Canadian Environmental Assessment Research Articles

Jurisdictional imaginaries as contested geographies: A metaphor analysis of reference cases about Canada's Impact Assessment Act

Jurisdictional imaginaries, defined as constitutive and productive fictions with real world effects, serve a distinct purpose in the context of debates over Canadian environmental impact assessment. Metaphors are one way in which jurisdictional imaginaries are maintained and contested. In creating associations between entities, metaphors mark storytelling about jurisdiction with the imprints of history and place, and shape thinking about arrangements of authority within contested geographies. In Canadian reference cases (questions posed by governments to courts to seek advice on legislation), the judiciary settle conflicts over jurisdiction through case-by-case assessments based on interpretations of the Canadian constitution in which debates about federalism loom large. Our analysis of two reference cases on Canada's Impact Assessment Act (IAA) evidenced disagreements in court decisions about the scope and significance of provincial and federal authority, which hinged on metaphors of separation and conflict, and drew on two competing imaginaries: a classical imaginary which envisions dualist, hierarchical, and exclusionary orders of authority between provincial and federal governments; and a modern imaginary which emphasizes jurisdictional overlap and flexibility in constitutional interpretation. Reading these divergent imaginaries against a backdrop of legal pluralism and ongoing settler colonialism, we argue that both imaginaries normalize, rather than unsettle, colonial political logics predicated on the replacement of Indigenous sovereignty by European legal orders. The IAA reference cases, far from mere technical assessments of the constitutionality of legislation, highlight political questions about what kind of society Canada is and could become.

Access to Environmental Justice in Canadian environmental impact assessment

Contemporaneous reforms to Canada and British Columbia's environmental impact assessment legislation have the potential to advance Access to Environmental Justice. Access to Environmental Justice is the ability of individuals and communities who are disproportionately and negatively impacted by environmental decisions to access legal and regulatory processes and to have their concerns heard and addressed through environmental decision-making and dispute resolution. Access to Environmental Justice connects concepts of environmental justice, public participation, the rule of law, and access to justice to provide a framework for evaluating the implementation of environmental impact assessment laws. We conducted a preliminary analysis of early implementation of legislative reforms in Canada and British Columbia. Our analysis indicates that a number of factors influence who is seeking to access environmental justice through environmental impact assessment, including geography, project type, and the availability of a legislative mechanism that allows anyone to request an assessment. Whether Canada and British Columbia's reforms are advancing Access to Environmental Justice requires continued analysis as projects continue to be assessed under the new laws.

Articulating Indigenous Law as “Environmental Protection”? The Piikani Nation and the Oldman River Dam Environmental Assessment Review Process

This article discusses the Piikani Nation’s attempts to challenge the Oldman River Dam, as this struggle highlights the challenges Indigenous communities can face in attempting to articulate water and land relationships through the languages and structures of settler colonial law. Completed in 1991, the dam faced multiple forms of opposition by Piikani members, including lawsuits and an attempt by community activists representing the Lonefighters Society to divert the river around an existing irrigation weir. For this article, I focus on how Piikani Nation members attempted to assert their geographic relationships with the Oldman River through participation in the Canadian Environmental Assessment Review process. Within this process, Piikani elders, activists, and community advocates mobilized various conceptions of law, such as treaty rights and Piikani and Blackfoot legal traditions. This article therefore seeks to answer this question: How do Indigenous forms of jurisdiction articulate with Canadian legal and regulatory fora, such as the Environmental Assessment Review process? To answer these questions, I draw from both critical political economy and Indigenous geographies, as I argue that in struggles against the capitalist reterritorialization of Indigenous places, it is through the assertions of competing legal jurisdictions that these struggles tend to find their most profound expression. Specifically, I use the concept of articulation from Marxian political economy, suggesting this theory, in conversation with legal pluralism scholarship, provides a generative framework for critically interrogating how Indigenous legal orders interact with Canadian law.

Lack of consideration of ecological connectivity in Canadian environmental impact assessment: Current practice and need for improvement

ABSTRACT This study seeks to understand the extent to which ecological connectivity has been considered in EIA in Canada. Several factors that may influence the consideration of connectivity were analyzed in an evaluation of 14 environmental impact statements (EIS) obtained from the Canadian Impact Assessment Registry. Connectivity is largely absent from the EIA process, and even projects that attempted to consider connectivity lacked the rigor required to effectively assess impacts on connectivity. Projects that included connectivity as a valued component performed somewhat better, whereas the assessment of connectivity was not affected by different federal environmental acts (CEAA 1992 vs. CEAA 2012), development sectors, or proponent types. Between sections of the EIS, a significantly greater number of evaluation criteria were met in the scoping section compared to all other sections. Without adequate guidance, connectivity analysis in EIA has been conducted ad hoc, with considerable variation in quality. Including connectivity consideration in EIA legislation would provide a legal framework to address the lack of policies, standards, and assessment guidelines. We provide recommendations for integrating connectivity in EIA in Canada and elsewhere.

Chapter 1: The Evolution of Canadian Environmental Assessment Practice and Literature

Environmental assessment (EA) processes have been an important tool in the governance toolbox in Canada for over 40 years. This chapter traces the history of federal EA in Canada from the EARP Guidelines Order to CEAA and the IAA. We also offer some highlights from the historical Canadian EA literature.

The time is now to improve the treatment of biodiversity in Canadian environmental impact statements

Global biodiversity loss is among the pressing environmental challenges facing the planet in the 21st century. Environmental impact assessment (EIA) offers one possible means to address some of the drivers of biodiversity loss, yet research over the past 20 years has shown that the treatment of biodiversity within EIA is often insufficient. This review addresses how well biodiversity has been treated in the environmental impact statements (EISs) for 14 projects conducted under the federal Canadian Environmental Assessment Act or its 2012 successor (CEAA2012). The selected projects commenced between 2005 and 2014, cover most Canadian provinces, and include a range of project types. A biodiversity assessment index (BAI) is calculated to assess the information quality of EISs with respect to biodiversity, scoring projects from zero to one based on 49 review criteria. Results are discussed for each stage of the EIA process. Average BAI for the 14 projects was just below 0.5, indicating many substantial deficiencies regarding the inclusion of biodiversity. The BAI between projects conducted under the two Acts did not differ significantly, while project footprint, EIS page-length, and the page-length of biodiversity-related chapters were all positively related with BAI. Some common problems in these EISs included not defining ecologically relevant study areas, poor consideration of alternatives with respect to biodiversity impacts, limited description of the methods for comparing alternatives, impact assessments and analysis, mitigation and monitoring, and a lack of information on the likely success of mitigation, among others. Recommendations for improving the poor treatment of biodiversity in EISs are provided and include, inter alia, setting clear requirements regarding minimum survey efforts, implementing measurable targets or thresholds for important biodiversity features, and adopting regional-EIA to improve the treatment of cumulative effects. Improving the quality of biodiversity considerations in EISs will be important if EIA is to play a role in meeting the measurable outcome-based conservation targets envisioned for the post-2020 global biodiversity framework.

Estuary habitat associations for juvenile Pacific salmon and pelagic fish: Implications for coastal planning processes

Abstract Assessment of risk from industrial developments often relies on simple habitat descriptions for focal species. However, simple habitat metrics may not be accurate predictors of locations that species actually use. Understanding the nature of habitat is particularly pressing for estuaries, as they are among the most degraded ecosystems globally but provide critical rearing habitat for many species, including Pacific salmon. Canadian environmental impact assessment approaches use simple habitat‐type models to assess risk from developments and assume that different species of salmon rely on the same habitat. This study asked what combination of habitat type and biophysical covariates best predicted use of estuary habitat by juvenile salmon and two dominant small pelagic fish. Fish were sampled via purse seine throughout the Skeena River estuary (British Columbia, Canada) for 2 years across different habitat types (eelgrass, open water, sandy banks, and rocky shores). Simple habitat‐type models were compared with models with more complex biophysical variables to predict the variability in relative abundance of juvenile Chinook (Oncorhynchus tshawytscha), coho (Oncorhynchus kisutch), and sockeye (Oncorhynchus nerka) salmon, along with pelagic fish species Pacific herring (Clupea pallasii) and surf smelt (Hypomesus pretiosus). The combination of variables that best predicted abundance differed across fish species. Pelagic fish were associated with near‐shore sites, increased temperature (herring), and increased salinity (smelt). Juvenile coho and sockeye salmon (but not Chinook), were more abundant in higher turbid waters. Chinook and sockeye salmon used eelgrass habitat more frequently than other habitat types, whereas coho salmon were more abundant in areas with high macroalgae cover. Models with these variables had greater predictive power than those using habitat type alone for juvenile salmon. Simple classifications of estuary habitat currently used in environmental risk assessment may not reflect the complex nature of fish–habitat associations. Understanding biophysical factors associated with estuary fish abundance can inform management of estuary habitat to support their nursery function for important fish.

Consideration of climate change mitigation in Canadian environmental assessment: intention and implementation

ABSTRACTQuantifying a proposed project’s greenhouse gas (GHG) emissions and scrutinizing their effect on climate change are increasingly required in Canadian environmental assessment (EA) processes. This paper investigates to what degree an EA authority’s intention for the inclusion of GHG considerations has resulted in implementation into environmental impact statements (EISs) by proponents and how these considerations influence the achievement of GHG reduction targets. Fifteen projects across five Canadian jurisdictions were reviewed. The examination revealed that well-developed intentions by EA authorities did not necessarily result in proponents following guidelines for GHG consideration in their EISs due to the absence of regulation or clearly defined policies. Conversely, even though intentions by an EA authority are underdeveloped in some jurisdictions, EISs sometimes exhibited thorough GHG assessments due to mechanisms in the EA process through which GHG consideration by the proponent could be compelled. The examination did not reveal how GHG consideration in EA currently assists in meeting reduction targets. A GHG emissions limit imposed during the EA process could link EA to success in meeting these targets.

Drawing Lines in the Sand: Parliament's Jurisdiction to Consider Upstream and Downstream Greenhouse Gas (GHG) Emissions in Interprovincial Pipeline Project Reviews

Many constitutional questions arise in the context of assessing, approving, and regulating interprovincial pipelines. This paper examines the extent to which upstream and downstream greenhouse gas (GHG) emissions can be considered and acted upon when proponents seek federal approval to build, expand, or modify an interprovincial pipeline. This question has become relevant in the context of Canada's international commitments under the Paris Agreement, which require rapid, broad, and systemic decarbonisation of the Canadian economy. The article examines the questions through the lens of the regulatory frameworks in force at the time of writing (the National Energy Board Act and the Canadian Environmental Assessment Act, 2012) as well as draft legislation under Bill C-69, namely the Canadian Energy Regulator Act and the Impact Assessment Act. Although the new laws do not explicitly refer to indirect emissions, a reasonable interpretation of the legislation suggests that federal regulators would be within the bounds of their statutory authority to include indirect emissions in their deliberations and decision-making. A constitutional analysis suggests that that they would also be justified in doing so. The courts have confirmed federal jurisdiction over regulation of GHG emissions under the criminal law power, and there are two reference cases active at the time of writing that will examine the jurisdictional scope of the peace, order and good government power in the context of carbon pricing. Although it is unchartered jurisprudential territory, it is reasonable to conclude that under the new regulatory regime, Parliament will have the statutory and constitutional authority to consider the full implications of GHG emissions associated with an interprovincial pipeline proposal, especially if the courts continue to interpret jurisdictional powers through the flexible, purposive lens of cooperative federalism.

Sources of uncertainties in environmental assessment: Lessons about uncertainty disclosure and communication from an oil sands extraction project in Northern Alberta

This study investigates practices of uncertainty disclosure and communication in Canadian environmental assessment (EA) in the context of the Joslyn North Oil Sands Mine project. Nineteen interviews with project stakeholders were conducted, revealing significant uncertainties about the project, attributed to multiple factors including lack of clarity in the terms of reference and requirements of the proponent; the project’s predicted impacts and proponent commitments to mitigation; cumulative effects and the potential for effects interaction with other projects; Aboriginal engagement, including engagement processes and broader socio-political context; and poor uncertainty disclosure and communication practices. Some uncertainties were disclosed but at times downplayed to render the project more palatable through the EA process. Informants stated that this is not an uncommon occurrence in oil sands EA. Recommendations to improve uncertainty disclosure and communication in EA and enhance the consideration of uncertainties in decision-making are provided.

Scholar and practitioner views on science in environmental assessment

ABSTRACTThis study investigated the views of environmental assessment (EA) scholars and practitioners on science in EA. Fifty-six online survey responses were received, including 35 scholars and 21 practitioners. To supplement the survey data, we interviewed 13 Canadian EA practitioners. The study indicates that EA scholars were more dissatisfied with the quality of science in EA than the practitioners and their perceptions were found to be related to their understanding of science and underlying expectations of scientific practices in EA. This study confirms a gap between science inside and outside EA. Factors contributing to the barriers to filling this gap include EA stakeholders’ different understandings of and expectations for the quality of science, the role of scholars in EA, and the purpose and objectives of EA. These disagreements imply insufficient and/or ineffective communications among EA stakeholders, which should be addressed if a more collaborative arrangement is to be developed for improvements in the quality of science in EA.

The Canadian Crown's Duty to Consult Indigenous Nations' Knowledge Systems in Federal Environmental Assessments

In 2016, the Government of Canada undertook a review of regulatory processes for federal environmental assessments (EAs) in preparation for replacing the Canadian Environmental Assessment Act. An EA Expert Panel was appointed to review numerous oral and written submissions from Indigenous nations, government agencies, and the public. The Panel's final report included recommendations that were considered by Canada in the development of its currently proposed new legislation regarding federal EAs: Bill C-69. The goal of this analysis is to evaluate the extent to which Canada’s review and proposed legislation actually addressed the Crown’s duty to consult Indigenous nations' knowledge systems. Detailed examination of the Panel's review and Canada's response shows clearly that the Crown's duty has not been fulfilled by the proposed legislation, in either spirit or practice.

Perspectives on Driving Changes in Project-based Cumulative Effects Assessment for Biodiversity: Lessons from the Canadian Experience.

Cumulative effects assessment (CEA), as a required practice for the environmental assessment (EA) of projects in many countries, faces several practical challenges, especially related to biodiversity. Drawing on the perspectives and experiences of Canadian EA practitioners, this paper explores options or drivers of change for improving project-based assessment to better tackle cumulative effects on biodiversity. An on-line survey was conducted with 40 professionals from the private sector, government departments/agencies, universities, and non-governmental organizations, examining the current challenges and opportunities regarding: CEA process for biodiversity; responsibilities for undertaking CEA tasks; resources to support and promote good CEA practice. In terms of process, there is shared understanding on: (i) the need of EA terms of reference to provide specific directions on CEA; (ii) CEA should capture both human and natural drivers of cumulative change; (iii) spatial boundaries for CEA should be based on ecological boundaries. There are dissenting views about: (i) whether CEA should consider all valued components (VCs) potentially affected by a project or only those for which residual effects are predicted; and (ii) delimitation of future temporal limits. In terms of responsibilities, participants agreed that project proponents should retain a central role in conducting CEA, but government agencies should lead the collection/provision of information about other projects in the study area and baseline VC conditions. Information and knowledge management resources could be also applied in the context of governmental agencies and consultancy firms to support CEA for biodiversity.

A Question of Inclusion: BC Hydro’s Site C Dam Indigenous Consultation Process

Site C Dam, a third large hydroelectric project on the Peace River, Canada, could potentially impact many Indigenous groups’ traditional ways of life and cultural lands. Through an explanatory case study, we evaluated the quality of the consultation process between three Indigenous groups and BC Hydro. We reviewed all relevant project documents ([Formula: see text]) from the Canadian Environmental Assessment Agency Public Registry site to identify concerns of three affected Indigenous groups, then evaluated the Indigenous consultation process against best management practices (BMPs) of the International Association for Impact Assessment and the World Bank. Overall, BC Hydro did not apply the international BMPs effectively, due in part to the legislated process and the proponent’s own consultation approach, which limited the ability of the proponent to obtain free, prior, informed consent or identify resource rights. Our findings provide new insights into constraints affecting social impact assessments within and outside of Canada.

Aquatic monitoring programs conducted during environmental impact assessments in Canada: preliminary assessment before and after weakened environmental regulation.

Aquatic monitoring programs are imperative for the functioning of the environmental impact assessment (EIA) process and a cornerstone for industrial compliance in Canada. However, in 2012, several leading pieces of federal environmental legislation (e.g., Canadian Environmental Assessment Act c.19, s. 52, 2012) were drastically altered, effectively weakening levels of environmental protection for aquatic ecosystems during project developments. This paper assesses the impact of CEAA 2012 on aquatic monitoring programs (and subsequent monitoring data reporting) across Canada for ten projects (five completed pre-CEAA 2012 and five completed post-CEAA 2012). Projects included four energy and six mining projects and were selected based on the following criteria: (i) representative of Canada's resource economy; (ii) project information was publicly available; and (iii) strong public interest. Projects pre- and post-CEAA 2012 exhibited few apparent differences before and after environmental regulatory changes. However, wide discrepancies exist in numbers and types of parameters reported, along with a lack of consistency in reporting. Projects pre-CEAA 2012 provided more follow-up monitoring commitments. Although qualitative differences remain inconclusive, this paper highlights requirements for further assessment of aquatic monitoring and follow-up programs in Canada. Recommendations for the government to consider during reviews of the federal environmental assessment processes include (i) improved transparency on the Canadian Environmental Assessment Agency website ( https://www.ceaa-acee.gc.ca/ ); (ii) creation of a legally binding standardized aquatic monitoring program framework to ensure that all Canadian aquatic ecosystems are monitored with equal rigour; and (iii) commitments and justification related to frequency of aquatic monitoring of water quality.

2. Canada

In Canada’s federal system, most environmental legislation is enacted by the provinces, but 2017 was a year in which many of the most significant developments in environmental legislation were at the federal level. The government of Canada is in the process of making three significant legislative changes to the current environmental law: proposed amendments to the Canadian Environmental Protection Act (SC 1999, c. 33) and the Greenhouse Gas Pollution Pricing Act, and the repeal and replacement of the Canadian Environmental Assessment Act (SC 1999, c. 33). These changes will result in environmental law that more explicitly integrates international norms, environmental rights, sustainable development, and meaningful public participation and consultation with Indigenous peoples. The Canadian Environmental Protection Act is the centrepiece of Canadian federal environmental legislation. This extensive and complex legislation addresses wide-ranging issues, including public participation (SC 1999, c. 33, ss. 11–42), information gathering (ss. 43–55), pollution prevention (ss. 56–63), controlling toxic substances (ss. 64–103), biotechnology (ss. 104–15), controlling pollution and managing wastes (ss. 116–92), emergencies (ss. 193–205), and Aboriginal land (ss. 206–15). There are two notable changes underway to the Act—a discrete change that is long overdue and a recommended overhaul of the entirety of the Act.

Timing of Canadian Project Approvals: A Survey of Major Projects

This article provides a detailed canvassing of the Canadian energy project approval process, beginning with an examination of the evolution of the project approval process in Canada and the current legal framework under the Canadian Environmental Assessment Act, 2012. The article then applies the framework to numerous major energy project approvals in Canada from 2010 to present day, and provides a comparative analysis to the project approval processes in both the United States and Australia in order to find possible solutions to the issues plaguing our current system. This article identifies and discusses current, practical issues and provides recommendations for how the project approval process in Canada can become more efficient for all those involved.

Aboriginal Participation in Canadian Environmental Assessment: Gap Analysis and Directions for Scholarly Research

There has emerged in recent years an increased industry and regulatory demand for the streamlining of environmental assessment (EA), and at the same time, persistent expectations by Aboriginal communities for more effective and meaningful engagement in development decisions. This paper examines the extent to which scholarly research has contributed to solutions for meaningful Aboriginal participation amidst demands for more efficient and shorter timelines for participation and decision-making. Three research priorities are identified from our assessment of peer-reviewed EA scholarly research: the need for empirical-based research assessing the impacts of streamlining on participation and the impacts of meaningful Aboriginal participation on EA efficiencies; the need for better defined scope of issues that should be addressed inside the EA process versus those that are best addressed external to EA; and the need to develop and test alternative mechanisms for Aboriginal participation at the regional and strategic levels, and their contributions to regulatory-based EA decisions.

The Canadian context for evidence-based conservation and environmental management

Canada has strong institutional capacity for science-based decision-making related to natural resource conservation and environmental management. Yet, the concept of using systematic reviews (conducted in accordance with established guidelines) to support evidence-based conservation and environmental management in Canada is in its infancy. Here we discuss the Canadian context for implementing more rigorous evidence-based approaches using systematic reviews. Of particular relevance to Canada is its vast size, broad diversity of ecosystems and heavy economic reliance on natural resources that vary widely in the type and scale of their environmental effects. These factors result in a wide variety of environmental monitoring needs over an extensive area that pose challenges to the scientific community charged with overseeing wise use of the environment. In addition, there are diverse and engaged user groups (e.g., hunters, trappers, fishers, bird watchers, foresters) and indigenous peoples that have constitutional rights to their natural resources. Traditional environmental knowledge is a complementary source of evidence in the Canadian environmental impact assessment process and therefore must be a part of evidence synthesis. Systematic reviews are not intended to replace local field studies, but rather have the opportunity to draw upon a broader suite of evidence that can be interfaced with local perspectives. The existing institutional structures in Canada could easily incorporate systematic reviews into their science advice and decision-making frameworks but to date, there are few examples of where this has occurred. Drawing on the expertise of a growing global collaboration for environmental evidence synthesis, Canadian institutions (federal, provincial and NGO) are poised to more broadly incorporate systematic reviews once their benefits are fully realized and the capacity to undertake such systematic reviews is fully developed. Systematic reviews offer a consolidated view of the available scientific literature on a given question. The results may offer significant value when working with stakeholders and decision makers contributing other sources of information to the question. For example, mechanisms to capture and integrate scientific knowledge with stakeholder and traditional knowledge may benefit from the scientific sources being filtered, interpreted and summarized for discussion. In other cases, where timeframes for decision making preclude formal systematic reviews, opportunities for more rapid evidence synthesis methods will be needed before the concept will be fully embraced.

Looking up, down, and sideways: Reconceiving cumulative effects assessment as a mindset

Despite all the effort that has gone into defining, researching and establishing best practices for cumulative effects assessment (CEA), understanding remains weak and practice wanting. At one extreme of implementation, CEA can be described as merely an irritant to the completion of a project-specific environmental assessment (EA). At the other extreme, the conceptual view is that all effects in EA should be deemed cumulative unless demonstrated otherwise. Our purpose here is to consider how we might reconceive CEA as a mindset that is at the heart of absolutely every assessment of valued ecosystem component (VEC) to ensure that we understand the relative contributions of various stressors and can decide when cumulative effects may foreclose future activities due to impacts on VECs. Conceptually, we ground the CEA mindset in the context of three lenses that must all be functioning and working together for the mindset to be operative: a technical lens; a law and policy lens; and a participatory lens. Our arguments are based on a review of the CEA, strategic effects assessment (SEA) and regional effects assessment literatures, an examination and consideration of Canadian EA and SEA case practice, and our combined professional experiences. Through using the Bay of Fundy in Canada as a case example, we establish the concept of the CEA mindset and an approach for moving forward with implementation.