as an integral component of sound decision-making.  Its fundamental purpose is summarized by R. Cotton and D. P. Emond in ‘Environmental Impact Assessment’, in J. Swaigen, ed., Environmental Rights in Canada (1981), 245, at p. 247:

The basic concepts behind environmental assessment are simply stated:  (1) early identification and evaluation of all potential environmental consequences of a proposed undertaking; (2) decision making that both guarantees the adequacy of this process and reconciles, to the greatest extent possible, the proponent's development desires with environmental protection and preservation.

As a planning tool it has both an information-gathering and a decision-making component which provide the decision maker with an objective basis for granting or denying approval for a proposed development; …. In short, environmental impact assessment is simply descriptive of a process of decision-making.

 

b. How Does EA Work?

Within Canada and around the world, EA has emerged as a predominant planning mechanism for resource development (Craik at 11). While processes vary between jurisdictions, it generally consists of the following stages (Learning to Listen at 8):

i)   the project proponent [the government, corporation, or individual seeking development] submits a detailed description of a proposed project, indicating its intent to develop;

ii)  the designated government agency conducts a review to determine whether an EA is required;

If an EA is required,

iii)  the proponent conducts a technical assessment of the project’s potential impacts and identifies proposed impact management strategies – ideally, in cooperation with potentially affected communities;

iv)  a technical and public review of the proponent’s impact statement is conducted;

v)  a decision is made … as to whether the project should proceed and, if so, under what conditions;

And, if the project is approved,

vi)  monitoring and managing programs are implemented.

This Report focuses on the EA regimes in place federally (governed by the Canadian Environmental Assessment Act, 2012 c 19 s 52 [CEAA]) and the province of Alberta (governed primarily by the Environmental Protection and Enhancement Act, RSA 2000, c E-12 [EPEA]). For a detailed description of the federal and Alberta regimes, click here. Detailed charts on the decision making structure for the federal and Alberta EA processes are available here and here.

While both systems vary in process and terminology, they predominantly follow the outline above and share several common features:

  • They both are administered by various government agencies (federally, either the Canadian Environmental Assessment Agency (the “Agency”), the National Energy Board, or the Canada Nuclear Safety Commission; provincially, coordinated by Environmental Assessment Act Director, conducted by either the Alberta Energy Regulator or Alberta Environment and Parks).
     
  • They both provide various opportunities for public comment when determining if an EA is required, setting the scope of environmental review, and during technical review. Generally, more complex and contentious projects proceed with more fulsome opportunities for public comment, including town halls and community meetings. Less complex or controversial projects often proceed with abridged systems of public comment, such as online and written submissions.
     
  • While both regimes seek to avoid environmental harm, neither offers a guaranteed substantive outcome. Even where a project is likely to cause significant adverse environmental effects (SAEE), it can nonetheless be approved.
     
  • To varying degrees, ultimate decision making rests in the political realm. Under the federal system, projects which are likely to cause SAEE are referred to Cabinet. Cabinet determines if the project is justified despite the environmental concerns. In the provincial scheme, either the Minister, the Alberta Energy Regulator or Alberta Environment and Parks determines if a project should proceed because it is in the “public interest” – a policy decision that has political dimensions extending far beyond environmental concerns.

There is a significant jurisdictional overlap between the federal and provincial EA regimes. While the provincial regime governs resource development that occurs within Alberta’s borders, the federal system applies to projects that have interprovincial or international effects, or those that with “effects that impact on Aboriginal peoples, such as their use of lands and resources for traditional purposes” (Canada, Canadian Environmental Assessment Agency, Canadian Environmental Assessment Act 2012 (Government of Canada, 2016) online: <https://www.canada.ca/en/environmental-assessment-agency/corporate/acts-regulations/legislation-regulations/canadian-environmental-assessment-act-2012.html>).

When a proposed development falls within both jurisdictions, the two governments cooperate to minimize overlap. This process is set out in a bilateral agreement: Canada–Alberta Agreement on Environmental Assessment Cooperation (2005) (Canada, Canadian Environmental Assessment Agency, Canada Alberta Agreement on Environmental Assessment (2005) (Government of Canada, 2005) online: <https://www.canada.ca/en/environmental-assessment-agency/corporate/acts-regulations/legislation-regulations/canada-alberta-agreement-environmental-assessment-cooperation/canada-alberta-agreement-environmental-assessment-cooperation-2005.html>).

 

c. EA and the Duty to Consult

The relationship between EAs and the duty to consult have become inextricably intertwined since Taku River. In that case, the Supreme Court of Canada held that existing EA processes have the potential to satisfy the duty to consult. The Taku River Tlingit First Nation participated in a provincial EA process as it related to the re-opening of an abandoned mine. The effected communities had a strong prima facie claim to Indigenous title and rights, so the duty to consult fell on the heavier end of the spectrum. They argued that they were owed an independent consultation process directly with the Crown. The Supreme Court of Canada disagreed, and held that the provincial EA process satisfied the duty to consult. They were not owed an independent consultation process:

40      The chambers judge was satisfied that any duty to consult was satisfied until December 1997, because the members of the TRTFN were full participants in the assessment process (para. 132).  I would agree.  The Province was not required to develop special consultation measures to address TRTFN’s concerns, outside of the process provided for by the Environmental Assessment Act, which specifically set out a scheme that required consultation with affected Aboriginal peoples.

 

The duty of consultation exists independently from EAs – it cannot be confined to an EA regime if that system is inadequate. Nonetheless, there is a “pragmatic attractiveness” to folding the systems into one process (Craik at 1). They have a “natural relationship” and are “to some degree inseparable” (Lambrecht QC, Kirk N, Aboriginal Consultation, Environmental Assessment and Regulatory Review in Canada (Regina: U of R Press, 2013) at 39; Craik at 1). As explained by Craik:

[M]uch of the information and analysis of the environmental effects of a proposed activity will be required to assess the impacts of that same activity on Aboriginal rights and interests. Integrating these processes is efficient since it minimizes the need for multiple consultations. As well … consultations in one sphere may impact the scope of the activity under consideration in the other sphere - for example, consultations within the EA may result in project modifications that would have implications for the duty to consult Aboriginal people …

 

The similarities between EAs and the duty to consult extend beyond efficiency. They are both:

  • Premised on the belief that process can impact decision making without a substantive guarantee. Both systems are grounded in the transformative power of good faith negotiations, and the belief that process can change results (Craik at 4, 21).
     
  • Built on a foundation of meaningful public participation. Consultation and EA processes collapse without active and engaged participation from stakeholders.
     
  • Heavily influenced by politics. Under the federal system, the decision to pursue a project despite significant environmental harm, and despite any objections as to the adequacy of consultation, is political.

However, these processes serve different purposes: EA seeks to harmonize the natural environment with resource development, while the duty to consult seeks to reconcile the pre-existence of aboriginal societies with the reality of Crown sovereignty (Craik at 1, Haida at para 26). These divergent purposes impact the participation and expectations of interested parties.  With EAs, input is sought regarding concerns that are shared across society, and without heightened legal standing. The duty to consult, however, serves the interests of a particular identifiable group with constitutional protections. Their rights are not uniform across society, and are not easily traded off (Craik at 23)