Notley right to push back on environmental assessment reform

A piece of proposed federal legislation known as Bill C-69, the Impact Assessment Act, which would restructure the environmental assessment process for energy projects in Canada, sits in second reading in the Senate, creeping forward to becoming law of the land.

Premier Rachel Notley takes exception to the proposed new process, stating that it “does not work for Alberta.” In a separate speech, she characterized the current environmental assessment process as a merry-go-round, implying that Bill C-69 will “supercharge” the merry-go-round instead of stopping it.

The premier is right to be critical of the bill. Sold as a process that would be more streamlined and science-based than the previous assessment structure of the National Energy Board, Bill C-69 not only fails to deliver, but it’s likely to make environmental assessments take even longer and be even more subjective.

Here’s why.

The bill, in its current form, adds a new phase before the review itself commences—a “planning phase for a possible impact assessment of a designated project, which includes requirements to cooperate with and consult certain persons and entities and requirements with respect to public participation.”

It also removes the “standing” test for public participation, which previously limited such participation to those who would (in theory, at least) be directly affected by the construction or operation of a proposed project. Without a standing test, the door will be thrown open to participants far away from the proposed project who are unlikely to have economic interests or to shoulder its environmental effects.

And again, the bill is supposed to be more science-based, overseen by the government’s “Chief Science Advisor.” This certainly sounds impressive until you realize that it also calls for the use of “Indigenous knowledge” and must consider “the intersection of sex and gender with other identity factors.” Setting aside the obviously non-quantifiable (and therefore non-scientific) nature of these two new requirements, the latter clause even has some lawyers puzzled. Jessica Kennedy of Osler, Hoskin & Harcourt LLP observes: “What is more concerning is if you take the issue of gender and gender identity more broadly and start examining, for example, a company’s policies and practices regarding gender, their hiring practices, their bathroom policies, their codes of ethics around treatment of people based on gender or other identity factors—race religion, those kinds of things.”

And as Queen’s Law Professor Bruce Pardy observes, Bill C-69 takes an inherently flawed, subjective environmental assessment process and makes it worse. According to Pardy, under the bill, assessments will consider a wider variety of objections to project approval. It signals government receptiveness to constituencies hostile to projects. Further, he notes that while the Trudeau government says the bill establishes principles and markers that will guide decisions, in reality, it will simply make environmental assessment—an inherently arbitrary, subjective and political process—even more so, creating a process to legitimize discretionary decisions divorced from substantive legal criteria.

As the Canadian Energy Pipeline Association noted in a parliamentary submission on Bill C-69, “It is difficult to imagine that a new major pipeline could be built in Canada under the Impact Assessment Act.” And that’s why Premier Notley is right. The potential for mischief in Bill C-69 makes it “not work for Alberta.” As structured now, it’s also unlikely to work for Canada.