Does Canada's new impact assessment legislation protect human rights?
This week, new legislation entered in force overhauling the federal government’s system to assess and approve large-scale resource development projects like mines and dams. How does the new legislation affect human rights?
Under the old legislation (the Canadian Environmental Assessment Act, 2012, or CEAA 2012), there was a list of types of projects that were subject to federal assessment in a process with few opportunities for public input. Harmful environmental impacts of individual projects were assessed, and decisions on whether or how the project would proceed were based on whether the project was likely to create significant adverse environmental impacts. However, an environmental assessment recommendation to halt or proceed with a project could be overturned by the federal cabinet, with little explanation or transparency, if the project was deemed to be in the public interest. This is exactly what happened when cabinet approved the Site C dam.
Here’s the thing – resource development projects don’t just adversely affect the environment. They also have a significant impact on the human rights of people living in that environment. For example, there is ample evidence that large-scale resource development projects, particularly those dependent on large numbers of temporary workers, can have harmful impacts on women and girls, and on Indigenous women and girls in particular. The impacts range from increased exposure to risks of violence, to decreased access to strained social services. Amnesty International documented many of these impacts in a 2016 report titled “Out of Sight, Out of Mind: Gender, Indigenous Rights and Energy Development in Northeast British Columbia, Canada.”
Under CEAA 2012, the government of Canada irresponsibly ignored these impacts. At a time when awareness of the human rights crisis of missing and murdered Indigenous women, girls, and two-spirit people was growing, Canada’s environmental assessment process failed to identify and mitigate resource sector-related risks to the safety and security of Indigenous women, girls and two-spirit people. By doing so, unacceptable risks to the lives of Indigenous women, girls, and two-spirit people were compounded.
This is precisely why Amnesty International has long been calling for gender-based analysis to be included in the assessment process for resource development projects. This is why we were a witness before the Senate committee studying Bill C-69, and this is why we made written submissions to the House of Commons and Senate Committees reviewing the bill, and engaged in advocacy alongside partners in support of the legislation.
Ultimately, this is why we welcomed Bill C-69, the Impact Assessment Act, which entered into force on August 28.
The Impact Assessment Act creates an assessment framework that isn’t perfect, but it is much stronger than CEAA 2012. It calls for assessment of the positive and negative impacts of a project on both the environment and the people living near project sites and host communities. Critically, the Act mandates gender-based analysis in the assessment process, ensuring that future assessments will consider how social, economic, health, and environmental impacts may be different for people of different genders. Recognizing that the cumulative impacts of projects in a given region may be greater than the impact of individual project footprints, the Act does include a mechanism for regional cumulative impact assessments. The Act also mandates more robust and early public engagement in the planning phase of projects, which is critical to early identification of anticipated human rights impacts of a project on communities.
With the new Act now in force, three areas remain of great concern from a human rights perspective:
- The Act retains ministerial discretion on whether or not projects deemed to be ‘in the public interest’ should proceed. In practical terms, this means that an assessment could identify serious human rights concerns associated with a project, and the federal cabinet could go ahead with the project without mitigating risks. There is a bit more transparency and rigour in this process than in CEAA 2012, but the fact remains that a good assessment is ultimately meaningless unless the cabinet decides otherwise.
- The impact of the legislation is weakened by accompanying regulations to implement the legislation which limit the number and size of projects subject to the assessment process. Physical Activities Regulations, otherwise known as the projects list, outlines which projects are subject to federal assessment. The threshold to trigger an assessment has been raised, meaning that fewer projects will be subject to review when compared to CEAA 2012. For example, analysis by Environmental Defence shows that “to qualify for federal impact assessment, coal mines have to be 60 per cent larger than would have been captured under the previous regulations.”
- The Impact Assessment Act is federal legislation, and as such, applies to projects under federal jurisdiction. But not all projects are under federal jurisdiction; some projects are subject to provincial assessment. But few provinces and territories include gender-based analysis in their assessment processes. In November 2018, Amnesty International welcomed the government of British Columbia's new legislation mandating gender-based analysis in the assessment process for resource development projects under its jurisdiction. Other provinces and territories would do well to follow the example set by British Columbia. With the new Act and British Columbia's new legislation, there is a patchwork of assessment processes across Canada, with some projects subject to federal or provincial assessments with mandatory gender-based analysis, some subject to assessments without gender-based analysis, some not subject to assessments at all, and few options for regional cumulative impact assessments. These gaps in the assessment process will lead to gaps in recognizing and mitigating human rights violations associated with resource development projects.
So, at the end fo the day, does the new Impact Assessment Act protect human rights? It has the potential to have some impact, if fully implemented, and it sets a positive example for provinces and territories who have not yet mandated gender-based analysis in the assessment process.
The Impact Assessment Act has great potential to make a significant positive impact on the human rights of people living in or near resource sector host communities. But, the devil is always in the details. Ministerial discretion to ignore the outcome of assessments, the limited number of projects subject to federal assessment, and unknowns about how meaningful and robust public participation in the assessment process will be once it is rolled out, could severely limit the impact of the legislation.
Is our job as human rights advocates done now that the new Act has entered into force? No. In fact, in many ways it is just beginning. Monitoring of implementation and encouraging gender-based analysis in provincial and territorial assessment processes will be critical to ensuring that pressing human rights concerns including those identified in Amnesty International's research, are acknowledged and meaningfully and concretely addressed.
If you would like to know more about the Impact Assessment Act and how it may apply to projects proposed in or near your community, please read this excellent briefing note on the Impact Assessment Act, prepared by the Canadian Environmental Law Association.