An Opportunity Missed – Amending the Impact Assessment Act

The Government of Canada has released its Budget Implementation Act, 202, No. 1, which includes a suite of proposed amendments to the Impact Assessment Act (the Act), the legislation that establishes Canada’s federal impact assessment (IA) process. 

As expected, the proposed amendments focus mainly on clarifying the applicability of the Act to projects and effects within federal jurisdiction, particularly at decision-making stages.  These changes are consistent with what the Government has been signaling since the Supreme Court of Canada reference decision came out in the Fall.

There are also a few housekeeping amendments, relatively minor changes that clarify roles and the scope of responsibilities at various steps in the process.  For example, the amendments would clarify that the Governor in Council can indeed consider mitigation measures when deciding whether adverse effects that may be significant are justified in the public interest.  These amendments appear to reflect lessons learned from judicial reviews, completed assessments, and other modes of feedback.

Others will dissect these specific changes.  In keeping with my own work of late, I am keenly interested in whether and how the amendments may contribute to “streamlining” the federal IA process, and that is what I focus on here.  And I was pleased to see proposed amendments that offer some promise of improving process efficiency and timeliness.

Making the Detailed Project Description Discretionary

Under the existing Act, a proponent must, in the Planning Phase, first submit an Initial Project Description, which the Impact Assessment Agency of Canada (IAAC) makes available for public comment.  IAAC then prepares a summary of issues raised during the consultation, to which the proponent must respond, explaining how they intend to address those issues.  The proponent must also then submit a Detailed Project Description.  The information required to be submitted in the Project Descriptions is specified by regulation.  It is largely on the basis of that information that IAAC decides whether an IA is required for the project.  However, this step-wise process is unnecessarily redundant – the information required in the Detailed Project Description is highly duplicative of what was already provided in the Initial Project Description.  Moreover, both Project Descriptions essentially constitute mini assessments of the project, describing its potential effects – all information that will by necessity be repeated in an Impact Statement, if an IA is deemed to be required.

The proposed amendments would enable IAAC to require a proponent to provide a Detailed Project Description only if the additional detail is deemed necessary to make the decision as to whether an IA is required.  This discretionary decision could save considerable time and resources for both the proponent, who prepares the DPD, and IAAC and supporting federal authorities, who must review it.  

Greater Reliance on Existing Mechanisms for Review

Other proposed amendments reflect the Government’s drive to apply the principle of “one project, one review.”  In the past, this principle was more commonly articulated as “one project, one assessment,” a notion that was broadly accepted, if not always successfully or consistently implemented.  Expanding this principle beyond assessment, to consider other mechanisms for review, such as permitting, is something I have long advocated, and I am pleased to see it manifest in these amendments.  IA is not the only tool in the toolbox for addressing potential adverse effects!

The proposed amendments would allow IAAC to decide that a federal IA is NOT required if there is a “means other than an impact assessment” that would permit a jurisdiction – which includes other federal authorities, provinces, co-management bodies, and Indigenous governing bodies, among others – to address the adverse federal effects that may be caused by the project.  This means, for example, that IAAC could take into account and rely on the robust regulatory framework that exists for certain sectors, such as transportation.

Similar amendments would allow the Minister to consider means other than IA when deciding whether to designate a project by order.

These amendments take a broader look at the whole legislative and regulatory framework that exists in Canada and offers a path to greater intra- and inter-jurisdictional collaboration, repurposing the old notion of the ‘best-placed lead authority’ to consider the best-suited process for review.  This is a good step.  

A Missed Opportunity

Even with these promising changes, however, the amendments fall short of what is needed.  In my view, the Government of Canada missed an opportunity to make key amendments to the Act that would facilitate the urgently needed transition to a more sustainable economy and society.

As I have previously written, today’s IA frameworks, born of well-founded intentions to foster sustainability and protect the natural and human environment, often hinder the advancement of projects that are critical to a sustainable future.

Last week, I chaired a session on streamlining IA at the annual conference of the International Association for Impact Assessment in Dublin, Ireland.  In my remarks, I noted that the most recent United Nations Climate Change Conference of the Parties (COP28) ended with an agreement to accelerate the shift away from fossil fuels to renewable energy and improved energy efficiency.  Achieving this rapid transition will require a substantial amount of critical minerals and investment in critical infrastructure.  For example, for governments to meet their electric vehicle adoption commitments, it has been estimated[1] that as many as 388 new mines will be needed by 2030, including mines for lithium, nickel, cobalt, and other minerals.  While the specific number of new mines needed may be up for debate, the challenges it poses are not.

It can take 10 years or more to get a new mine approved – that puts timely achievement of the necessary energy transition into jeopardy.  The time it takes to assess and approve new critical minerals mining projects and other clean transition projects, like renewable energy projects and clean transportation infrastructure, must be shortened if we are to secure the materials and develop the infrastructure necessary for urgent climate action.

While the proposed amendments to the Impact Assessment Act offer some promise of efficiency, and Budget 2024 included a number of other initiatives for “Getting Major Projects Done,” one of the most effective mechanisms to expedite clean growth projects has been overlooked.  

The Act already contemplates non-application of the IA process when “the carrying out of the project [on federal lands] without delay is in the interest of preventing damage to property or the environment or is in the interest of public health or safety.”  Similar provisions are needed that allow the Governor in Council to establish an expedited process for clean transition projects of national importance.  The carrying out without delay of projects that enable rapid climate action is needed to mitigate the worst effects of climate change on people and the environment.  

Empowering the GIC to establish a truly streamlined process, one that focuses on key issues and leverages the full breadth and depth of Canadian expertise and experience to manage well-understood effects, working collaboratively with other jurisdictions and governing bodies, could cut through many of the bureaucratic and systemic barriers that stand in the way of timely project advancement.  

There is still time to amend the Budget Implementation Act to incorporate such provisions and I encourage the Government of Canada to do so.

I should, in closing, address the most commonly expressed concern about streamlining – that it will come at the expense of consultation with and participation of Indigenous peoples and the public.  To be clear, as an IA practitioner, it is my view that the challenge of how to expedite clean transition projects without compromising the protection of local communities, including Indigenous peoples, and the environment on which they and we rely is one of the most pragmatic and important we now face.  We must work together to find ways to expeditiously and responsibly address the climate crisis that threatens us all.

[1] https://www.fraserinstitute.org/studies/can-metal-mining-match-the-speed-of-the-planned-electric-vehicle-transition

2024
05/01
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When Environmental Responsibility Gets in the Way of … Environmental Responsibility

Impact assessment or IA – also known as and including environmental assessment, environmental impact assessment, social impact assessment, health impact assessment, and a host of other discipline-specific variations along those lines – involves the critical evaluation of the consequences of past, present, and future development. Most commonly, IA is applied to specific projects to assist decision-makers and the public to understand potential environmental, social, cultural, health, and economic impacts – both positive and negative – and to inform the development of measures to mitigate adverse effects and enhance beneficial outcomes. The scope of IA has expanded from its original focus on the biophysical environment to encompass a broad range of issues reflective of today’s society, including gender and identity, Indigenous rights and interests, and inter-generational health and well-being, among other considerations. As such, IA, when done properly and well, is recognized as a vital tool in promoting sustainable development, and legislative frameworks have evolved to establish robust procedures for IA in many jurisdictions, including Canada.

Unfortunately – ironically, even – today’s IA frameworks, born of well-founded intentions to foster sustainability and protect the natural and human environment, often hinder the advancement of projects that are critical to a sustainable future.

Earlier this week, we saw yet another example of the challenge facing Canada and other jurisdictions trying to advance clean energy transition projects: how do we thread the needle, balancing timely project development with legitimate objectives of environmental and community protection at the local level?

https://www.reuters.com/markets/commodities/glencore-may-look-elsewhere-recycling-hub-after-italy-rejects-fast-track-2023-10-01/

In this example, a regional-level government in Italy chose to require a full impact assessment instead of an available fast-track approval process for a proposed electric car battery recycling facility pilot project at an existing facility, prompting the proponent to consider looking elsewhere for more favourable conditions for its project.  This outcome illustrates how even a well-intentioned IA framework can undermine progress towards climate action goals, while also impacting global competitiveness.

When an impact assessment process takes many years to complete, like it does here in Canada, it creates a real barrier to getting so-called “green” projects built, delaying the transition to a more sustainable economy and exacerbating the climate crisis we face. In very practical terms, there is a procedural conflict between what needs to be done to address global climate change – including rapid development and deployment of clean energy-related projects – and what needs to be done to protect local ecosystems and communities from the effects of those projects. The latter, too often, is typically accomplished through a complex process that has proven to be unwieldy and time-consuming, undermining the achievement of the former. This conflict is costing us, in economic opportunity, competitiveness, security, and well-being, both now and, through delayed mitigation of the effects of climate change, in the future.

IA frameworks and other regulatory processes urgently need to be retooled to reconcile these two vital aspects of environmental responsibility. We need to develop and apply more timely and efficient ways to evaluate and implement green projects, drawing on our collective knowledge and experience in assessment – and especially management – of the environmental, social, cultural, health, and economic impacts of development.

There is a tremendous breadth and depth of practical experience in Canada and elsewhere in this regard. We need to leverage this expertise to develop trusted, efficient, and expedited decision-making processes that respect and achieve both our local and global environmental goals.

As I was writing this post, I was reminded of Janus, that ancient Roman mythological figure usually depicted with two faces. Janus is known as the god of change and transition, overseeing progress from one time to another, one state or condition to another. Surely there is a metaphor there: these two sides – faces, if you will – of environmental responsibility are part of the whole and both are essential for a successful transition to a clean energy future.

2023
10/05
CATEGORY
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The Horizon of Industry

"Canada: The Foundations of its Future"

“Canada: The Foundations of its Future”

In 1941, the House of Seagram – then a Canadian maker of whiskeys, and later the largest distiller of alcoholic beverages in the world – privately published Stephen Leacock’s “Canada: The Foundations of its Future,” a history of Canada’s growth and development to that time.

Samuel Bronfman, the founder of Distillers Corporation, which acquired Seagram in 1928, wrote the foreword to the book, explaining his rationale for publishing such a history when the country was at war. He was motivated by a desire to bolster public morale, but also – and this is the interesting part, from my perspective – by “a consciousness of the wider civic interests of industry.” He wrote:

“For Canadian business, it seems to us, is not merely availing itself of a privilege, but is also fulfilling a duty, when it lifts its eyes from the narrow confines of its ‘powers’ as described in its charters, to regard the wider panorama of that country to the history of which it contributes its record of achievement. The horizon of industry, surely, does not terminate at the boundary-line of its plants; it has a broader horizon, a farther view, and that view embraces the entire Dominion.”

One thing that struck me about this statement is its reference to ‘privilege’, the recognition of which seems to be widely lacking in modern society. Though regulatory frameworks may grant legal rights of access to natural resources, such access nevertheless remains, truly, a privilege and, with it, come attendant responsibilities to steward such resources. That the notion of privilege appears to have largely been forgotten may help explain the erosion of the stewardship ethic in recent decades.

Mr. Bronfman went on to say:

“There is no doubt but that the most important document among the records of any commercial enterprise is its balance-sheet. That document, of course, owes its importance not to the facts and figures it contains, but to the people, the human effort and striving, represented by its mathematical symbols. For a business is constituted, to paraphrase a well-known dictum, ‘of people, for people, and by people’. We feel that Appendix A to each and every business balance-sheet, an appendix unwritten yet undeniably there, is the general history of the Dominion, itself a projection in deeds of the personality of all its citizens. That, in fact, is the larger balance-sheet, without which all others are meaningless, purposeless, motion without progress!”

This excerpt captures eloquently the notion of human capital, the value inherent in the people who make up the company, the people it serves, and the people who have made it possible for the company to exist, indeed to thrive. Mr. Bronfman’s acknowledgement of the overarching importance of people, of the meaning and purpose lent to business by society, still stands, almost three-quarters of a century later, as an inspiring articulation of the basis for corporate responsibility.

As we increasingly understand today, the “horizon of industry” does indeed extend beyond the plant boundary, and, for many in our global economy, beyond even our national borders.

If we consider these two ideas together, however, the need for a “farther view” and the overarching importance of people, it follows that the horizon of industry must be broad not only in spatial reach, but in temporal terms as well. While understanding our history, as Mr. Bronfman advocated, is critical to recognizing and appreciating the privileges we enjoy, I would argue industry must also look to the future, to ensure the “larger balance-sheet” remains healthy for generations to come.  Given its great influence in, and the scale of its potential impact on, modern society, the horizon of industry must indeed be far-reaching in every sense.

 

Although this particular volume of Stephen Leacock’s has been on my bookshelf for many years, my attention was brought to the foreword in particular by Phyllis Lambert, Samuel Bronfman’s daughter, who wrote about it in the prologue to her own excellent book, Building Seagram, about the planning, design, construction, and ongoing stewardship of the Seagram Building in New York City.

2014
12/14
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The Washrooms are Equipped with Smoke Detectors: Corporate Responsibility Lessons from a Frequent Flyer

In this, the third in our series of Corporate Responsibility Lessons from a Frequent Flyer, we take a look at a more serious issue of corporate accountability.  For our first post in this series, Don’t Leave Your Baggage Unattended, click here.  For our second post in this series, Locate the Nearest Exit, click here.

 

If you’re a frequent flyer like me, you’ll know that a standard feature of the onboard safety briefing is that smoking is not permitted and the washrooms are equipped with smoke detectors.

IMG_4691The days of smoke-filled cabins on airplanes are, thankfully, a distant memory, but the urgency of the no-smoking warning remains, reminding would-be transgressors that even in the privacy of the washroom, illicit behaviour will be detected. Corporate actors would be similarly well warned that technology and social media are increasingly the detectors and disclosers of illicit behaviour, wherever it may occur.

In my view, this is a Good Thing; sunlight, as Justice Brandeis once opined, is the best disinfectant. Moreover, the boundaries are blurring between a corporation’s accountability and an individual’s responsibility for inappropriate behaviour.

As if we needed another example of this, we can point to the recent experience of Centerplate’s now-ex-CEO, Desmond Hague.

In late August, Mr. Hague was caught on video abusing a dog in an elevator. Here’s a link to that video [warning: some viewers may find this video disturbing].

Centerplate is a food services company catering to sports and other entertainment venues. It doesn’t matter that their business has nothing to do with animal welfare. The behaviour of its CEO was so morally offensive that the company would be tarred with the same brush if it did not demonstrate its intolerance. Faced with widespread outrage on social and mainstream media, the company expressed its concern, put Mr. Hague on probation, and required him to serve 1,000 hours of community service and make a donation to establish an animal welfare foundation. That wasn’t enough, however. Despite the CEO’s contrite apology, he was forced to resign when the scandal continued to grow.

Also in early September, a far more disturbing incident was caught on video, again by an elevator surveillance camera: football star Ray Rice assaulting his then fiancée, Janay Palmer. The public release of the video led the Baltimore Ravens football club to terminate Rice’s contract, and he was suspended indefinitely from the National Football League. In the weeks since, however, there have been many questions about who knew what about the incident and when, and much criticism about the adequacy and timeliness of the actions taken by the Ravens and the NFL, particularly since both organizations knew about the incident from a previously released video.

Both of these cases highlight the need for organizations to engage employees proactively regarding behavioural expectations both within and outside the workplace, to make clear the consequences of behaviour that doesn’t meet these expectations, and to have systems in place to ensure a timely and appropriate response when incidents occur.

Although we surely cannot mandate values, it is possible – and increasingly necessary – to foster a culture of responsibility that seeks in the best case to prevent inappropriate behaviour and in the worst case to ensure swift action when inappropriate behaviour comes to light.

Where there’s smoke, there’s likely fire.  Best not to wait for the smoke alarm to go off to figure out where the fire extinguisher is…

 

For more on the stories that prompted this post:

Click here for coverage in the Globe and Mail.

Click here for coverage in the New York Daily News.

2014
10/09
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Locate the Nearest Exit: Corporate Responsibility Lessons from a Frequent Flyer

This is the second in our lighthearted series of Corporate Responsibility Lessons from a Frequent Flyer.  For our first post in this series, Don’t Leave Your Baggage Unattended, click here.

The onboard pre-flight safety demonstration is all about what to do when things go wrong.  It explains the safety features of the aircraft, and how to use them properly.  It describes how to exit the aircraft in case of emergency.  It reviews the rules established to ensure passenger safety.  And it refers to the safety information card available to each passenger.  Finally, passengers are invited to share questions or concerns with the flight attendants.  The briefing includes mandatory elements standardized by the International Civil Aviation Organization, and has changed over time to incorporate new elements shown by experience to be necessary.

In these respects, the pre-flight safety demonstration is a model for organizational crisis management.  The briefing provides a clear framework for action by the stakeholder – the passenger, in this case – in the event of an emergency.  It engages the stakeholder directly, articulating their role in crisis response.  It identifies reference material and sources of additional information, if required.  And the briefing is customized to reflect specific risks – flights over water, for instance, warrant additional safety measures – and updated to clarify new or revised procedures.

To the extent passengers are paying attention, the pre-flight safety demonstration can minimize the likelihood of injury and maximize the likelihood of survival in a real emergency.  Similarly, the chances of surviving a corporate crisis, like any other, are greatly increased when the organization understands the risks, has plans and procedures in place to enable efficient and effective action if a crisis occurs, and maintains a state of readiness – through training, exercises, and upkeep – to increase the likelihood of desirable outcomes.

Effective crisis management is an important element of corporate responsibility because it enables the organization to anticipate and better manage potential impacts of a crisis with the aim of protecting the health and safety of employees and the public, the environment, and property, including public and private property and the assets of the organization.  The better able an organization is to respond to a crisis in a timely and credible manner, consistent with its vision and values and responsive to the needs of its stakeholders, the more resilient it will be through times of trouble.

On an airplane, the nearest exit is often not the door through which you came in.  Similarly, the way out of a crisis is often not the way you arrived.  Just as the floor-mounted lighting system in an aircraft will guide you to the nearest exit, an effective crisis management plan will guide the organization through turbulence to a safe landing.

 

For fun, click below to enjoy Air New Zealand’s pre-flight safety video featuring Richard Simmons, ‘Fit to Fly’.

 

You might also like this rap safety briefing on South West Airlines.

2013
06/25
CATEGORY
Corporate Responsibility
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Good Things

Follow some of the links recommended below... Some are specifically relevant to Canadians, but many are of general interest. I'll update from time to time.