Written from a conversation with Tom Isaac, partner in the Vancouver office of McCarthy Tetrault. Corporate project proponents form Mr. Isaac’s client base.
For the most part, the provisions of Bill C-38 create a much-needed streamlining of the way federal and provincial environmental assessments work together. As a likely and a key result, we can expect fewer joint provincial and federal EAs, with the provinces generally taking the lead on the process entirely on behalf of the federal Crown. Of course, it remains to be seen just how successful this turns out in practice, but in principle we should see a simplification of environmental assessments across the country – that in the past triggered both provincial and federal assessments – relieving project proponents of unnecessary and expensive delays.
Current EA practice varies across the country, with some provinces doing a better job of managing the process. British Columbia’s management style, in taking a proactive role in chairing meetings and taking the lead in steering projects through EAs and relations with First Nations, is one of the best. This is important because, in managing relations with aboriginal communities, the duty to consult rests with the Crown. In law, while a First Nation can file for a review of a decision, it’s the Crown that determines that these processes have been satisfied. Hence, having the province manage the environmental assessments and the Crown’s duty to consult from the beginning is the most reliable way of ensuring that it’s been carried out in a timely, thorough and transparent way. In Ontario, the one-window approach works well for power projects in particular, but the current practice in Ontario (and elsewhere) of leaving consultation with First Nations to the proponents’ initiative can leave proponents uncertain as to whether they’ve done what’s needed, when it’s needed. Bill C-38, however, does not affect how provinces currently run their EAs.
That said, it is perhaps peculiar that C-38 does not in fact directly address the duty to consult at all. The duty is embedded in the Constitution of Canada, and so is beyond legislative altering, but it is somewhat surprising, considering all the other changes made to effect streamlining, that though the bill does address stakeholder engagement generally, there is no explicit mention of consultation with First Nations. It remains, of course, that First Nation concerns must continue to be heard, and there’s also nothing in bill C38 from a process perspective that hampers or restricts it.
There does remain the possibility of substantive debate around the environmental effects of changes to the Fisheries Act, habitat protection and the like, but that does not affect the process for hearing concerns.
Finally, there is one issue, of a fairly technical nature, that stands out in the Bill. Section 5(1)(c)(i, ii, and iii) creates a special class of effects that require study, not under the heading of First Nation and Métis rights, but as separate subjects within the EA process. The question that arises is: How does one assess an environmental effect on, for example, cultural heritage, that is different from anyone else’s? Proponents may need to do a separate assessment from the standard EA as it affects this particular group, but not based on their rights, just on the fact that they’re a particular group of people. The intent may be that the constitutional rights are implicit, but from the perspective of a lawyer offering counsel to a client, it’s not clear what to advise them about a separate assessment that isn’t restricted to rights. If that section hadn’t been added, proponents would still have to consult on project effects on the aboriginal and treaty rights of First Nation and Métis peoples. But there’s no stated aboriginal right to socioeconomic status, or cultural heritage or archeological resources. The effect is that the legal logic isn’t clear, and nobody can be sure what these subsections mean. While the Act is intended to improve certainty, this seems to create a potential grey area. If we’re not sure what it means in practice, there are potential challenges that undermine the intent of what is otherwise a very good job of streamlining project review processes.