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CHRONIQUE DE JURISPRUDENCE ET DE LGISLATION
The New Canadian Environmental Assessment Act – Bill C-78:
A Disappointing Response to Promised Reform
Michael I. Jeffery, Q.C.*
I. Background
Environmental impact assessment (E.I.A.) first appeared in Canada at the
federal level in the early 1970s.’ It represented this country’s response to an ear-
lier initiative of the Nixon administration in the United States, which culminated
in the enactment of the National Environmental Policy Act2 in 1969.
In terms of both methodology and purpose, E.I.A. marked a radical depar-
ture from existing regulatory models in environmental policy, changing the
focus from regulation and control to planning and prevention. The regulatory
model invariably contains a general prohibition against the discharge of pollu-
* Partner, Fraser & Beatty, Toronto (formerly Chair, Environmental Assessment Board of
Ontario).
McGill Law Journal 1991
Revue de droit de McGill
‘The environmental assessment process at the federal level in Canada began not as legislation,
but rather as a series of Cabinet directives dated June 3, 1972 and December 20, 1973. A further
Cabinet directive in 1977 initiated some additional improvements, and the Government Organiza-
tion Act, 1979, S.C. 1978-79, c. 13 effectively reaffirmed the responsibility of the federal Minister
of the Environment for E.I.A. of the activities of the federal government and related bodies. These
early efforts were consolidated in the Environmental Assessment and Review Process Guidelines
Order, SOR/84-467 (June 22, 1984) [hereinafter Guidelines Order or E.A.R.P.]. Following a series
of decisions by the Federal Court (discussed infra, notes 9-29 and accompanying text), the federal
government recently moved to legislate the environmental assessment process in Bill C-78, An Act
to Establish a Federal Environmental Assessment Process, 2d Sess., 34th Par]., 1990 [hereinafter
Canadian Environmental Assessment Act or C.E.A.A.]. The Bill was tabled June 18, 1990 and
received second reading on October 30, 1990. It was then considered by the Special Committee
on the Federal Environmental Assessment Process. Public hearings have been held, and while the
bill died on the order paper, it has been reintroduced in identical form as Bill C-13, An Act to Estab-
lish a Federal Environmental Assessment Process, 3d Sess., 34th Par]., 1991 and has been referred
to a legislative commitee.
283 Stat. 852 (1970), as amended, 42 U.S.C. 4321 (1975) [hereinafter N.E.PA.]. The Act was
proclaimed in force January 1, 1970.
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tants into the natural environment, with permissible levels or concentrations set
out in accompanying regulations. In contrast, E.I.A. is anticipatory in nature,
involving the evaluation of alternatives to the proposed undertaking, and alter-
native methods of carrying it out, prior to the start of any construction. This
approach is viewed as the principal means of ensuring an environmentally
acceptable solution in matters of development. In essence, E.I.A. may be char-
acterized as preventative rather than reactive. Unlike the regulatory approach,
which emphasizes adherence to predetermined standards, E.I.A. is primarily
used as a planning tool to provide the regulatory authority with an objective
basis upon which to grant or deny project approval.
The underlying philosophy of E.I.A. is illustrated by the wording of s. 102
of N.E.PA., which states as a matter of policy that all federal government agen-
cies must
utilize a systematic interdisciplinary approach which will ensure the integrated use
of the natural and social sciences and the environmental design arts in planning
and in decision making which may have an impact on man’s environment. 3
It is not uncommon for courts in the United States to refer to the inherent
objectives of environmental legislation in the context of specific decisions. For
example, in the case of Boston (City) v. Volpe,4 Coffin J. stated that
the purpose of the statute [N.E.PA.] was to “build into the agency decision proc-
ess” environmental considerations, “as early as possible,” taking into account “the
overall, cumulative impact of the action proposed (and of further actions contem-
plated)” and “environmental consequences not fully evaluated at the outset of the
project or program.” 5
Although the scope of the American legislation is extremely broad, it is
nevertheless considered by many to be fundamentally flawed because it fails to
provide an independent regulatory/enforcement mechanism or process. This
lack of a separate administrative structure has meant that the task of enforcing
statutory norms has gradually fallen to the courts.6
Until recently, reliance upon the courts in the United States for the neces-
sary supervision with respect to environmental impact legislation stood in sharp
contrast to the Canadian perception of the proper role of the judiciary in the
process. In light of the more activist role of the U.S. Supreme Court, particularly
with respect to social policy issues, it is not surprising that the American people
31bid., s. 102.
4464 F. 2d 254 (1972).
51bid. at 257, quoting 36 Fed. Reg. 7724 (1971); see also Chelsea Neighbourhood Association
v. U.S. Postal Service, 389 F. Supp. 1171 (1975) at 1182; Conservation Society of Southern Ver-
mont v. Secretary of Transportation, 362 F. Supp. 627 (1973); and Indian Lookout Alliance v. Volpe
484 F. 2d 11 (1973).
6See F.R. Anderson, N.E.P.A. in the Courts (Washington: Resources for the Future, 1973).
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and their governments remain more willing to have environmental assessment
legislation and policy interpreted and enforced through judicial intervention. In
Canada, the opposite is certainly the case, for notwithstanding the increased role
of the judiciary following the enactment of the Canadian Charter of Rights and
Freedoms’ in 1982, any supervisory function similar to that exercised by U.S.
courts would most certainly be perceived as an unwarranted intrusion into the
administrative and regulatory realm of government.’
II. The Legal Framework for the Federal Environmental Assessment
Process
For reasons which are still not fully understood, the government which first
introduced comprehensive environmental assessment at the federal level chose
to do so by means of a Cabinet directive in the form of a Guidelines Order,
rather than by way of legislative enactment. The “self-assessment” nature of the
Guidelines Order clearly indicates that the government wished to retain as much
flexibility as possible with respect to the environmental assessment of federal
undertakings. In fact, right up until the Federal Court decisions in the Rafferty
Alameda9 cases, the government resisted any suggestion that the application of
the E.A.R.P. was mandatory with respect to projects or proposals falling within
the scope of the Guidelines.
By adopting guidelines as opposed to enacting specific E.I.A. legislation,
the government quite reasonably assumed that the E.A.R.P. provisions were just
that: guidelines to be followed when and if the governmental authority respon-
sible for their application, in its unfettered discretion, thought it appropriate to
do so. Supporters of this interpretation could also point to the wording of the
supporting legislation which provided the basis in law for the Guidelines, and
attested to the discretionary nature of the power of the Minister of the Environ-
ment to promulgate guidelines in the first place. Section 6 of the Department of
the Environment Acto states:
7Part I of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.), 1982,
c. 11.
SSee S.D. Clark, ed., Environmental Assessment in Australia and Canada (Vancouver: Westwa-
ter Research Centre, University of British Columbia, 1981) at 43.
9Canadian Wildlife Federation Inc. v. Canada (Minister of Environment), [1989] 3 F.C. 309,
[1989] 4 W.W.R. 526 (T.D.), Cullen J. [hereinafter Rafferty Alameda No. 1 cited to F.C.], aff’d Sas-
katchewan Water Corp. v. Canadian Wildlife Federation Inc. (sub nom. Canadian Wildlife Feder-
ation Inc. v. Canada (Min. of Environment)) (1989), [1990] 2 W.W.R. 69, 38 Admin. L.R. 138
(F.C.A.) [hereinafter Rafferty Alameda No. 2.]. Since the first Rafferty Alameda decision on April
10, 1989, four decisions have been rendered by the Federal Court regarding the environmental
assessment of the Rafferty and Alameda dam projects in Saskatchewan. See infra, notes 15-29 and
accompanying text.
‘0Originally s. 6(2) of the Government Organization Act, 1979, supra, note 1, s. 14; now s. 6
of the Department of the Environment Act, R.S.C. 1985, c. E-10 [hereinafter Department of the
Environment Act].
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6. For the purpose of carrying out his duties and functions related to environmen-
tal quality, the Minister of the Environment may, by order, with the approval of the
Governor in Council, establish guidelines for use by departments, boards and
agencies of the Government of Canada and, where appropriate, by corporations
named in Schedule D to the Financial Administration Act and regulatory bodies
in the exercise of their powers and the carrying out of their duties and functions
[emphasis added].
At the time the Guidelines Order was made, there appeared to have been
no statutory obligation compelling the Minister to establish guidelines at all, for
s. 6 uses the word “may,” not “shall,” in outlining the Minister’s powers.
In hindsight it is reasonable to conclude that, until recently, both the gov-
ernment and indeed many others were oblivious to the possibility that the courts
might find the E.A.R.P. Guidelines Order to be “not a mere description of policy
or programme” but instead a Regulation which “may create rights and be
enforceable by way of mandamus.””
The far-reaching decisions of the Federal Court in the Rafferty Alameda
cases ‘2 generated shockwaves within the federal bureaucracy which are still
being felt today. The result in these cases accelerated the pace of and gave a
sense of urgency to reform already underway.
Before reviewing the circumstances giving rise to the Federal Court deci-
sions in the Rafferty Alameda and Oldman River 3 cases, and their impact upon
the proposed new Canadian Environmental Assessment Act, it will be useful to
outline briefly the relevant provisions of the Guidelines Order.
A. The Guidelines Order
2. In these Guidelines,
“Environmental Impact Statement” means a documented assessment of the envi-
ronmental consequences of any proposal expected to have significant environmen-
tal consequences that is prepared or procured by the proponent in accordance with
guidelines established by a Panel;
“department” means …
(a) any department, board or agency of the Government of Canada, and
(b) any corporation listed in schedule D to the Financial Administration Act and
any regulatory body;
“initiating department” means any department that is, on behalf of the Govern-
ment of Canada, the decision making authority for a proposal;
“Minister” means the Minister of the Environment:
lRafferty Alameda No. 1, supra, note 9 at 322.
12See infra, discussion accompanying notes 15-28.
13See hnfi-a,
discussion accompanying notes 29-38.
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“proponent” means the organization or the initiating department intending to
undertake a proposal;
“proposal” includes any initiative, undertaking or activity for which the Govern-
ment of Canada has a decision making responsibility.
3. The Process shall be a self assessment process under which the initiating
department shall, as early in the planning process as possible and before irrevoca-
ble decisions are taken, ensure that the environmental implications of all proposals
for which it is the decision making authority are fully considered and where the
implications are significant, refer the proposal to the Minister for public review by
a Panel.
4.(1) An initiating department shall include in its consideration of a proposal pur-
suant to section 3
(a) the potential environmental effects of the proposal and the social effects
directly related to those environmental effects, including any effects that are exter-
nal to Canadian territory; and
(b) the concerns of the public regarding the proposal and its potential environ-
mental effects.
(2) Subject to the approval of the Minister and the Minister of the initiating
department, consideration of a proposal may include such matters as the general
socio-economic effects of the proposal and the technology assessment of and need
for the proposal.
5.(1) Where a proposal is subject to environmental regulation, independently of
the Process, duplication in terms of public reviews is to be avoided.
(2) For the purpose of avoiding the duplication referred to in subsection (1), the
initiating department shall use a public review under the Process as a planning tool
at the earliest stages of development of the proposal rather than as a regulatory
mechanism and make the results of the public review available for use in any reg-
ulatory deliberations respecting the proposal.
6. These Guidelines shall apply to any proposal
(a) that is to be undertaken directly by an initiating department;
(b) that may have an environmental effect on an area of federal responsibility;
(c) for which the Government of Canada makes a financial commitment; or
(d) that is located on lands including the offshore that are administered by the
Government of Canada. 14
11. The Rafferty Alameda Cases
What have become known as the Rafferty Alameda cases in fact represent
a number of interrelated proceedings before the Federal Court of Canada involv-
ing both the trial and appellate divisions. In view of the limited scope of this
commentary, only the initial decision of Cullen J. of the Trial Division will be
discussed in detail. 5 It is primarily this decision which gave rise to the contro-
versy which followed regarding the binding nature of the Guidelines.
14Guidelines Order, supra, note 1, ss 2-6.
15Rafferty Alameda No. 1, supra, note 9.
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A. The Facts
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In order to alleviate fluctuating flood and drought conditions in the Souris
River basin in southern Saskatchewan, the provincial government indicated its
intention to construct two dams, the Rafferty dam, to be located on the Souris
River near the town of Estevan, and the Alameda dam on Moose Mountain
Creek, which flows into the Souris near Alameda, Saskatchewan.
The Souris River is an international waterway, flowing from Saskatche-
wan. The project was to be undertaken by the Government of Saskatchewan
through the Souris Basin Development Authority (S.B.D.A.) as agent for
another Crown corporation, the Saskatchewan Water Corporation.
The S.B.D.A. prepared a provincial environmental impadt statement which
was publicly released and, after a review by a Board of Inquiry, the Saskatch-
ewan Minister of the Environment and Public Safety granted the authority to
proceed subject to certain conditions. On June 17, 1988 the federal Minister of
the Environment (the Minister), determined that the review of the provincial
environmental impact statement by Environment Canada, together with the con-
ditions to be attached to the Saskatchewan licence, were sufficient to protect the
interests of the Federal Government. He issued a licence for dam construction
to the Saskatchewan Water Corporation pursuant to the International River
Improvements Act. 16
The Canadian Wildlife Federation (C.W.F) had on several occasions
requested that the Minister conduct an assessment and review under the
E.A.R.P. Guidelines Order before approving the licence application. The E.I.A.
prepared in Saskatchewan did not contain an assessment and review of the envi-
ronmental impact of the project in North Dakota or in Manitoba, nor was one
prepared in Manitoba with respect to the environmental impact there. The fed-
eral Minister nevertheless did not heed the request of C.W.F. for a more com-
prehensive review. In its subsequent application to the Court, C.W.F. sought: (i)
an order for certiorari, quashing and setting aside the licence issued by the Min-
ister under the International River Improvements Act; and (ii) an order for man-
damus requiring the Minister to comply with the E.A.R.P. Guidelines Order, to
subject the proposed project to an initial environmental screening to assess
potentially adverse environmental effects. According to the Guidelines, wher-
ever a proposal may cause significant adverse environmental effects, it must be
referred to the Minister for public review by an Environmental Assessment
Panel.
16R.S.C. 1985, c. 1-20, s. 4.
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B. The Decisions
The Court held that the Guidelines Order was an enactment or Regulation
as defined in s. 2 of the Inteipretation Act, 7 and as such could create rights
enforceable by way of mandamus.”8 In considering whether the Minister was
required to comply with the provisions of the Guidelines Order, the Court found
that the project was a “proposal” that would “have an environmental impact
upon a number of areas of federal responsibility, namely, international relations
[by virtue of], the International Boundary Waters Treaty Act, 9… migratory birds
(by virtue of the Migratory Birds Convention Act),2″…
inter-provincial affairs
and fisheries.”‘” In addition, the project would have an environmental effect on
“4,000 acres of land ‘owned’ or at the very least held in trust and administered,
by the Federal Government.”22
Compliance with the E.A.R.P. Guidelines Order was held to be a condition
precedent to the granting of a licence by the Minister under the International
River Improvements Act. The Minister’s failure to comply with the Guidelines
constituted an excess of his jurisdiction entitling the applicant to an order of cer-
tiorari quashing the licence.
The Court further held that despite the apparently discretionary language
of the Guidelines, the Minister had breached a duty by not complying with the
provisions of the Guidelines Order. The applicant was therefore also entitled to
an order of mandamus compelling the Minister to carry out an appropriate envi-
ronmental assessment, as required by the Guidelines.
The Federal Court of Appeal upheld the decision of Cullen J.’ Following
these proceedings, the Minister ordered that a draft Initial Environmental Eval-
uation (IEE) be prepared, to be followed by a public consultation process prior
to the preparation of the final IEE in August 1989. Without appointing a public
review panel under the provisions of the Guidelines Order, the Minister granted
a second licence for the projects on August 31, 1989. His decision was based
on advice from his officials that any significant adverse environmental effects
could be almost entirely mitigated. The Minister’s decision triggered a further
round of litigation, with two more applications for certiorari and mandamus
being launched. Once again the Trial Division found the decision of the Minister
not to appoint a panel review unlawful, and issued an order of mandamus
17R.S.C. 1985, c. 1-21.
18Rafferty Alameda No. 1, supra, note 9 at 322.
19R.S.C. 1985, c. 1-17.
20R.S.C. 1985, c. M-7.
21Rafferty Alameda No. 1, supra, note 9 at 323.
22lbid. at 325.
23Rafferty Alameda No. 2, supra, note 9.
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requiring the Minister to comply with the provisions of the E.A.R.P. Guidelines
Order by appointing a panel to review the project. The Court also ordered cer-
tiorari to quash the second licence unless a panel was appointed within a spec-
ified time.24
This decision was appealed on the grounds that the order of certiorari
should have quashed the second licence absolutely as long as a review panel had
not been appointed and its report had not been considered by the Minister prior
to the issuance of the licence. The Saskatchewan Water Corporation
cross-appealed.
The Federal Court of Appeal, in a decision issued December 21, 1990,
once again upheld the decision of the trial judge and dismissed both the appeal
and cross-appeal?5 The Court confirmed that “a panel review must take place
unless potentially adverse environmental effects that may be caused by the pro-
posal are found to be insignificant.”26
Construction of the Rafferty dam had continued virtually unabated even as
court proceedings were being undertaken from 1989 to 1990. The dam was vir-
tually completed by October 1990 when the panel appointed by the Minister in
compliance with the Court’s order resigned in protest at the continuing
construction.
The federal government applied to the Saskatchewan Court of Queen’s
Bench in November 1990, for an injunction to stop Saskatchewan from pro-
ceeding with construction until public hearings were completed. The Court
rejected federal arguments that continuing construction of the project could
cause irreparable harm to the environment, and refused to issue a stop work
order. Chief Justice Donald MacPherson referred to the federal E.A.R.P. as
“badly flawed,” and severely criticised the federal government for its procedural
and legislative handling of the entire matter. 7
At the same time, an application for an injunction to halt construction of
the project pending completion of the review was brought by two local ranchers
concerned over the potential loss of grazing land for their cattle in the vicinity
of the proposed Alameda reservoir. The application for injunction was rejected
by the Federal Court Trial Division, but in his reasons, Muldoon J. affirmed the
24See Canadian Wildlife Federation Inc. v. Canada (Minister of Environment) (1989), [1990] 31
F.T.R. 1, Muldoon J. (T.D.) [hereinafter Rafferty Alameda No. 3]. The decision was rendered
December 28, 1989.
ported] [hereinafter Rafferty No. 4].
25Tetzlaff v. Canada (Min. of Environment) (21 December 1990), T-2729-90 (F.C.A.) [unre-
26Ibid. at 18.
27A.G. Canada v. Saskatchewan Water Corp. (15 November 1990), QB-4277/90 (Sask. Q.B.),
MacPherson CJ. [unreported].
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Minister’s obligation to appoint a new panel.28 The Court would not intervene
to halt construction as long as panel hearings were taking place, but failure to
appoint a new panel could lead to the issuance of an injunction to stop the pro-
ject from proceeding further. In the words of the Court, “no panel –
no licence
no construction.”29 Three days before Muldoon J. rendered his decision on
–
February 8, 1991, the Minister had advised the Court that a new panel would
be appointed.
In addition, the Saskatchewan Water Corporation and the Souris Basin
Development Corporation recently launched two suits in the Saskatchewan
courts claiming damages against the federal government in excess of $600
million.
IV. The Oldman River case”
Only a few months after the initial decision in Rafferty Alameda, the Fed-
eral Court was again asked to compel Ministers of the federal government to
comply with the E.A.R.P. Guidelines Order.
The Oldman River case involved a proposal to construct a dam on the Old-
man River in Southern Alberta to ensure a secure supply of water within the
South Saskatchewan River Basin. The decision to proceed with construction
was reached after several years of planning by the Alberta government, which
included numerous studies and reviews by various provincial committees, with
input in some cases from federal officials.
In 1986 the Alberta Department of the Environment applied for and sub-
sequently obtained approval from the federal Minister of Transport for the dam
site and plan pursuant to s. 5 of the Navigable Waters Protection Act.3 No initial
environmental assessment or screening was undertaken, and the application was
not referred to the Minister of the Environment for review. Although the South-
ern Alberta Environmental Group had requested that the Minister of Fisheries
and Oceans comply with the Guidelines Order, the Minister replied that envi-
ronmental issues were being addressed by the Province, and refused to
intervene.
The Friends of the Oldman River Society then requested that the Minister
of the Environment subject the project to review under the Guidelines Order.
9 [unreported].
28See Tetzlaff v. Canada (Minister of Environment) (8 February 1991), T-2230-89 (F.C.T.D.) at
291bid.
3 0Friends of the Oldman River Society v. Canada (Min. of Transport and Min. of Fisheries and
Oceans) (1989), [1990] 1 F.C. 251, 30 F.T.R. 108 (T.D.) [hereinafter Oldman River No. 1, cited
to F.C.], rev’d [1990] 2 F.C. 18, 68 D.L.R. (4th) 375 [hereinafter Oldman River No. 2, cited to
D.L.R.].
3 1R.S.C. 1985, c. N-22 [hereinafter Navigable Waters Protection Act].
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Once again the request was refused by the Minister, who believed that any
potential environmental problems were being adequately mitigated by those
responsible for the project, rendering a separate federal assessment unnecessary.
The Minister also cited long-standing administrative arrangements with the
province, governing the management of joint concerns such as environmental
assessment and fisheries.
Many of the issues first raised in Rafferty Alameda were reconsidered by
the Trial Division in Oldman River. In the Oldman case, however, Associate
Chief Justice Jerome remained unconvinced of the applicability of the Guide-
lines Order in the circumstances and dismissed the application.”2
The Federal Court of Appeal allowed the appeal, and granted an order of
certiorari quashing the approval of the licence by the Minister of Transport
under the Navigable Waters Protection Act. In addition, orders of mandamus
were issued directing both the Ministers of Transport and of Fisheries and
Oceans to comply with the E.A.R.P. Guidelines Order.33 The reasoning of the
Court of Appeal in Oldman River was similar to that of the same court in Raf-
ferty Alameda;’ however, some points of distinction should be noted. The Court
specifically rejected the notion that the Guidelines Order does not apply to cases
where specialized statutory provisions require consideration of criteria not
directly related to environmental concerns. In reaffirming the position taken by
the Court in Rafferty Alameda, Stone J. stated:
By virtue of s. 6 of the Department of the Environment Act, any guidelines estab-
lished are to be used “by departments … in the exercise of their powers and the
carrying out of their duties and functions” in furtherance of those duties and func-
tions of the Minister of the Environment (Canada) himself which are “related to
environmental quality” … the Guidelines Order was intended to bind the Minister
in the performance of his duties and functions. It created a duty which is super-
added to the exercise of any other statutory power residing in him. The source of
the Minister’s jurisdiction and responsibility to address environmental questions in
areas of federal responsibility springs not from the statutory law but from the
Guidelines Order itself. The Minister had a positive obligation to comply with it.35
The Court found that the word “proposal,” as it is used in the Guidelines
Order, 6 goes beyond its ordinary meaning, which would signify something in
the nature of an application. A Minister might become aware of the existence
of an “initiative, undertaking or activity in some other way than having received
an application for approval of a proposal that may have an environmental effect
32O1dman River No. 1, supra, note 30 at 274.
3301dman River No. 2, supra, note 30.
34Supra, note 9.
35Oldman River No. 2, supra, note 30 at 392-93.
36″Proposal” is defined in s. 2 of the Guidelines Order, as “any initiative, undertaking or activity
for which the Government of Canada has a decision making responsibility.”
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on an area of federal responsibility for which he was the decision making
authority.”’37
In this case the Minister of Fisheries and Oceans was required by statute
to intervene to protect fisheries resources. As this was an area of federal respon-
sibility under the Fisheries Act,38 the Minister became the decision making
authority with respect to determining what action would be taken. Having notice
of the “proposal,” he became obliged to comply with the Guidelines Order.39
The effect of Rafferty Alameda and Oldman River on the federal environ-
mental assessment process has been profound. The cases reinforced the desire
of the federal Minister of the Environment to ensure swift passage of the new
Canadian Environmental Assessment Act. The following section will briefly
examine the proposed legislative scheme, as well as some of the underlying fac-
tors which led to its introduction.
V. The Canadian Environmental Assessment Act
At least two years prior to the initial decision in Rafferty Alameda, the fed-
eral government initiated a series of studies and public consultation sessions
aimed at reforming the E.A.R.P. process at both the structural and procedural
levels. The process had long been criticised on a number of fronts, and the gov-
ernment at last appeared to be responding to an increasingly vocal minority call-
ing for substantive reform.
The criticism most often levelled at the existing federal process is that it
is based upon a principle of self-assessment. The process is triggered only when
an initiating department with decision making responsibility determines that the
potential impact of a proposal warrants referring the matter to the Minister of
the Environment for public review. It must be remembered that in many cases
the initiating department is also the proponent proposing to undertake its own
project. It is only in recent years that the federal Access to Information Act4 has
helped the public obtain information concerning both the proposal and, more
importantly, the decision of the initiating department with respect to the initial
screening or assessment, thus providing a potential check on the dangers inher-
ent in self-assessment.
A second perceived weakness concerned the lack of authority of the review
panel, which under the Guidelines Order performs an advisory function only.
Decision making powers were reserved for the Minister of the Environment and
3 7Oldman River No. 2, supra, note 30 at 396.
38R.S.C. 1985, c. F-14.
3901dman River No. 2, supra, note 30 at 396.
4 0R.S.C. 1985, c. A-1.
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the Minister of the initiating department, significantly increasing the potential
for politicizing the process.
Critics have also pointed to the absence of a quasi-judicial forum in which
to rigorously examine a proposal using adversarial techniques for testing the
truth of conflicting evidence.! 1 This lack of an independent structure raises sig-
nificant concerns where the process lacks a statutory foundation, and is there-
fore less insulated from the possibility of political interference. It is true that a
quasi-judicial process might also be subject to political pressures. Even the deci-
sions of a formally independent, quasi-judicial tribunal may often be varied by
the government by way of appeal or petition to a Minister or Cabinet.42 Never-
theless, the credibility of quasi-judicial decision making processes is maintained
by the fact that the public hearing or review is conducted in an atmosphere that
is generally perceived by those taking part to be fair, just, and devoid of political
interference. This was not the case with E.A.R.P. hearings under the procedures
outlined in the Guidelines Order.
In January 1987 the Federal Environmental Assessment Review Office
(F.E.A.R.O.) announced the establishment of a study group to be chaired by the
Honourable Allison M. Walsh, Q.C., a retired justice of the Federal Court. The
study group was to review the existing procedures followed by FE.A.R.O. in
conducting public reviews, and to determine whether a more structured adver-
sarial hearing format was required.
The study group released its report in January of 1988,4″ and concluded
that the informal hearing procedures then in place should be continued. The
report recommended that panels be given subpoena powers, but not the power
to swear in participants. The report also recommended, however, that principles
of procedural fairness guide the hearing process to a greater extent. Panels
should be composed of panelists who were independent of both the government
4’The process of the Ontario Environmental Assessment Board, for example, is quasi-judicial
in nature. As a statutory administrative tribunal with decision making powers, the Board is gov-
emed by the provisions of the Statutory Powers Procedure Act, R.S.O. 1980, c. 484, which pro-
vides for the cross-examination of witnesses (s. 10(c)), as well as other adversarial procedures.
Some commentators have expressed the view that an adversarial hearing format allows for a more
rigourous testing of scientific evidence and, based upon my own experience, their view is well-
founded. See, for example, S.L. Smith, “Science in the Courtroom: The Value of an Adversarial
System” (April/May 1988) 15 Alternatives 18, and M.I. Jeffery, Q.C., “Science and the Tribunal:
Dealing with Scientific Evidence in the Adversarial Arena” (April/May 1988) 15 Alternatives 24.
4 2See, e.g., the Ontario Environmental Assessment Act, R.S.O. 1980, c. 140, s. 23; and the Con-
solidated Hearings Act, 1981, S.O. 1981, c. 20, s. 13.
43Study Group on Environmental Assessment Hearing Procedures, Public Review: Neither Judi-
cial nor Political, but an Essential Forum for the Future of the Environment-A Report Concern-
ing the Reform of Public Hearing Procedures for Federal Environmental Assessment Reviews
(Ottawa: Supply & Services, January 1988) (Chair: A.M. Walsh).
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and the proponent, unbiased with respect to the particular project under review,
and yet possess special expertise in the matters at issue.
In September 1987, the federal Minister of the Environment released a
Green Paper’ calling for the reform of the E.A.R.P. after a period of extensive
discussion and consultation. The Green Paper canvassed a variety of options for
improving the initial assessment phase, and alluded to the possibility of some
form of environmental assessment legislation in lieu of guidelines issued under
the authority of an Order in Council. The discussion paper also suggested
improvements to the public review phase, and attempted to address the conten-
tious issue of self-assessment. In addition, it suggested that measures be devel-
oped to prevent duplication of environmental hearings by more than one regu-
latory agency with respect to a particular proposal.
Although the Rafferty Alameda and Oldman River decisions did not in
themselves provide the impetus for reform, they did provide the basis for push-
ing the government’s reform package to the top of its political agenda. With the
courts having decided that the E.A.R.P. Guidelines Order was enforceable as a
regulation to be applied with respect to areas of federal responsibility, there
seemed little point in delaying introduction of the long-awaited legislation. The
new Canadian Environmental Assessment Act was tabled in the House of Com-
mons on June 18, 1990.
In introducing the new Bill, the then Minister of the Environment, the
Honourable Robert de Cotret, stated:
I want to emphasize that the new Act will go much further than the original Guide-
lines. In fact, this legislation and Reform Package will result in an environmental
assessment process which is more powerful in its impact on decision making than
any other environmental assessment in the world.45
Not surprisingly, the Minister’s enthusiastic endorsement of the proposed
C.E.A.A. is not shared by all, particularly since many of the perceived areas of
deficiency remain. The principal elements of the proposed legislative scheme
are described in the following paragraphs.
A. Provisions of the new Canadian Environmental Assessment Act
Federal authorities subject to the Act include federal Ministers, agencies,
departments and Crown corporations.” An initial screening and report concem-
“Environment Canada, F.E.A.R.O., Reforming Federal Environmental Assessment -A Discus-
sion Paper (Ottawa: Supply & Services, 1987) [hereinafter Green Paper].
45See “Statement of the Honourable Robert de Cotret, Minister of the Environment, Introducing
the Canadian Environmental Assessment Act” (June 18, 1990) at 6 [hereinafter Minister’s
Statement].
46C.EAA., s. 2.
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ing possible environmental effects are to be carried out with respect to proposed
projects where: the federal authority is the proponent; the authority provides
financial assistance; the project is to be carried out on federal lands; or in cir-
cumstances where a federal permit, licence or approval is required.’
The Act provides for the development by Cabinet of exclusionary and
mandatory study lists for different types of projects. The exclusionary list will
list projects which have been determined by Cabinet to have negligible environ-
mental effects, which should be excluded for reasons of national security or
which entail minimal federal involvement. Mandatory study lists will include all
projects deemed by Cabinet to have significant adverse environmental effects.48
The Federal Environmental Assessment Review Office is to be replaced by
a new agency –
the Canadian Environmental Assessment Agency. Although
separate from Environment Canada, the Minister of the Environment will con-
tinue to be responsible for the agency, which will perform essentially the same
advisory, as opposed to decision-making, role as that of its predecessor.49
Unless exempted by virtue of being located on the exclusionary list, the
responsible authority, after completing a screening report, may proceed with the
project if in its opinion:
(i) the project is not likely to cause significant adverse environmental effects, or
(ii) any such effects can be mitigated.
Where the project is to be found on the mandatory study list, the respon-
sible authority must conduct a mandatory study and submit a mandatory study
report to the Agency, or refer the project to the Minister who will arrange for
mediation or review by a panel.5′
Where in the opinion of the responsible authority the project is likely to
cause significant adverse environmental effects that may not be mitigable, or
where public concern warrants it, the project must be referred to the Minister
for mediation or review by a panel. The responsible authority may not in these
circumstances proceed with the project while the environmental assessment is
being conducted. 2
The new legislation gives the Minister of the Environment the sole discre-
tion to determine the need for panel review, and provides him with the option
47Ibid., s. 5. It is to be noted here that s. 5 narrows considerably the application of the review
process from the broad requirement of an environmental effect on an area “federal responsibility”
under s. 6(b) of the Guidelines Order.
41Ibid., s. 55(l)(b)-(e).
491bd., ss 57-59.
5Ibid., s. 16.
51Ibid.
52Ibid.
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of referring the project to mediation. In addition, where the Minister is of the
opinion that the project is likely to cause significant environmental effects that
may not be mitigable, or that public concern warrants it, he may after consulting
the responsible authority refer the project to mediation or a review panel.53 The
responsible authority retains the ultimate decision making power with respect to
the project following the submission of the report by the mediator or review
panel.’
Environmental assessments are to take into account the environmental
effects of a project, including cumulative environmental impacts, comments
concerning those effects received from the public and mitigation measures that
are technically and economically feasible. Every mandatory study, mediation or
panel review must also include a consideration of the purpose of the project, and
of alternative means of carrying it out that are technically and economically fea-
sible, as well as the environmental effects of any such alternative means. In
addition, studies must examine the need for, and the requirements of any
follow-up program, as well as the capacity for short and long-term regeneration
of renewable resources. 55
A public registry is to be established for panel reports, supporting docu-
ments, and other information relative to the assessment, other than restricted
information protected by the Access to Information Act.56
The Act also provides for the establishment of joint review panels in cir-
cumstances where jurisdiction with respect to a project is jointly shared with a
province, foreign government or international organization of states.”
The extent to which the proposed legislation represents an improvement
over the existing federal process has been the subject of considerable debate
during past months. The following section will canvass some of the strengths
and weaknesses identified to date with respect to the proposed legislation.
VI. Strengths and Weaknesses of the New C.E.A.A.
The proposed C.E.A.A. is disappointing in several respects primarily
because it falls to address many of the more insidious deficiencies inherent in
the existing environmental assessment process.
As presently drafted, the Act does not remove conflict of interest concerns,
both real and perceived, associated with the underlying principle of self-
assessment. The ultimate decision making power continues to rest with the
531bid., ss 21, 24 & 25.
541bid., s. 36.
5 5Ibid., s. 11.
561bid., s. 51.
571bid., s. 37.
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1085
responsible authority, which is often the proponent of the project itself. The
credibility of the government’s efforts to improve the existing environmental
assessment process would be enhanced if the ultimate decision making power
with respect to the environmental assessment of projects were given to an inde-
pendent tribunal or, failing this, to the Minister of the Environment.” The
intense debate in Cabinet leading up to the introduction of the new C.E.A.A. in
the House of Commons indicates that other Ministers were reluctant to allow
the Minister of the Environment or an independent tribunal to place environ-
mental constraints upon projects or policy initiatives considered to be within
their own specific areas of jurisdiction. This “turf battle” has once again left the
federal process open to serious and justifiable criticism. 9
The same protectionist sentiment is all the more evident in concerns voiced
by many provincial officials, who worry about federal encroachment upon spe-
cific areas of provincial jurisdiction, such as the ownership and control of pro-
vincial natural resources.’ The Act has attempted to overcome some of these
objections by including provisions for joint review panels in areas where juris-
diction overlaps with that of provinces or foreign states. Nevertheless, the fed-
eral Minister of the Environment retains the power to appoint the chairperson,
or a co-chairperson, and one or more members of the panel. The federal Min-
ister also retains the power to require that the public be given an opportunity to
participate in the assessment by the panel, and may fix or approve its terms of
reference.
Although the Act provides for mediation in prescribed circumstances, it
does not appear to contemplate mediation in the event of a disagreement
between a province and the federal government. Further, the Act does not oblige
the responsible federal authority to accept the findings or recommendations set
out in the report of a joint review panel. Section 38 of the Act stipulates only
that upon completion of the assessment, the report of the panel must be submit-
ted to the Minister and be published. The responsible federal authority appears
to retain the decision making power with respect to the project, even in cases
where it has been subject to a joint panel review.
5 tThe government considered it to be a significant improvement upon the existing E.A.R.P. to
empower the Minister of the Environment with the discretion to establish a panel, appoint its mem-
bership and provide its terms of reference. The government failed, however, to seize the opportu-
nity to depoliticize the process by establishing an independent tribunal with decision making
authority.
59See, e.g., the report of submissions to the House of Commons Special Committee examining
the draft legislation by the Canadian Bar Association and the Environmental Assessment Caucus:
“Lawyers’ Groups Urge Changes to Proposed Assessment Process” (1990) 1 Envt. Pol. & L. 121.
6See R. Ray, “Provinces, Lawyers See Disputes over Jurisdiction” (October 1990) 1 Envt. Pol.
& L. 85.
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These elements of federal control over matters in which provinces have a
clear interest, such as natural resources, will undoubtedly contribute to a further
polarization of the constitutional debate now raging across the country. This
danger is evident in the continuing controversy over Rafferty Alameda, as the
province of Saskatchewan continues to assert its right to make its own decisions
free of federal encroachment through the environmental assessment process.
The thrust of the recent decisions of the Federal Court will do little to quell the
mistrust on the part of the provinces with respect to what some perceive as an
unwarranted incursion into provincial affairs.6
In addition, many of the most important aspects of the process have not yet
been spelled out in the Act, but remain to be addressed in future regulations.
Essential elements such as which projects or classes of projects will be included
on the mandatory study or exclusionary lists; the setting of procedures and rel-
evant time periods relating to the environmental assessment process; and provi-
sions concerning the conduct of assessments by review panels, all remain to be
prescribed by regulations.6′ Although provision for public participation is con-
tained in the proposed legislation, no participant funding program has been
included, and might well succumb to political and/or budgetary pressures.63 In
addition, while subpoena powers have been given to review panels to compel
witnesses to attend and give evidence, no mention is made of the right to coun-
sel or the right to cross-examine witnesses.’ The extent to which the public is
entitled to participate in the process in any meaningful way is thus left ambig-
uous.
65
Of particular concern is the apparently more restrictive scope of the
C.E.AA. Its application is limited to “projects” which, in turn, are defined in
terms of physical works or physical activities.66 In contrast, under the existing
Guidelines Order the E.A.R.P. applies to a “proposal,” which is defined to
include “any initiative, undertaking or activity for which the Government of
Canada has a decision making responsibility.”’67 It is therefore doubtful that the
61The James Bay II project slated for commencement of construction in 1992 will likely provide
the litmus test with respect to federal/provincial cooperation in the environmental arena: see
“Federal-Provincial Tangles over a Shared Environment” The [Toronto] Globe and Mail (22
November 1990) A18.
62These shortcomings were acknowledged by Raymond Robinson, Executive Chairman of
F.E.A.R.O., who stated at a pre-introduction media briefing on the proposed C.EA.A.: “The scope
of this Act cannot be determined by what you have before you.” Cited in K. Pole, “Proposal
Labelled World’s ‘Most Comprehensive”‘ (1990) 1 Envt. Pol. & L. 41.
6 3A participant funding program had been announced by the Minister as part of his earlier reform
package and was referred to in the Minister’s Statement, supra, note 45 at 5.
64See supra, notes 41-42 and accompanying discussion.
65C.EAA., supra, note 1, s. 32.
61bid., s. 2.
67Guidelines Order, s. 2.
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legislation in its present form would support the assessment of government pol-
icy initiatives, if those initiatives did not include in their implementation phase
a physical work or physical activity. Many potentially important government
policies impacting upon millions of Canadians will not be subject to assessment
under the proposed Act.
The exclusion of policy review from the provisions of the C.E.A.A. is more
difficult to understand in light of the announcement by the Minister of the Envi-
ronment on March 19, 1991 that the Environment Committee of the House of
Commons will review all major government policies.68 By confining policy
review to the political arena, the government has once again stepped back from
allowing the affected public to examine the environmental effects of govern-
ment policy in a non-partisan arena, as would more likely be the case if review
took place under a legislative scheme.
On the positive side, the proposed legislation contains provisions for the
design and implementation of follow-up monitoring programs not available
under the Guidelines.69 The new legislation also provides for mediation as an
option to panel reviews in cases where the potential for reaching consensus
appears promising;”0 and specifically provides for the assessment of transborder
environmental effects.7 l
Conclusion
Overall, the environmental assessment process envisaged by the new
C.E.A.A. remains susceptible to political pressure and interference. The federal
government has squandered a prime opportunity to remedy a number of the sys-
temic deficiencies present in the existing E.A.R.P. process.
The situation of Rafferty Alameda illustrates the danger of not specifically
providing in the legislation that construction must stop while assessment is
ongoing, if the process of environmental review is to be credible and achieve
its purpose. Madam Justice Reed of the Federal Court (Trial Division) in the
case of Naskapi-Montagnais Innu Association v. Minister of National Defence72
found that there was no mandatory obligation in the Guidelines that a project
be halted until a panel review was completed and its report submitted.
Under the existing Guidelines initiating departments and Ministers are able
to ignore whatever recommendations a Panel might make. They, of course, do
so at their peril insofar as public opinion is concerned. Under the scheme of the
68See W. Walker, “Environmental Review Boosted” Toronto Star (20 March 1991) A. 18.
69C.EAA., s. 35.
70Ibid., s. 25(a).
71Ibid., ss 43 & 44.
72 [1990] 3 F.C. 381.
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Guidelines it is the watchful eye of public opinion which is to operate as the lev-
erage to ensure that environmentally responsible decisions are taken.73
As the Rafferty Alameda and Oldman River decisions amply illustrate, the
task of ensuring that the government follows its own Guidelines fell to the
courts when it continued to ignore the watchful eye of public opinion.
Instead of capitalizing upon the opportunity to implement a federal envi-
ronmental assessment process capable of meeting the expectations of an
increasingly sceptical public, the government has provided draft legislation that
will neither silence its critics, nor avoid the protracted litigation of the recent
past.
Indeed, for many, the watchful eye of public opinion may not be sufficient
to ensure environmentally sound and responsible decision making by the federal
government.
731bid. at 22.
