Thank you very much, Madam Chair and committee members, for inviting Ecojustice to provide suggestions to the committee on Bill C-69.
Ecojustice is a national environmental law charity providing free legal services to Canadian conservation groups, concerned citizens, and first nations. Lawyers from Ecojustice appear across the country before courts and tribunals at every level, including with respect to environmental assessment, which will be the focus of my comments today.
I am an Ecojustice litigator and a part-time professor at the University of Ottawa faculty of law and director of Ecojustice's environmental law clinic at the faculty, where I teach environmental litigation, including with respect to environmental assessments. My comments today are informed by those various hats.
The points I propose to focus on are the following: first, the discretion to exempt projects from an assessment; second, the importance of clear requirements for decision-making; third, environmental justice; fourth, assessments of federal projects; and finally, review and appeal.
I've submitted a brief touching on other aspects of the proposed IAA as well as the proposed energy regulator act and the navigable waters act, which I commend for your review.
One of the most consequential effects when the 2012 legislation replaced the previous Canadian Environmental Assessment Act was the shift from a triggers-based approach to a project list approach, which limited potential assessments to a short list of major projects under federal jurisdiction. CEAA 2012 reduced the number of project assessments to dozens annually, compared with the former legislation that applied to thousands of projects annually. Even then, the 2012 act added an off-ramp whereby the agency could exempt projects from assessment. That discretion has been used 27 times since the current act came into force, or about five times per year. It is a regular part of agency operations.
Here are just two examples of exempted projects as a result of that discretion: a gold mine located near Timmins, Ontario, with an ore production capacity of 4,000 tonnes per day, where the minimum production capacity to trigger a federal assessment is only 600 tonnes per day; and a crude oil storage facility with capacity for 6.64 million barrels just outside the municipal border of Edmonton, Alberta.
The proposed IAA does not remedy this exclusion problem. It retains the discretion to exempt projects from a list that will likely only include those with the most potential for adverse effects in an area of federal jurisdiction, according to the government discussion paper on the subject. To be clear, I am not suggesting that any particular project ought not to have been approved. However, projects make the list because they have real potential for adverse effects, like toxic heavy industry in proximity to communities, like the two I mentioned. Failing to assess those projects undermines public trust in the process. Communities should get a full picture of the potential adverse effects of the project and ways the project might be improved. Not assessing such projects also undermines efforts to tackle cumulative effects, which is a core purpose of the bill.
We, therefore, recommend that section 16 of the act be amended to allow the agency to exempt a designated project from assessment only if it determines that there is no potential for impacts on areas within federal jurisdiction. In other words, if the presumption of federal jurisdiction that led a project to end up on the list in the first place is rebutted, it doesn't need an assessment. Otherwise, an assessment ought to take place.
The lack of clear criteria in the existing legislation has resulted in an interpretation by the courts that decision-making on assessments is based on nearly unfettered discretion. The assessment report is merely one input in an indeterminate sea of considerations that are never made public. The law is so vague that the Federal Court of Appeal concluded that decisions are, “based on the widest considerations of policy and public interest assessed on the basis of polycentric, subjective, or indistinct criteria”. In other words, after all of the evidence and public participation that goes into an assessment, there's no guarantee that it will do anything to influence the final decision.
What's more, courts have doubted whether the law imposes any standards for the content of the assessment report. According to some jurisprudence, it is doubtful whether the report is even required to contain substantive consideration of environmental effects, even serious ones like the release of liquid effluent from a nuclear reactor into Lake Ontario. The prevailing standard is “some consideration,” no matter how cursory or disinterested in relevant evidence that consideration may be.
To its credit, the proposed impact assessment act does try to do more than avoid acute harm. It requires politicians to consider the extent to which a project contributes to sustainability, including environmental, economic, health, and social factors. It also incorporates a consideration of Canada's climate commitments and indigenous interests, and it mandates reasons for environmental approvals.
However, the IAA should do more than require that factors be considered, since judicial history shows that mere consideration provides no enforceable standard. To avoid uncertainty as to whether the decision will really be based on the legislated factors, we suggest that proposed section 63 of the act be amended to ensure decisions are “based on” the legislated factors rather than simply taking them into consideration. That would be a significant change in law and accountability in the system and would help ensure that decisions that are tied to the EA process are evidence-based.
While the decisions should be based on the proposed section 63 factors, it's important to note that those factors are incomplete. The section should include bottom lines that place an outside boundary on ministerial or cabinet discretion so that all participants in impact assessment understand the minimum expectations. For example, the law should prevent the minister from deciding that adverse effects indicated in an assessment report are in the public interest if the evidence suggests otherwise. The minister should not make a positive public interest determination where adverse effects do not offset some more severe effect, or unless—as you heard from Professor Stewart Elgie yesterday—the benefits substantially outweigh the adverse effects. A project should also not be found in the public interest if evidence suggests it will result in the crossing of a dangerous ecological threshold or will substantially hinder Canada's ability to meet its international or national environmental, climate change, or biodiversity obligations. These bottom lines should not be reduced to optional considerations, which is currently the case with the proposed legislation. Proposed section 63 ought to be amended accordingly.
The bill also does not recognize that in Canada, vulnerable populations such as low-income populations, indigenous communities, and socially marginalized groups are disproportionately exposed to environmental hazards while also disproportionately lacking access to environmental benefits. In other words, environmental approvals often lack environmental justice.
Let me provide an example from some of our work. In “chemical valley”, located just outside Sarnia, Ontario, sirens can blare at any time of day to warn people to stay indoors when all-too-frequent pollution incidents occur.