ArticlePDF Available

The role of science in contemporary Canadian environmental decision making: The example of environmental assessment

  • Canadian Wildlife Service


In this article, we examine the role of science in Canada’s federal environmental assessment (EA) regime to illustrate opportunities for improvement. We do not address the application of science in EA practices (i.e., how to do good science within EA processes), which has been thoroughly reviewed by others. Instead, we examine the context for science in EA law: we examine the components of a regulatory regime, enshrined by law, that would allow for scientifically defensible assessments and evidence-based decision making. We have four objectives: (1) to provide a recent history of the role(s) of science in Canada’s legislated EA regimes, including public support for science in EA law; (2) to propose five components necessary in an EA regime to ensure strong inclusion of science; (3) to evaluate if new proposed legislation meets scientific standards for modern EA, particularly cumulative effects and climate change; and (4) to encourage collaboration between scholars and practitioners in law and the natural and social sciences to work towards stronger scientific foundations in Canada’s EA regimes at all levels.
In the fall of 2015, Canada adopted the United Nations2030 Agenda
for Sustainable Development (the “Agenda”).1 The Agenda consists of 17
Sustainable Development Goals (“SDGs”, see Figure 1) and envisions “a
secure world free of poverty and hunger, with full and productive
employment, access to quality education and universal health coverage,
the achievement of gender equality and the empowerment of all women
and girls, and an end to environmental degradation.2 Shortly thereafter,
Yellowstone to Yukon Conservation Initiative, Canmore, AB, T1W 1P6.
Faculty of Law, University of Calgary, Calgary, AB, T2N 1S4.
* Department of Oceanography, Dalhousie University, Halifax, NS, B3H 4R2.
†† Department of Biology, The University of British Columbia - Okanagan Campus,
Kelowna, BC, Canada, V1V 1V7.
Yellowstone to Yukon Conservation Initiative, Canmore, AB, T1W 1P6.
‡‡ Earth to Ocean Research Group, Department of Biological Sciences, Simon Fraser
University, Burnaby, BC, Canada, V5A 1S6.
1 See “The 2030 Agenda for Sustainable Development” (last modified 17 July 2018),
online: Government of Canada <
lang=eng>; Transforming Our World: The 2030 Agenda for Sustainable Development,
A Res 70/1, UNGAOR, 70th Sess, Supp No 49 (2015).
2 “The 2030 Agenda for Sustainable Development”, ibid.
Canadians elected a new political party to government whose campaign
included a promise to strengthen Canada•s environmental laws after
nearly a decade of weakening.3 One of the government•s first official acts
was to sign and champion the 2015 Paris Agreement on climate change.4
Figure 1: The UN Sustainable Development Goals5
As of spring 2018, however, the status of these initiatives appears
uncertain. With respect to the SDGs, the Commissioner of the
Environment and Sustainable Development reported on 24 April 2018
that Canada •had not developed a formal approach to implement the
2030 Agenda and the sustainable development goals. . . . [and] despite
some specific action at the departmental level, there was still no federal
governance structure . . . [and] no implementation plan or system to
3 As further discussed in Part II, infra.
4 Paris Agreement under the United Nations Framework Convention on Climate
Change, 22 April 2016, Can TS 2016/9 (entered into force 4 November 2016)
[Paris Agreement].
5 Figure reprinted from •Sustainable Development Goals•, online: Un ited
Nations Development Programme <
development-goals.html>. For a description of the UN Sustainable Development
Goals, see •Sustainable Development Goals•, ibid.
measure, monitor, and report on the progress in achieving the goals.6
Similarly, and notwithstanding over two years of study, Canada’s federal
environmental-law regime appears on track to retain many of its
dominant—and negative—characteristics, including excessively
discretionary government powers, a failure to meaningfully tackle the
challenge of cumulative environmental impacts, and a lack of a strong
commitment to science that is open, rigorous, and impartial.7
In this article, we examine the role of science in Canadas federal
environmental assessment (EA)8 regime to illustrate opportunities for
improvement. We do not address the application of science in EA
practices (that is, how to do good science within EA processes), which
has been thoroughly reviewed by MacKinnon et al.9 Instead, we examine
the context for science in EA law: we examine the components of a
6 Auditor General of Canada, Reports of the Commissioner of the Environment and
Sustainable Development to the Parliament of Canada: Report 2; Canada’s
Preparedness to Implement the United Nations’ Sustainable Development Goals
(Ottawa: Auditor General of Canada, 2018) at 7.
7 For early commentary on these laws, see Meinhard Doelle, “Bill C-69: The Proposed
New Federal Impact Assessment Act (IAA)” (9 February 2018), online (blog):
Environmental Law News <
proposed-new-federal-impact-assessment-act/>; Martin Olszynski, “In Search of
#BetterRules: An Overview of Federal Environmental Bills C-68 and C-69” (15
February 2018), online (pdf ): <
2018/02/Blog_MO_Bill68_ Bill69.pdf>; Martin Ignasiak, Sander Duncanson &
Jessica Kennedy, “Changes to Federal Impact Assessments, Energy Regulator and
Waterway Regulation (Bills C-68 and C-69)” (12 February 2018), online: Osler
< 2018/changes-to-federal-impact-assessments-
8 In this review, we use the term “environmental assessment” (as opposed to
“environmental impact assessment”, “impact assessment”, or others) as this is the
relevant term for most of the Canadian environmental law literature. Bill C-69 uses
the term “impact assessment”, and this term may soon come into legal force.
Although we recognize the important semantic differences between the terms, for
the purposes of this article, we assume that “EA” encapsulates other terms. We use
the term “regime” to refer to the relevant laws, regulations, and policy instruments
through which EAs are carried out in Canada.
9 Aaron J MacKinnon, Peter N Duinker & Tony R Walker, The Application of
Science in Environmental Assessment (London: Routledge, 2018).
regulatory regime, enshrined by law, that would allow for scientifically
defensible assessments and evidence-based decision making. We have
four objectives: (1) to provide a recent history of the role(s) of science in
Canada’s legislated EA regimes, including public support for science in
EA law; (2) to propose five components necessary in an EA regime to
ensure strong inclusion of science; (3) to evaluate if new proposed
legislation meets scientific standards for modern EA, particularly
cumulative effects and climate change; and (4) to encourage
collaboration between scholars and practitioners in law and the natural
and social sciences to work towards stronger scientific foundations in
Canada’s EA regimes at all levels.
EA laws in Canada have changed over time and among jurisdictions, but
rarely have they been used to prevent negative environmental impacts
outright. Rather, and as is the case with the western world’s first modern
environmental assessment law (the United States’ Na tion al
Environmental Policy Act10) the primary goal of EA laws has been
considerably less ambitious: “to force agencies to consider the
environmental effects of their actions and to provide a means to involve
and inform the public in federal agency decision-making.”11 In simpler
terms, laws like the NEPA “merely prohibit uninformed—rather than
unwise—agency action.12
10 42 USC § 4321 (1970) [NEPA].
11 Courtney A Schultz, “History of the Cumulative Effects Analysis Requirement
Under NEPA and Its Interpretation in U.S. Forest Service Case Law” (2012) 27:1 J
Envtl L & Litig 125 at 126 [emphasis added].
12 Chief of the Forest Service v Methow Valley Citizens Council, 490 US 332 at 35051
(9th Cir 1989) [citations omitted]:
The sweeping policy goals announced in . . . NEPA are thus realized through a set of “action-
forcing” procedures that require that agencies take a “‘hard look’ at environmental
consequences, and that provide for broad dissemination of relevant environmental
information. Although these procedures are almost certain to affect the agency’s substantive
Arguably, Canada’s succession of EA laws has not been vastly
different. As was noted by the Supreme Court of Canada (SCC) in its
landmark 1992 decision, Friends of the Oldman River,13 in which it
interpreted the then-applicable Environmental Assessment and Review
Process Guidelines Order:14
Environmental impact assessment is, in its simplest form, a planning tool
that is now generally regarded as an integral component of sound
decision-making. . . .
As a planning tool it has both an information-gathering and a
decision-making component which provide the decision maker with an
objective basis for granting or denying approval for a proposed
development. In short, environmental impact assessment is simply
descriptive of a process of decision making.15
The critical assumption underlying such EA regimes is that
identifying potential environmental (and other) impacts in a transparent
and rigorous manner should lead to decision making that better accounts
for environmental, social, and health impacts, including through the
potential for political or democratic accountability for such decisions.16
The following description by the Federal Court of Canada, which can be
applied equally to all of Canadas EA regimes (past, present, and future),
captures this intended dynamic well: “In short, Parliament has designed
decision, it is now well settled that NEPA itself does not mandate particular results, but
simply prescribes the necessary process. . . . Other statutes may impose substantive
environmental obligations on federal ag encies, but NEPA merely prohibits uninformed—
rather than unwise—agency action.
13 Friends of the Oldman River Society v Canada (Minister of Transport), [1992] 1 SCR
3, 88 DLR (4th) 1 [Friends of the Oldman River cited to SCR].
14 SOR/84-467 [EARPGO].
15 Friends of the Oldman River, supra note 13 at 71 [emphasis added, citations
16 See Bradley C Karkkainen, “Toward a Smarter NEPA: Monitoring and Managing
Governments Environmental Performance” (2002) 102:4 Colum L Rev 903 at 904
a decision-making process . . . that is, when it functions properly, both
evidence-based and democratically accountable.”17
Instead, Canada’s EA regimes have garnered much criticism,
including for weaknesses regarding the requirements for, and the quality
of, science and evidence in the EA process.18 In an effort to address these
and other shortcomings, the Government of Canada is currently in the
midst of reforming the existing federal EA regime, the Canadian
Environmental Assessment Act, 2012.19 The CEAA 2012 itself is the
product of widely panned reforms made just six years ago by the previous
Conservative government.20 Within this process, there have been
repeated calls from scientific, legal, environmental, and Indigenous
communities to improve the scientific basis of EA.21
17 Greenpeace Canada v Canada (AG), 2014 FC 463 at para 237, 87 CELR (3d) 173
[Greenpeace] [emphasis added].
18 See e.g. Doelle, “The End of EA, supra note 20; Robert B Gibson, “In Full Retreat:
The Canadian Government’s New Environmental Assessment Law Undoes Decades
of Progress” (2012) 30:3 Impact Assessment & Project Appraisal 179; Lorne A Greig
& Peter N Duinker, “A Proposal for Further Strengthening Science in
Environmental Impact Assessment in Canada” (2011) 29:2 Impact Assessment &
Project Appraisal 159; Pierre Gosselin et al, The Royal Society of Canada Expert
Panel: Environmental and Health Impacts of Canada’s Oil Sands Industry (Ottawa:
The Royal Society of Canada, 2010).
19 SC 2012, c 19, s 52 [CEAA 2012].
20 CEAA 2012 was introduced as part of the Conservative government’s omnibus
budget bill in 2012. See Jobs, Growth and Long-term Prosperity Act, SC 2012, c 19.
This legislation also amended the federal Fisheri es Act, RSC 1985, c F-14 and what
was then the Navigable Waters Protection Act, RSC 1985, c N-22. For critical
commentary of those reforms, see e.g. Meinhard Doelle “CEAA 2012: The End of
Federal EA As We Know It?” (2012) 24:1 J Envtl L & Prac 1 [Doelle, “The End of
EA”]; Martin ZP Olszynski, “From ‘Badly Wrong’ to Worse: An Empirical Analysis
of Canada’s New Approach to Fish Habitat Protection Laws” (2015) 28:1 J Envtl L
& Prac 1.
21 Aerin L Jacob et al, “Cross-Sectoral Input for the Potential Role of Science in
Canada’s Environmental Assessment” (2018) 3:1 FACETS 512 at evaluated
hundreds of public responses to proposed reformation of the federal EA regime, and
found strong support across sectors for improved scientific components.
Although each EA regime in Canada is unique, all can be understood
as consisting of four general phases: (1) a planning phase where basic
information about a project and its potential impacts, as well as the
assessment that will be conducted, are shared and discussed with
stakeholders; (2) an assessment phase, where baseline social,
environmental, and health conditions are measured and potential project
impacts are estimated (that is, “environmental impact statement”); (3) a
decision-making phase, where the relevant authority considers
environmental (and other) potential impacts and makes decisions (for
example, to approve or reject a project or establish conditions of
approval); and, ideally, (4) a learning or adaptive management phase,
where project follow-up and monitoring occurs, and EA processes at
large are evaluated and adjusted in a recursive manner.
Conventionally, the scientific method includes identifying a
hypothesis to be tested, including associated predictions and
assumptions, making observations, and analyzing whether the observed
results match the predictions.22 In the EA context, hypothesis testing
manifests through the predicted necessity or effectiveness of mitigation
measures. For example, if mitigation is deemed unnecessary, it is because
the proponent hypothesizes that the project will have negligible
environmental impacts. If mitigation is prescribed, and the proponent
deems a project to have negligible (that is, nonsignificant) residual
impacts, it is because the mitigation is hypothesized to work in the
manner predicted by the proponent. Equally relevant to hypothesis
testing, in both a purely scientific and EA context, are evaluations of data
reliability (for example, accuracy, precision, independence, and efforts to
reduce sampling biases), sample size, effect size vis-à-vis statistical
significance, and statistical power. Scientific methods are also used to
estimate the costs and consequences of negative environmental impacts
22 Fo r a discus sion of science and scientific evidence aimed at Canadian legal audiences,
see Scott Findlay & Nathalie Chalifour, “Science and the Scientific Method” in
Science Manual for Canadian Judges (Ottawa: National Judicial Institute, 2013) 39,
online (pdf ): <>.
on species, ecosystems, and communities, as well as the expected costs
to humans.
Scientific evidence23 is a critical element in each of the four EA
phases. During the planning and assessment phases, much of the
evidence used to determine baseline conditions, identify environmental
sensitivities (for example, species at risk and water quality), and make
potential impact estimations is derived using approaches from the
natural and social sciences. Though scientific evidence is only one of
many considerations (for example, economic, social, political), it is used
to inform decision making regarding whether an industrial project will
be approved, and under what conditions. Scientific information,
evidence, and theory are also used in the recursive component of
adapting and improving EA processes.
Although some form of EA has taken place in Canada since the 1930s,
federal legislation was not enshrined until 1995. In this section, we
briefly describe the evolution of relevant federal statutes,24 each of which
contained different provisions and opportunities for including science.
Importantly, none of the federal EA statutes implemented to date have
ever contained explicit provisions with respect to science. This stands in
contrast to several other federal environmental laws. As one example, the
23 Here, we use the term “evidence” to refer to scientific evidence gathered using
biophysical or social science methods. We recognize the value and importance of
Indigenous and traditional knowledge in EA; however, we do not address the
methods by which this is provided and subsequently integrated with EA in this
review. We encourage readers to look to Indigenous communities and organizations
for guidance regarding the role of Indigenous knowledge in EA reviews, of which
many such guides are available.
24 We do not review in detail the history of EA theory, practice, or legislation in
Canada. This has been done by others, including MacKinnon, Duinker & Walker,
supra note 9; David R Boyd, Unnatural Law: Rethinking Canadian Environmental
Law and Policy (Vancouver: UBC Press, 2003); Meinhard Doelle & Chris Tollefson,
Environmental Law: Cases and Materials, 2nd ed (Toronto: Carswell, 2013).
preamble to the Canadian Environmental Protection Act, 199925
“recognizes the integral role of science, as well as the role of traditional
aboriginal knowledge, in the process of making decisions relating to the
protection of the environment and human health.26 CEPA 1999 also
imposes a duty on the federal government to “apply knowledge,
including traditional aboriginal knowledge, science and technology, to
identify and resolve environmental problems”.27 Most concretely, section
76.1 requires the Minister of Environment, when “conducting and
interpreting the results of ” various toxicity assessments pursuant to Part
5, to “apply a weight of evidence approach and the precautionary
principle.28 In Goodyear Canada Inc v Canada (Minister of the
Environment), the Federal Court described one such assessment as “a
statutorily mandated scientific evaluation of . . . a chemical substanc to
determine whether it is toxic or capable of becoming toxic.29
As another example, the federal Species at Risk Act contains several
references to “science” or scientific” information.30 In addition to
references in the preamble,31 SARA defines “status report[s]” as
containing “a summary of the best available information on the status of a
wildlife species, including scientific knowledge, community knowledge
25 SC 1999, c 33 [CEPA 1999].
26 Ibid, Preamble.
27 Ibid, s 2(1)(i).
28 Ibid, s 76.1
29 2017 FCA 149 at para 41, 9 CELR (4th) 1.
30 SC 2002, c 29, Preamble, ss 2(1), 15(2), 38 [SARA].
31 See ibid, Preamble:
wildlife, in all its forms, has value in and of itself and is valued by Canadians for aesthetic,
cultural, spiritual, recreational, educational, historical, economic, medical, ecological and
scientific reasons, . . .
the Government of Canada is committed to conserving biological diversity and to the
principle that, if there are threats of serious or irreversible damage to a wildlife species,
cost-effective measures to prevent the reduction or loss of the species should not be
postponed for a lack of full scientific certainty . . . .
and aboriginal traditional knowledge.”32 In carrying out assessments and
making recommendations with respect to the species listing, the
Committee on the Status of Endangered Wildlife in Canada “must carry
out its functions on the basis of the best available information on the
biological status of a species, including scientific knowledge”.33 Finally,
section 38 of SARA imposes a duty on the Minister, “[i]n preparing a
recovery strategy, action plan or management plan, . . . [to] consider the
commitment of the Government of Canada to conserving biological
diversity and to the principle that, . . . cost-effective measures . . . should
not be postponed for a lack of full scientific certainty.34 While SARA is
widely criticized for its inefficacy at fostering the actual biological
recovery of species at risk,35 there is little doubt that it is at least
strengthened by the explicit science-based provisions.36 Indeed, the
“transparent separation of science and policy” in SARAs listing process
has been described as its “primary strength”.37
With regard to the history of EA in Canada, the first generally
applicable federal EA regime was the Environmental Assessment and
Review Process Guidelines Order. The EARPGO was established and
32 Ibid, s 2(1) [emphasis added].
33 Ibid, s 15(2) [emphasis added].
34 Ibid, s 38.
35 See e.g. Brett Favaro et al, “Trends in Extinction Risk for Imperiled Species in
Canada” (2014) 9:11 PLoS One; Katherine Dorey & Tony R Walker, “Limitations
of Threatened Species Lists in Canada: A Federal and Provincial Perspective” (2018)
217 Biological Conservation 259.
36 See e.g. Alberta Wilderness Association v Canada (Minister of Environment), 2009 FC
710 at para 25 [emphasis added]:
The agreed upon interpretation, which I endorse to the extent that it is relevant to this
application, is as follows. There is no discretion vested in the Minister in identifying critical
habitat under the SARA. Subsection 41(1)(c) requires that the Minister identify in a
recovery strategy document as much critical habitat as it is possible to identify at that time,
even if all of it cannot be identified, and to do so based on the best information then
available. . .
37 Arne O Mooers et al, “Science, Policy, and Species at Risk in Canada” (2010) 60:10
BioScience 843 at 845.
approved in 1984 as a regulation enacted pursuant to section 6 of the
Department of the Environment Act.38 In its 1992 Frie nds of the Oldman
River decision, the SCC described the regime as follows:
In general terms, these guidelines require all federal departments and
agencies that have a decision-making authority for any proposal, i.e., any
initiative, undertaking or activity that may have an environmental effect
on an area of federal responsibility, to initially screen such proposal to
determine whether it may give rise to any potentially adverse
environmental effects. If a proposal could have a significant adverse
effect on the environment, provision is made for public review by an
environmental assessment panel whose members must be unbiased,
free of political influence and possessed of special knowledge and
experience relevant to the technical, environmental and social effects of
the proposal.39
Although science was obviously an implicit part of this regime,40 the
EARPGO contained no explicit references to the term “science” or
“scientific information. Indeed, the entire regime was—and still
is—built around the concept of significant adverse environmental effects,41
38 RSC 1985, c E-10, s 6.
39 Friends of the Oldman River, supra note 15 at 1718.
40 See e.g. Federal Environmental Assessment Review Office, The Federal
Environmental Assessment and Review Process (Ottawa: Minister of Supply
and Services Canada, 1987) at 4, online (pdf ): Government of Canada
.pdf>. With respect to review panels, it is noted that “[p]articipation in the hearings,
not only by the specialists hired by the panel but by the public as well, is vital to the
review. A panel obviously needs technical and scientific analyses from experts but it also
needs to hear from people who could be affected by the proposal, particularly those
who live near the proposed site”: ibid [emphasis added].
41 It should be noted that the term “significant environmental effects” is different than
the accepted scientific definition of significance”, whereby a hypothesis has been
proven statistically to be false in 95% of cases. For a discussion of the interpretations
of “significance” in law, see Findlay & Chalifour, supra note 22 at 85.
which has long been criticized as lacking in scientific precision.42
Notwithstanding the SCC’s previous description of EA as providing “an
objective basis” for decision making,43 the Federal Court of Appeal, in an
early but still authoritative case on federal EA in Canada, endorsed a
relatively subjective interpretation of this term, stating that significance
“is not a fixed or wholly objective standard and contains a large measure of
opinion and judgment. Reasonable people can and do disagree about the
adequacy and completeness of evidence which forecasts future results
and about the significance of such results”.44 The only other term that
came close to creating something of an objective benchmark was the
reference to “known technology” in the context of mitigating
adverse environmental effects.45 However, it received relatively little
judicial treatment.46
The EARPGO was superseded in 1995 by the Canadian
Environmental Assessment Act.47 This regime was fundamentally different
from both its predecessor and its successor (CEAA 2012) in that it was
triggered, not by specific proposals or projects, but rather by federal
decision making generally. Under the CEAA, an EA was required
whenever the federal government was a proponent of a project, provided
funding for a project, or when a project took place on federal lands or
42 See Alan Ehrlich & William Ross, “The significance spectrum and EIA significance
determinations” (2015) 33:2 Impact Assessment & Project Appraisal 87 for a review
of criticism of the lack of precision around “significance” in environmental
43 Friends of the Oldman River, supra note 15 at 71 [emphasis added].
44 Alberta Wilderness Association v Express Pipelines Ltd (1996), 137 DLR (4th) 177 at
181, 42 Admin LR (2d) 296 (FCA) [emphasis added].
45 EARPGO, supra note 14, s 12(c).
46 See the text accompanying notes 5354 for the limited jurisprudence on the term
“known technology” and its successor, which refers to mitigation measures that are
“technically and economically feasible”: Canadian Environmental Assessment Act, SC
1992, c 37, s 16(1)(d) as it appeared on 23 June 1992 [CEAA].
47 Ibid.
required a federal permit or authorization.48 Like the EARPGO, the
original CEAA also contained no explicit references to science or
scientific information. However, the CEAA did contain more
science-related terms, such as an undefined reference to “adaptive
management” in the context of describing follow-up programs.49
Through a series of decisions,50 Canadas Federal Court eventually came
to misconceive adaptive management as permit[ting] projects with
uncertain, yet potentially adverse environmental impacts to proceed
based on flexible management strategies capable of adjusting to new
information regarding adverse environmental impacts where sufficient
information regarding those impacts and potential mitigation measures
already exists.”51 This approach has been widely criticized as failing to
appreciate the limits of adaptive management on the one hand (for
example, it cannot be applied to all environmental problems, nor does it
guarantee positive environmental outcomes), and the persistent
problems with its implementation on the other (for example, the absence
of clear goals, enforceable and objective triggers for adaptation, and
adequate monitoring).52 The EARPGOs reference to “known
48 See ibid, s 5(1).
49 Ibid, s 38(5), as amended by SC 2003, c 9, s 18 (“The results of follow-up programs
may be used for implementing adaptive management measures or for improving the
quality of future environmental assessments”).
50 See Pembina Institute for Appropriate Development v Canada (AG), 2008 FC 302 at
para 32, 80 Admin LR (4th) 74, citing Canadian Parks and Wilderness Society v
Canada (Minister of Canadian Heritage), 2003 FCA 197 at para 24, 1 Admin LR
(4th) 103.
51 Pembina, ibid. The one exception may be the Federal Court’s recent decision in
Taseko Mines Limited v Canada (Minister of the Environment), 2017 FC 1099 at para
124, 2017 CarswellNat 6943, wherein the Court recognized that “acceptance of
vague adaptive management schemes . . . would, in my view, tend to call into
question the value of the entire review panel process—if all such decisions could be
left to a later stage, then the review panel process would simply be for the sake of
52 See e.g. Arlene J Kwasniak, “Use and Abuse of Adaptive Management in
Environmental Assessment Law and Practice: A Canadian Example and General
technologies” was also replaced in the CEAA by mitigation measures
that were “technically and economically feasible and that would mitigate
any significant adverse environmental effects of the project”.53 As noted
by Nathalie Chalifour, there is limited jurisprudence as to what this term
means, and what jurisprudence does exist has not prevented proponents,
the Canadian Environmental Assessment Agency, and review panels
from relying on little more than “vague hopes for future technology.”54
The CEAA was repealed and replaced by the CEAA 2012, the most
dramatic difference being that, while the former was triggered by federal
decision making generally, the latter only applies to designated major
projects, which reduced the number of federal EAs carried out annually
from several thousand to less than 100.55 While the original CEAA was
criticized for lacking provisions for robust science, the CEAA 2012
stepped even further away from science-based EA. The CEAA 2012 and
the assessments conducted under it were criticized by many experts
(including scientists, legal scholars, and former politicians) for
diminished scientific rigour and independence in decision making,
Lessons” (2010) 12:4 J Environmental Assessment Policy & Management 425;
Nathalie J Chalifour “Case Comment: A (Pre)Cautionary Tale about the Kearl Oil
Sands Decision; The Significance of Pembina Institute for Appropriate Development
et al. v. Canada (Attorney-General) for the Future of Environmental Assessment
(2009) 5:2 JSDLP 251; Martin ZP Olszynski, “Failed Experiments: An Empirical
Assessment of Adaptive Management in Alberta’s Energy Resources Sector” (2017)
50:3 UBC L Rev 697 [Olszynski, “Failed Experiments”].
53 CEAA, supra note 46, s 16(1)(d).
54 Chalifour, supra note 52 at 269, citing Canadian Wildlife Federation Inc v Canada
(Minister of the Environment) (1989), 31 FTR 1, 4 CELR (NS) 201 (FCTD).
55 Arlene Kwasniak, “Federal Environmental Assessment Re-Envisioned to Regain
Public Trust: The Expert Panel Report” (12 April 2017), online (pdf ):
(noting that “[a]lthough numbers varied, several thousand federal EAs were
triggered annually under CEAA 1992” whereas “in 2014 there were only 23 EAs.”)
See also Canadian Environmental Assessment Agency, “Browse Projects” (last
modified 17 August 2018), online: Government of Canada <
evaluations/ exploration?culture=en-CA>. As of 30 December 2018, there were 78
federal EAs in progress: ibid.
inadequate consideration of cumulative effects, and hampering public
and Indigenous participation.56 Like the original CEAA, the CEAA 2012
contains no explicit reference to science or scientific information. The
CEAA’s singular reference to adaptive management was also removed,
although it continues to be invoked by proponents in the context of their
project descriptions and environmental impact statements.57 Finally, a
2017 study by Roach and Walker of the impacts of the regime change on
56 See e.g. John D Reynolds, Isabelle M Côté & Brett Favaro, A Bleak Day for the
Environment” (2012) 487 Nature 171; Letter from Jonathan W Moore et al, Liber
Ero Chair of Coastal Science and Management, Associate Professor, Simon Fraser
University to Catherine McKenna, Minister of Environment and Climate Change (9
March 2016), online (pdf ): <
.pdf> (“open letter signed by 135 scientists . . . voicing extreme concern about the
serious scientific flaws in the draft assessment of environmental risks from the
proposed Pacific NorthWest Liquid Natural Gas facility at Lelu Island/Flora Bank,
Skeena River estuary, British Columbia”); David Schindler, “Statement of Concern:
Statement of Concerned Scholars on the Site C Dam Project, Peace River, British
Columbia”, online: Site C: Statement by Concerned Scholars <
home/> (371 cosignatories); Letter from Aerin Jacob, Liber Ero Fellow, University
of Victoria to Prime Minister Justin Trudeau (15 November 2016), online:
<youngresearchers> (open letter with more than 1700 original
cosignatories); Letter from Maryse Lassonde, President of the Royal Society of
Canada to Prime Minister Justin Trudeau (19 May 2016), online (pdf ):
2016.pdf> (open letter); Letter from Kai MA Chan, Associate Professor, University
of British Columbia to Prime Minister Stephen Harper (26 May 2014),
online (pdf ): <
jrp_report_may_26_2014.pdf> (“[o]pen Letter on the Joint Review Panel report
regarding the Northern Gateway Project” with more than 300 cosignatories); Letter
from DW Schindler, Professor of Ecology, Department of Biological Sciences,
University of Alberta to Prime Minister Stephen Harper (22 March 2012), online
(pdf ): <> (open letter “re.
Potential amendments to section 35 of the Fisheries Act” with more than 500
cosignatories); Chris Turner, The War on Science: Muzzled Scientists and Wilful
Blindness in Stephen Harper's Canada (Vancouver: Greystone Books, 2013).
57 See Olszynski, “Failed Experiments”, supra note 52 (“[a] recent [August 2015] survey
of the Canadian Environmental Assessment Registry revealed that 91% of the
projects listed there . . . contained at least one reference—and usually severalto
adaptive management” at 700).
monitoring and follow-up programs found that the number and type
of parameters reported lacked consistency both within and between
Acts, although post-CEAA 2012 projects had fewer follow-up
commitments overall.58
In 2015, the Liberal Party of Canada campaign included a promise of
“robust oversight and thorough environmental assessments”, including
“decisions . . . based on science, facts, and evidence, and serv[ing] the
public’s interest”.59 After winning the election, Prime Minister Trudeau
gave the Minister of Environment and Climate Change a public mandate
letter with specific direction on EAs, stating:
Supported by the Ministers of Fisheries, Oceans and the Canadian
Coast Guard, and Natural Resources, immediately review Canadas
environmental assessment processes to regain public trust and help get
resources to market and introduce new, fair processes that will:
restore robust oversight and thorough environmental assessments
of areas under federal jurisdiction, while also working with
provinces and territories to avoid duplication;
ensure that decisions are based on science, facts, and evidence, and
serve the public’s interest;
provide ways for Canadians to express their views and
opportunities for experts to meaningfully participate; and
require project advocates to choose the best technologies available
to reduce environmental impacts.60
58 Brynn Roach & Tony R Walker, “Aquatic Monitoring Programs Conducted During
Environmental Impact Assessments in Canada: Preliminary Assessment Before and
After Weakened Environmental Regulation” (2017) 189:3 Environmental
Monitoring & Assessment 109 at 109.
59 See Liberal Party of Canada, “Environmental Assessments” (2018), online: Liberal
60 Letter from Justin Trudeau to Catherine McKenna (12 November 2015), online:
Justin Trudeau, Prime Minister of Canada <
In August 2016, the government appointed a four-person Expert
Panel for the Review of Environmental Assessment Processes (the
Expert Panel”) to review federal EA processes through nationwide
consultations with experts, Indigenous groups, and the public, including
invitations for written submissions and in-person presentations.61 The
Expert Panel was advised by a Multi-Interest Advisory Committee
(MIAC), including representatives from industry associations,
Indigenous organizations, environmental groups, and federal
departments and agencies.
On 5 April 2017, the Minister of Environment and Climate Change
released a report by the Expert Panel, Building Common Ground: A Ne w
Vision for Impact Assessment in Canada.62 This report, informed by a year
of public engagement as well as the input of MIAC, recommended a
major overhaul of CEAA 2012, including the need to ensure stronger
evidence-based decision making. The Expert Panel called for the
creation of a new, independent, and quasi-judicial commission to
conduct impact assessment in Canada.63 With respect to science, the
following findings and recommendations are particularly relevant:
Current legislation does not include requirements for how science is
incorporated into IAs [or EAs], nor does it provide for timelines that
would allow for credible scientific methods to be implemented.
61 See “Review of Environmental Assessment Processes: Expert Panel Te r m s o f
Reference” (last modified 28 June 2017), online: Government of Canada <canada
62 Canadian Environmental Assessment Agency, Building Common Ground: A New
Vision for Impact Assessment in Canada, by Expert Panel (Ottawa: CEAA, 2017)
[CEAA, Building Common Ground].
63 See ibid (“the best way to achieve efficient, consistent and accountable governance is
to incorporate the [impact assessment] function into a single authority . . . . A
structure such as a quasi-judicial tribunal would empower the single authority to
fulfil this mandate” at 51).
Accordingly, stronger guidelines and standards are needed to ensure that
IA processes include rigorous scientific methods.64
Baseline and monitoring data should be standardized and made publicly
available. This should include standard methods for data collection or
metadata so that data are comparable and studies are replicable.
Accessibility to this information should strengthen future IA practices
by building a shared body of knowledge across environmental,
economic, health, cultural and social conditions, including
cumulative effects.65
To ensure that IA studies use robust scientific methods, the IA authority
must have a statutory mandate to verify the adequacy of IA studies,
including the Impact Statement. . . . This new legislative requirement is
needed to ensure that the scientific evidence produced in IA processes is
based on robust methods and can therefore be relied upon and trusted
by participants in the IA process.66
The development of the Impact Statement would be led by the
Commission using a team of consultants and experts (the assessment
team”) retained by the Commission that is free of any conflict of interest
and chosen through a collaborative process involving the project committee
and government expert committee. . . . It would include consultants and
other independent experts (including Indigenous knowledge-holders)
with expertise related to the factors of the study . . . and any other special
expertise relevant to preparing the Impact Statement.67
Broadly speaking, the Expert Panel’s report was favourably received by
independent experts.68
64 Ibid at 42 [emphasis added].
65 Ibid at 43 [emphasis added].
66 Ibid at 44 [emphasis added].
67 Ibid at 62 [emphasis added].
68 See e.g. Meinhard Doelle & John Sinclair, “EA Expert Panel Report: Reflections on
Canada’s Proposed Next Generation Assessment Process” (27 April 2017), online
(pdf): <>, DOI <dx.doi
.org/10.2139/ssrn.2959453>; Martin Olszynski et al, “Strengthening Canada's
Environmental Assessment and Regulatory Processes: Recommendations and Model
Legislation for Sustainability", Response to the Government of Canada's Discussion
The federal government released its response to the report in June
2017.69 The Environmental and Regulatory Reviews: Discussion Paper
(the Discussion Paper) signalled the governments intent for
environmental legislative reform, including its preliminary themes and
intent to incorporate opportunities for public review. Though the
Discussion Paper included some of the Expert Panel’s recommendations
in areas such as early planning, Indigenous engagement, and public
participation,70 it incorporated few of the Expert Panel’s
recommendations regarding science or evidence-based decision making.
The government did, however, signal interest in “[m]oving toward an
open science and data platform” and “[r]einforcing rigour through peer
reviews of science and evidence in the assessment phase”.71 Numerous
responses to the Discussion Paper were made, including
recommendations by scientists and policy experts to strengthen
provisions for science.72
On 8 February 2018, the government introduced Bill C-69, which
will introduce a new Impact Assessment Act (IAA) and repeal the CEAA
2012.73 Termed a once-in-a-generation opportunity”, 74 Bill C-69 is
Paper on Environmental and Regulatory Reform (18 August 2017) online (pdf ):
69 Natural Resources Canada, Environmental and Regulatory Reviews: Discussion Paper
(Ottawa: Natural Resources Canada, 2017), online (pdf ): <
70 See ibid at 1011, 1516,
71 Ibid at 12.
72 See e.g. Alana R Westwood et al, “Strong Foundations: Recap and
Recommendations from Scientists Regarding the Federal Environmental and
Regulatory Reviews” (2017) at 12–14, online (pdf): <
[Westwood et al, “Strong Foundations”]; see also Olszynski et al, supra note 68.
73 See Bill C-69, An Act to enact the Impact Assessment Act and the Canadian Energy
Regulator Act, to amend the Navigation Protection Act and to make consequential
currently under significant scrutiny from all sectors as it makes its way
through the Senate in the fall of 2018. We discuss the proposed IAA in
Part IV of this article.
The foregoing discussion shows that the incorporation of explicit
scientific language in Canadian EA law has been virtually nonexistent.
Further, science-related terms such as “adaptive management” or
“significant adverse environmental effects” have never been explicitly
defined, rendering them vulnerable to judicial misunderstanding and
misinterpretation. The potential for such misunderstanding is
particularly high in environmental law because so many of its disputes
are resolved in the context of judicial review applications (that is,
challenges to government decision making), where the default judicial
posture is deference to assumed departmental expertise.75 Departments,
for their part, tend to prefer statutory interpretations that preserve their
flexibility and discretion.76 Moreover, in the EA context specifically,
courts have declared that they will also not assess the substance of the
science relied upon by government departments for fear of becoming
“academ[ies] of science”.77
amendments to other Acts, 1st Sess, 42nd Parl, 2018 (as passed by the House of
Commons 20 June 2018) [IAA].
74 Jason MacLean, Meinhard Doelle & Chris Tollefson, “Polyjural and Polycentric
Sustainability Assessment: A Once-in-a-Generation Law Reform Opportunity”
(2016) 30:1 J Envtl L & Prac 35 at 38.
75 See e.g. Martin Olszynski & Meinhard Doelle, “Ontario Power Generation Inc. v
Greenpeace Canada: Form over Substance Leads to a ‘Low Threshold’ for Federal
Environmental Assessment”, Case Comment, (22 September 2015), online (pdf ): <
76 See e.g. Georgia Straight Alliance v Canada (Minister of Fisheries and Oceans), 2010
FC 1233 at para 287, [2012] 3 FCR 136. In the context of a dispute over the correct
interpretation of the SARA, the Court observed that “[i]t is apparent throughout
the [Ministers’] submissions that the Ministers much prefer the discretions and
flexibility of the Fisheries Act to the mandatory obligations of SARA”: ibid.
77 Vancouver Island Peace Society v Canada, [1992] 3 FC 42 at 51, 53 FTR 300. See also
Jason MacLean & Chris Tollefson, “Climate-Proofing Judicial Review After Paris:
Although experts and stakeholders have long criticized the inadequate
role of science in Canadian federal EA regimes, in recent years these
concerns are increasingly being echoed by the broader Canadian public.
A series of public polls and engagements have shown EA to be a priority
and demonstrated that there are significant concerns about the process
of environment-related decision making and the underlying science that
is used to support these decisions. A 2017 nationally representative poll
conducted by Nanos Research found that half of Canadians felt that the
federal government was doing “a poor or very poor job of building public
confidence in energy decision-making”;78 only 17% felt it was doing a
good or very good job. Managing cumulative effects was also top of
mind, as 80% of Canadians agreed or somewhat agreed that there
needed to be better management of the cumulative effects generated by
multiple projects.79 Another study found that “only 33% felt that the
consideration of science was working well” in the federal environmental
assessment process under CEAA 2012.80 The same study found that the
most common choices about improving the federal EA process
emphasized basing decisions on science, facts, and evidence (31%, n =
189), and the importance of public participation and consultation (27%,
n = 167) and credibility, independence, and lack of bias and influence
(19%, n = 113).81
Judicial Competence, Capacity, and Courage” (2018) 31:3 J Envtl L & Prac 245 at
78 Nanos Research, “Canadians More Negative than Positive about Energy Decision-
Making(2017) at 2, online (pdf ): University of Ottawa <
79 See Nanos Research, supra note 78 at 3.
80 Jacob et al, supra note 21 at 523.
81 Ibid.
A January 2018 NRG Research Group poll also revealed that some
Canadians are concerned with how EA processes are balancing the
different sectors of Canadian society. This nationally-representative
poll82 of 1,000 participants asked about public perceptions of EA
processes. When presented with a list of options of which social sector
currently had the most influence in EA decisions, 32% felt the
government was most influential, followed by 22% for industry lobby
groups. Few participants considered the most influential sectors to be
environmental lobby groups (10%), Indigenous peoples (9%), or the
public (5%); 18% thought that influence was distributed evenly.83
However, when asked which social sector should have the most influence
over EA decisions, 46% replied that influence should be equal between
groups, followed by the public having the most influence (26%).84 Only
2% felt industry lobby groups should have the most influence.85
Furthermore, when participants were asked whether EA decisions
should be based primarily on fairness (defined as “[e]veryone who is
involved gets a say, especially those most directly impacted”),
thoroughness (defined as “[a] detailed, patient process of gathering all
information and weighing the decision”), or efficiency (defined as
82 NRG Research Group, “January 2018 National Omni Poll Y2Y Results” (26 January
2018), online (pdf ): Yellowstone to Yukon Conservation Initiative <
publications/nrg-research-group-2018-poll.pdf>. The poll methodology proceeded
as follows (described at 3): “[a] total of 1000 interviews were conducted from a
randomly generated list of residential landline and wireless phone numbers for
Canadian residents. Data collection was conducted from NRG Research Group’s call
centre in Winnipeg, Manitoba from January 10 to the 17th, 2018. The results of this
study are accurate +/- 3.2%, 19 times out of 20. The survey questions were
developed by Y2Y staff with some assistance from NRG research professionals. The
questions were translated as the survey was fielded in both official languages.”
Regional quotas were set including Atlantic; Quebec; Ontario;
Manitoba/Saskatchewan; Alberta and British Columbia; and the northern
territories. Final data were “weighted to accurately reflect the age-gender population
distribution of Canada based on the 2016 Census data.”
83 Ibid at 6.
84 Ibid at 7.
85 Ibid.
“[d]ecision-making happens quickly, with deadlines to provide investor
confidence”), 45% chose fairness, 37% chose thoroughness, and only
14% chose efficiency.86 Selection of efficiency was particularly low among
people in British Columbia (9%) and Atlantic Canada (7%),87 regions
which have both been recently affected by controversial reviews of large
energy-related projects conducted under CEAA 2012. Thus, this poll
showed that many Canadians believe that fairness and thoroughness are
more important than efficiency and are concerned that industry is
exerting undue influence on EA processes.
Many Canadians participated in the Expert Panel’s consultation
processes through a variety of means, including in-person appearances,
written submissions, and posts to an online portal.88 Jacob et al. evaluated
421 unique written submissions to the Expert Panel and found that the
vast majority (87%) mentioned one or more of the five components for
strong science in EA law (see Part III).89 Of the contributors to the
consultation who mentioned 1 or more of the 5 components, over 90%
were in favour of strengthening the component(s).90 When split by
sector, support for stronger science was highest among Indigenous
groups, non-governmental organizations, and individuals/academics.91
Industry groups and government bodies and agencies also supported
stronger science, but they showed greater support for open science,
cumulative effects, and transparent decision making , with much less
support for greater scientific rigour or independence. Thus, most written
86 Ibid at 8.
87 Ibid.
88 See Jacob et al, supra note 21 at 514.
89 See ibid at 517.
90 See ibid.
91 Support was higher as compared to the other two sectors (government
bodies/agencies and industry/industry associations) examined in the study. The
study evaluated all written submission to the Expert Panel Review of Environmental
Assessment Processes, interpreting and categorizing them according to explicitly
expressed support for or against five components of stronger science in impact
assessment. See ibid at 520.
submissions to the Expert Panel expressed a need to strengthen the
scientific basis of EA reform, with the exception of industry groups,
which expressed hesitation to strengthen the scientific rigour or
independence of EA.92
The Expert Panel consultations were accompanied by a voluntary,
government-led (nonrepresentative) questionnaire called Choicebook,
which received 2,673 responses.93 Nearly half of Choicebook
respondents felt EA processes should “completely” address Canada’s
climate change commitments.94 Nielsen et al. also conducted an online
questionnaire with 1,429 participants on regulatory environmental and
regulatory reviews.95 This questionnaire asked people to rank the top
three elements to consider (of eight) when making environmental
regulatory decisions. The top-ranked element was “[s]cience, facts and
evidence have been used to support decisions” (74%), and the second
and third-ranked elements were “[e]nvironmental benefits/impacts have
been considered” (66%) and “[e]xpert knowledge/input has been
gathered and considered” (42%).96 Only 25% of respondents selected
“[e]conomic benefits/impacts have been considered” as one of their
three top-ranked concerns.97
EA practitioners themselves (generally, consultants hired to conduct
scientific studies associated with EA requirements) have been surveyed
about science in global EA processes. In a survey of 344 members of the
International Association for Impact Assessment, 99% of respondents
“indicated that an effective IA process must include a scientifically
92 See ibid at 522.
93 CEAA, Building Common Ground, supra note 62.
94 Ibid at 104.
95 Nielsen, Delaney + Associates & Publivate, "Review of Canada’s environmental and
regulatory processes: Questionnaire report (Final Draft)" (Prepared for the
Government of Canada, 23 December 2016).
96 Ibid at 36.
97 Ibid.
credible report”.98 An international survey of both EA scholars and
practitioners found that many EA scholars were dissatisfied with the
quality of science in EA, particularly as it relates to approaches in
impact prediction.99
Based on these results, there seems to be a broad public mandate to
update the EA law to include the components necessary to ensure that
evidence is appropriately gathered and considered. Thus, there is broad
public support of the government’s own stated intentions to improve the
scientific and evidentiary basis of the federal EA regime.
Canada has long been considered in the forefront of both criticism of
science in EA and for pushing technical advancement.100 Scientific
guidelines for EA practice have been established in Canada for decades,
first cemented by the landmark investigation of Beanlands and
Duinker101 and continuing until the present. However, the majority of
the principles set forth by the academic and scientific communities have
not been enshrined in EA law or practice.102
98 Ang us Morrison-Saunders & Barry Sadler, The Art and Science of Impact
Assessment: Results of a Survey of IAIA Members” (2010) 28:1 Impact Assessment
& Project Appraisal 77 at 79.
99 Jie Ma, Peter Duinker & Tony Walker, “Scholar and Practitioner Views on the
Quality of Science in Environmental Assessment” (Poster delivered at the
International Association for Impact Assessment conference, Montreal, April 2017),
online (pdf ): <
100 See Federal Environmental Assessment Review Office, Environmental Impact
Assessment in Canada, by WJ Couch, JF Herity & RE Munn, Occasional Paper No 6
(Toulouse: Federal Environmental Assessment Review Office, 1981) at 24.
101 Gordon E Beanlands & Peter N Duinker, An Ecological Framework for
Environmental Impact Assessment in Canada (Halifax: Institute for Resource and
Environmental Studies, Dalhousie University & Federal Environmental Assessment
Review Office, 1983).
102 For a current overview of the state of biophysical science in EA, see MacKinnon,
Duinker & Walker, supra note 9. The textbook describes in detail modern areas of
study and methods of application for rigorous biophysical science in EA, including
In this section, we do not discuss the technical applications of science
in EA, but rather the regulatory conditions of an EA regime under
which science and evidence can flourish or be discarded. We use five
discrete components necessary for strong science to be included in EA,
as defined by Jacob et al. and discussed further by Westwood et al.103
These components are not direction for the scientific undertakings
associated with EA, but rather elements that need to be included in a
regime to ensure that any scientific works or evidence-based decision
making made under that regime meet the standards associated with
scientific inquiry.104
Open access to information is increasingly the standard of modern
scientific publishing, including government-funded publishers. Canada’s
Tri -Agency, which represents the three federal granting agencies that
advance research, training, and innovation, recognizes the social
importance of open information:
Societal advancement is made possible through widespread and
barrier-free access to cutting-edge research and knowledge, enabling
researchers, scholars, clinicians, policymakers, private sector and
not-for-profit organizations and the public to use and build on
this knowledge.105
ecosystem resilience, ecosystem complexity, thresholds, accounting for biodiversity,
landscape ecology, climate change, and ecosystem services.
103 Jacob et al, supra note 21 at 515–16; Westwood et al, supra note 72 at 12.
104 For a discussion of standards associated with scientific inquiry, see “Principles”,
online: Science Integrity Project <>. The Science Integrity Project
engaged the multisectoral wisdom of 75 Canadian leaders to define aspects of
integrity in scientific theory and practice. See “Home”, online: Science Integrity
Project <>.
105 Government of Canada, “Tri-Agency Open Access Policy on Publications” (last
modified 21 December 2016), online: <
Data that meet standards of transferability and generalizability106 as well
as reproducibility107 are necessary to ensure research can be
independently verified.108 To be truly open, information used in
assessment, including raw data, needs to be free, described (for example,
accompanying metadata), curated (for example, hosted and maintained),
and publicly available (for example, accessible, usually via website). An
EA regime that meets open-access standards would freely publish all data
and reports associated with the planning, assessment, and
learning/adaptive management phases of projects, as well as publish
reports that describe EA decisions and how scientific information was
incorporated or considered in the decision-making phase. This database
would be available in perpetuity. Consideration for private individual,
community-held, or other sensitive knowledge including scientific
information (for example, locations of species targeted for illegal trade)
can be accommodated within an open-information framework.
106 We adopt a definition given in Michael Drummond et al, “Transferability of
Economic Evaluations Across Jurisdictions: ISPOR Good Research Practices Task
Force Report” (2009) 12:4 Value Health 409 who state that their data “were
generalizable if they applied, without adjustment, to other settings. On the other
hand, data were transferable if they could be adapted to apply to other settings” at
107 As reviewed in Steven N Goodman et al, in “What does research reproducibility
mean?” (2016) 8:341, reproducibility does
not have one single definition. We adopt the definition “[r]eproducibility refers to
the ability of a researcher to duplicate the results of a prior study using the same
materials and procedures as were used by the original investigator” given in Kenneth
Bollen et al, “Social, Behavioral, and Economic Sciences Perspectives on Robust and
Reliable Science: Report of the Subcommittee on Replicability in Science Advisory
Committee to the National Science Foundation Directorate for Social, Behavioral,
and Economic Sciences” online (pdf ): National Science Foundation <
sbe/AC_Materials/SBE_Robust_and_Reliable_Research_Report.pdf> at 3.
108 Marcus R Munaet al, “A Manifesto for Reproducible Science” (2017) 1:1 Nature
Human Behaviour 1; Marcia McNutt, “Journals Unite for Reproducibility” (2014)
346:6210 Science 679. For discussion on procedures to ensure data meet these
standards, see Ethan P White et al, “Nine Simple Ways to Make It Easier to (Re)use
Your Data” (2013) 6:2 Ideas in Ecology & Evolution 1.
Cumulative effects assessment involves considering the impacts of a
project at the broad spatial and temporal scales encompassing past,
present, and future infrastructure development or land-use change.109 In
principle, the assessment of cumulative effects should allow for insight
into how proposed projects contribute towards exceeding large-scale
thresholds (for example, total greenhouse gas emissions, amount of
habitat fragmentation, and concentrations of chemicals in water flows).
Woodland caribou, for example, suffer substantial negative impacts when
a disturbance affects more than 65% of their habitat.110 Thus, cumulative
effects assessment could help provide a broader context for the
evaluation of proposed projects.
Cumulative effects assessment in Canada has been deemed impotent
in practice for several reasons.111 Often, proponents sidestep a detailed
cumulative effects assessment by arguing that their projects will not have
significant residual effects.112 Alternatively, in some cases, proponents
argue that landscapes are so greatly disturbed that an additional project
(for example, with a disturbance footprint of <1% of the regional study
area) should have a negligible effect on wildlife.113 In addition, for most
wildlife species, and many other environmental components of EA, such
109 See A John Sinclair, Meinhard Doelle & Peter N Duinker, “Looking Up, Down, and
Sideways: Reconceiving Cumulative Effects Assessment as a Mindset” (2017) 62
Environmental Impact Assessment Rev 183 at 184.
110 See Environment Canada, Scientific Assessment to Inform the Identification of Critical
Habitat for Woodland Caribou (Rangifer tarandus caribou), Boreal Population, in
Canada: 2011 Update (Ottawa: Environment Canada, 2011) at 14.
111 See Peter N Duinker & Lorne A Greig, “The Impotence of Cumulative Effects
Assessment in Canada: Ailments and Ideas for Redeployment” (2006) 37:2
Environmental Management 153 [Duinker & Greig, “Ailments and Ideas”].
112 See ibid at 15556.
113 See Cathryn Clarke Murray et al, The Insignificance of Thresholds in
Environmental Impact Assessment: An Illustrative Case Study in Canada” (2018)
61:6 Environmental Management 1062 at 1067.
thresholds have not been established,114 resulting in cumulative effects
assessments that are at best incomplete and, more often, avoided
completely. Such quantitative thresholds are rarely used in environmental
impact assessments and, when they are, the negative impacts are often
argued to be nonsignificant.115
Cumulative effects assessments, when included, are also often
narrowly scoped.116 Cumulative effects theoretically encompass the
often-compounding upstream and downstream consequences of resource
production and use.117 For energy projects in particular, the research on
cumulative effects completed as part of a project EA has been found
inadequate to address the challenges of climate change, which requires an
honest and full accounting of not just project emissions, but also those
generated by predictable upstream and downstream processes (for
example, additional extraction or combustion by end users).118 As is being
increasingly recognized, appropriately addressing climate change and
114 See Malcolm L Hunter Jr et al, “Thresholds and the Mismatch between
Environmental Laws and Ecosystems” (2009) 23:4 Conservation Biolog y 1053 at
1053–54. See generally Andrew J Huggett, “The Concept and Utility of ‘Ecological
Thresholds’ in Biodiversity Conservation” (2005) 124:3 Biological Conservation
115 See Murray et al, supra note 113 at 1063, 1067.
116 See Duinker & Greig, “Ailments and Ideas”, supra note 111 at 158.
117 See Michael Burger & Jessica Wentz, “Downstream and Upstream Greenhouse Gas
Emissions: The Proper Scope of NEPA Review” (2017) 41:1 Har v E nvtl L Rev 109
at 1.
118 See e.g. Robert B Gibson, Meinhard Doelle & A John Sinclair, “Fulfilling the
Promise: Basic Components of Next Generation Environmental Assessment” (2016)
29 J Envtl L & Prac 257. See also Stephanie J Green et al, “Oil Sands and the Marine
Environment: Current Knowledge and Future Challenges” (2017) 15:2 Frontiers in
Ecology & Environment 74 at 79–80, Elizabeth M Brown, “The Rights to Public
Participation and Access to Information: The Keystone XL Oil Sands Pipeline and
Global Climate Change under the National Environmental Policy Act” (2012) 27:2
J Envtl L & Litig 499 at 517–518; Burger & Wentz, ibid at 175; Wendy J Palen et al,
“Consider the Global Impacts of Oil Pipelines” (2014) 510 Nature 465 at 466. For a
detailed discussion on the state of climate science in environmental assessment, see
MacKinnon, Duinker & Walker, supra note 9 at 51–54.
other cumulative effects will require provisions for individual project
EAs to be nested within regional and strategic efforts that can evaluate a
project against values and effects thresholds at larger scales.119
Frameworks for cumulative effects assessment have been developed
for certain systems, such as watersheds.120 Although cumulative effects
assessment has been required under federal law since 1995,121 it has
largely been confined to the context of individual projects and unevenly
applied.122 In the context of Canada’s oil sands region, EAs for individual
projects have often repeated scientific work already completed for other
projects. Although some independent studies have examined regional
cumulative effects impacts,123 few studies as part of EAs have addressed
the outcomes of previous developments, or provided information on
regional ecological capacities that could indicate how a project
contributes to regional, national, or global limits.124
119 See Carissa Schively Slotterback, “Addressing Climate Change in State and Local
Environmental Impact Analysis” (2011) 54:6 J Environmental Planning &
Management 749 at 762; Vong Sok, Bryan J Boruff & Angus Morrison-Saunders,
Addressing Climate Change Through Environmental Impact Assessment:
International Perspectives from a Survey of IAIA Members” (2011) 29:4 Impact
Assessment & Project Appraisal 317 at 324; Takafumi Ohsawa & Peter Duinker,
“Climate-Change Mitigation in Canadian Environmental Impact Assessments”
(2014) 32:3 Impact Assessment & Project Appraisal 222 at 230; Green et al, supra
note 118 at 80; Nancy Shackelford et al, “Threats to Biodiversity from Cumulative
Human Impacts in One of North Americas Last Wildlife Frontiers” (2017) 32:3
Conservation Biology 672 at 678.
120 See MacKinnon, Duinker & Walker, supra note 9 at 8990.
121 See CEAA 1992, supra note 46, ss 16(1)(a), 19(5).
122 See Duinker & Greig, “Ailments and Ideas”, supra note 111 at 158.
123 See e.g. Shackelford et al, supra note 119; Mary Toews, Francis Juanes & A Cole
Burton, “Mammal Responses to the Human Footprint Vary across Species and
Stressors” (2018) 217 J Environmental Management 690.
124 See Robert (Bob) Connelly, “Canadian and International EIA Frameworks as They
Apply to Cumulative Effects” (2011) 31:5 Environmental Impact Assessment Rev
453 at 545; Green et al, supra note 118 at 80.
Scientific evidence is a key part of public policy decisions,125 but not all
information is produced according to the same standards. A great deal of
scientific data are collected during the information-gathering as well as
recursive phases of EA. These data are collected and analyzed using a
variety of methods including field studies, mathematical predictions of
impacts, and meta-analyses. The methods used should be the best
available.126 However, p ast practices have been criticized as incomplete
for including inferences and assumptions without validation or testing,
for example.127 In addition, when scientific information essential to
evaluating environmental risk is lacking, this absence is often
underemphasized in EA.128 It is a truism that the absence of information
should not be equated to an absence of risk. In the context of Albertas
oil sands development, for example, an expert review commissioned
by the Royal Society of Canada found that the rigour and
content of economic analyses associated with EA reviews were
inconsistent and systemically underestimated the costs associated with
proposed projects.129
Project proponents have also been found to consistently
undermeasure environmental impacts, including pollution,130 habitat
125 See Gosselin et al, supra note 21 at 16–17.
126 See “Principles”, supra note 104. However, it should be noted that, of the many calls
for environmental decision making to be based on the “best available science”, few
definitions of what this may entail have been offered. But see Darren S Ryder et al,
“Defining and Using ‘Best Available Science’: A Policy Conundrum for the
Management of Aquatic Ecosystems” (2010) 61:7 Marine & Freshwater Research
127 See J Treweek, “Ecology and Environmental Impact Assessment” (1996) 33:2 J
Applied Ecology 191 at 193.
128 Murray et al, supra note 113 at 1066.
129 See Gosselin et al, supra note 18 at 250.
130 See Erin N Kelly et al, “Oil Sands Development Contributes Polycyclic Aromatic
Compounds to the Athabasca River and its Tributaries” (2009) 106:52 Proceedings
National Academy Sciences United States of America 22346.
loss,131 and emission of toxic compounds.132 They have also
undermeasured benefits of ecosystem services,133 such as the productivity
of watersheds. For example, the proponents of the Pacific NorthWest
Liquified National Gas terminal project concluded that the proposed
development site had “low habitat productivity and value”.134 However,
this directly contradicted field studies performed in the 1970s by
government and private science135 as well as recent independent science
programs,136 which consistently identified the proposed development site
as having the most productive salmon habitat in the estuary.
In theory, evidence of all kinds collected during the
information-gathering phase should be used in decision making. Clarke
Murray et al. suggested that governments require “clear and defensible
131 See Rebecca C Rooney, Suzanne E Bayley & David W Schindler, “Oil Sands Mining
and Reclamation Cause Massive Loss of Peatland and Stored Carbon” (2012) 109:13
Proceedings National Academy Sciences United States of America 4933.
132 See Shao-Meng Li et al, “Differences between Measured and Reported Volatile
Organic Compound Emissions from Oil Sands Facilities in Alberta, Canada” (2017)
114:19 Proceedings National Academy Sciences United States of America E3756.
133 Ecosystem services are the tangible and intangible benefits that people receive from
nature, including food, fibre, wood, climate regulation, crop pollination, aesthetic
values, and more.
134 Stantec Consulting Ltd, “Report on Fish and Fish Habitats: Baseline
Characterization of the Fish and Fish Habitats on Flora Bank and Adjacent
Habitats” (4 May 2015) at v.
135 See Wright Engineers Limited, "Port Development Prince Rupert B.C." (report
commissioned by the National Harbours Board, August 1972); Canada, Fisheries
and Marine Service, A Biological Assessment of Fish Utilization of the Skeena River
Estuary, with Special Reference to Port Development in Prince Rupert, by RJ Higgins
& WJ Schouwenburg (Vancouver: Department of the Environment, 1973) at 60;
Northcoast Environmental Analysis Team, "Prince Rupert Bulk Loading Facility
Phase 2: Environmental Assessment of Alternatives" (report commissioned by the
Federal-Provincial Joint Committee on Tsimpsean Peninsula Port Development,
1975), volume 1.
136 See Charmaine Carr-Harris, Allen S Gottesfeld & Jonathan W Moore, “Juvenile
Salmon Usage of the Skeena River Estuary” (2015) 10:3 PLoS One 1 at 1314;
Moore et al, supra note 56 at 1.
significance determinations,”137 including using quantitative thresholds
and making them legally enforceable and accountable. In the next
iteration of Canada’s EA regime, significance testing appears destined to
take a back seat to decision making based on whether a project meets a
test of sustainability and is in the public interest (see Part IV). In their
review of environmental impact assessments, the Royal Society of
Canada found that socioeconomic and biophysical measurements were
inadequate to support the determination that a project is in the public
interest.138 As such, standards for collection and inclusion of evidence
must be set to ensure that evidence is sufficient for decision making.
Multiple sources and types of information are used in the decision-
making phase of EA; scientific evidence is just one component, and is
used in conjunction with economic, social, and political considerations.
In past EA regimes, the lack of transparency in decision making was
highly criticized for obscuring the public’s ability to understand if and
how scientific evidence was considered and for eliminating the
opportunity for government accountability.139
The erosion of public trust undermines current and past EA
regimes.140 In concert with concerns over project approval, this situation
of low confidence can lead to rising social unrest and political
interventions.141 In particular, developments related to Alberta’s oil sands,
though formally approved by federal EA processes, have received
widespread criticism for failing to appropriately consider large gaps in
137 See Murray et al, supra note 113 at 1062.
138 See Gosselin et al, supra note 21 at 257.
139 See ibid at 7–8; Expert Panel on the Modernization of the National Energy Board,
supra note 21 at 13.
140 See CEAA, Building Common Ground, supra note 62 at 1; Expert Panel on the
Modernization of the National Energy Board, supra note 21 at 32.
141 See Mark Winfield, “Decision-Making, Governance and Sustainability: Beyond the
Age of ‘Responsible Resource Development’” (2016) 29 J Envtl L & Prac 129 at
scientific information, for lack of Indigenous consent, and for
propagating opaque decision making.142 As such, decision making must
be made more transparent, including providing stakeholders and the
public with the rationale for project decisions and detailed explanations
regarding how scientific evidence was considered.143
In the context of EA, “independence” refers to the relationship between
project proponents and the parties collecting, synthesizing, or presenting
evidence under the expectation that such information is unbiased, as well
as to the varied relationships between proponents, regulators, and
decision makers. Under the current EA regime in Canada, project
proponents often directly hire individuals or companies to collect and
present social and environmental information regarding potential
project impacts (a model often referred to as professional reliance).
Subsequently, these assessments are reviewed by government bodies,
some independent (for example, the National Energy Board [NEB]) and
some not (for example, the Canadian Environmental Assessment
Agency), who then make nonbinding recommendations regarding
project approval. This system, used in both federal and provincial
regimes, has come under substantial scrutiny, and the lack of
independence between these individuals and companies has been
identified as a serious weakness of the current EA system, including by
the Expert Panel (as noted above).144
The current system means that project proponents may exert direct
(for example, contractual) or indirect influence on the groups they hire
to collect and present EA materials. In some cases, this professional
142 See e.g. Green et al, supra note 118; Palen, supra note 118.
143 See Expert Panel on the Modernization of the National Energy Board, supra note 21
at 13; CEAA, Building Common Ground, supra note 62 at 100.
144 See ibid.
reliance may compromise the scientific integrity of EAsprevious
investigations have found that private consultants hired to create EA
reports were pressured by proponents to minimize environmental risks
of projects.145 At the provincial level, in British Columbia, the system of
professional reliance has come under intense scrutiny for causing an
inappropriate delegation of decision-making authority to organizations
and individuals with no public accountability.146 A government-ordered
review of this system made numerous recommendations, including the
authority for agencies to obtain and question information provided by
professionals or proponents, promoting professional independence,
improving public access to and transparency of professional
documentation and rationale, and improving baseline data.147
Independence between proponents and decision makers is also
relevant to the integrity of EA. In one prominent example of the need to
preserve independence, NEB board members recused themselves from
review of the TransCanada Energy East pipeline project following
revelations that NEB board members and senior officials had engaged in
145 See e.g. Tonya Smith et al, “Oversight At Risk: The State of Government Science in
British Columbia; An Assessment of Research Capacity, Communication and
Independence in British Columbia Provincial Ministries and Departments” (April
2017) at 19–20, online (pdf ): Evidence for Democracy <
sites/default/files/reports/oversightatrisk.pdf>; Michael Cleland & Monica
Gattinger, “System Under Stress: Energy Decision-Making in Canada and the Need
for Informed Reform” (March 2017) at 27, online (pdf ): <
cleland_gattingerfnl_march2017.pdf>; Mark Haddock, Professional Reliance and
Environmental Regulation in British Columbia (Victoria: Environmental Law
Centre, 2015) at 48–54; Beanlands & Duinker, supra note 101; Expert Panel on the
Modernization of the National Energy Board, supra note 21 at 35; Anne Casselman,
“Who is Watching B.C.’s Environmental Watch Dogs?”, BC Business (14 July 2015),
online: <>.
146 See Haddock, ibid at 31, 52; Smith et al, ibid at 7.
147 See British Columbia, Professional Reliance Review: The Final Report of the Review of
Professional Reliance in Natural Resource Decision-Making, by Mark Haddock
(Victoria: Ministry of Environment and Climate Change Strategy, 18 May 2018) at
a private meeting with a company representative (and former provincial
premier).148 In another example, public servants were instructed “to give
cabinet a legally-sound basis to say ‘yes’” to the proposed Trans
Mountain Expansion Project, while government was ostensibly
consulting in good faith with First Nations and had not yet reached a
final decision.149
As one of us has described elsewhere, the IAA is largely a “bulked-up
versionof the CEAA 2012.150 Most obviously, the IAA is still primarily
designed around a designated project list, with peripheral provisions for
projects on federal lands, as well as regional and strategic assessments.
The main differences between the IAA and the CEAA 2012 include a
legislated planning phase151 and an expansion of the scope of assessments,
including a project’s social, economic, and health effects.152 In addition,
as noted above, rather than focusing exclusively on a project’s “significant
adverse environmental effects”,153 the federal government will also have
148 See Mike De Souza, “Pipeline Regulator Gets Pounded with Complaints for Being
Secretive”, National Observer (21 February 2018), online: <www.nationalobserver
.com>; Mike De Souza, “Pipeline Panel Recuses Itself, Chairman Reassigned from
Energy East Duties”, National Observer (9 September 2016), online: <www.national>.
149 Mike De Souza, “Government Insiders Say Trans Mountain Pipeline Approval Was
Rigged”, National Observer (24 April 2018), online: <
150 Martin Z Olszynski, “A(nother) New Federal Regime for Assessing Interprovincial
Pipeline Projects: The Proposed Impact Assessment Act (2018) 6:2 Energ y
Regulation Q 11 at 11 [Olszynski, “A(nother) New Federal Regime”].
151 See IAA, supra note 73, cls 1020.
152 See ibid, cl 2 (“effects”).
153 CEAA 2012, supra note 19, s 4(1)(a).
to consider its contribution to “sustainability”154 and whether it
contributes to or hinders Canada’s ability to meet its climate change
commitments.155 All three of these factors (that is, the adverseness of any
effects, sustainability, and climate change) will be mandatory
considerations as part of the government’s “public interest”
determination with respect to a given project, which must be
accompanied by a set of reasons that demonstrates their consideration in
the decision-making process.156
With respect to science, upon the introduction of the IAA in
February 2018, it could safely be said that the IAA generally failed to
address the science-based shortcomings identified in the course of the
past two years of study and consultations. Although the legislation
contains five new references to science or scientific information, these do
not reflect the clearly defined recommendations made by the
government-appointed Expert Panel; these references do not even confer
the concrete roles for science found in both CEPA 1999 or SARA.157 The
preamble of the IAA refers to the integration of “scientific information
and the traditional knowledge of the Indigenous peoples of Canada,158
while the “purposes” clause refers to ensur[ing] that an impact
assessment takes into account scientific information.159 Scientific
information is also referred to twice in the context of the internet
registry160 and once in relation to the mandatory expert advisory panel.161
154 IAA, supra note 73, cls 22(h), 63(a). Sustainability is defined in clause 2 as “the
ability to protect the environment, contribute to the social and economic well-being
of the people of Canada and preserve their health in a manner that benefits present
and future generations”.
155 See ibid, cls 22(i), 63(e).
156 See ibid, cl 63(a)–(b), (e).
157 See CEPA, 1999, supra note 25 and SARA, supra note 30.
158 IAA, supra note 73, Preamble.
159 Ibid, cl 6(1)(j).
160 See ibid, cl 105(2)(d).
161 See ibid, cl 157(1).
While these references certainly bolster the case for more rigour in the
scientific aspects of impact assessment (as part of a purposive and
contextual interpretation of the legislation),162 in and of themselves they
are of relatively limited use. As further discussed below, the IAA contains
no provisions with respect to open science (that is, a centrally managed
public repository of all impact assessment data), standardized
methodologies, or peer review.
Shortly prior to Bill C-69’s release, Westwood et al. convened 25
national experts on EA. In their report, “Strong Foundations: Recap and
Recommendations from Scientists Regarding the Federal Environmental
and Regulatory Reviews” (“Strong Foundations”),163 they recommended
15 scientific priorities and outstanding gaps to be addressed in the new
Act (see Table 1). After Bill C-69 was introduced, the experts graded
whether these priorities and gaps were criteria indeed addressed by the
legislation. After combining two similar criteria together for a total of
14, they found that seven criteria were not included in the proposed IAA
at all, seven were partially met, and no criteria were fully realized (see
Table 1).164 Another report card by a coalition of leading Canadian
environmental organizations also found the proposed IAA lacking on
meeting many expert recommendations, including some relating
to science.165
162 “Today there is only one principle or approach, namely, the words of an Act are to be
read in their entire context and in their grammatical and ordinary sense
harmoniously with the scheme of the Act, the object of the Act, and the intention of
Parliament”: Elmer A Driedger, Construction of Statutes, 2nd ed (Toronto:
Butterworths, 1983) at 87, cited with approval by the SCC in Re Rizzo & Rizzo
Shoes Ltd, [1998] 1 SCR 27 at para 21, 154 DLR (4th) 193.
163 See supra note 77.
164 See “How Does the Impact Assessment Act, Bill C-69, Stack Up on Science?”, online
(pdf): Yellowstone to Yukon Conservation Initiative <
reportcard-v2.pdf> [“How Does the Impact Assessment Act Stack Up?”].
165 See West Coast Environmental Law Association et al, “Making The Mid-Te r m
Grade: A Report Card on Canada’s Proposed New Impact Assessment Act” (March
2018), online (pdf ): We st Coast Environmental Law <
Following the IAAs review by the Standing Committee on
Environment and Sustainable Development (the “Committee”),
however, there is now one provision that has the potential to address a
considerable part of the current regime’s science deficit. Introduced by
Member of Parliament and Leader of the Green Party of Canada,
Elizabeth May, and unanimously passed by the Committee, a new
subsection 6(3) will require the government to adhere to the principle of
scientific integrity:
The Government of Canada, the Minister, the Agency and federal
authorities must, in the administration of this Act, exercise their powers
in a manner that adheres to the principles of scientific integrity, honesty,
objectivity, thoroughness and accuracy.166
Although a full discussion of this provision’s potential implications is
beyond the scope of this article, we offer the following preliminary
observations.167 First, and perhaps obviously, this clause is directly aimed
at government actors only; it will not apply to proponents and
consultants (whether as individuals or companies). As such, it is arguably
a half measure only. On the other hand, bearing in mind that, under the
proposed IAA (as under the current CEAA 2012), government scientists
and analysts will be tasked with reviewing all privately generated data
and impact statements, subsection 6(3) can be expected to have at least
an indirect upward (in terms of quality) effect on nongovernment actors
participating in the impact assessment process. Second, “scientific
integrity” is a common term in this context. Having been
operationalized in the United States for some time,168 American law
166 IAA, supra note 73, cl 6(3) [emphasis added].
167 In the interests of full disclosure, several of the authors of this article recommended
that “scientific integrity” be included in the IAA in briefs and appearances before the
Standing Committee on Environment and Sustainable Development.
168 See e.g. US, Department of the Interior & US Geological Survey, “Scientific
Integrity” (23 July 2015), online: USGS <
25.html>, which requires US Geological Survey employees to “communicate the
results of scientific activities clearly, honestly, objectively, thoroughly, accurately, and
in a timely manner.” See also 40 CFR § 1502.24 (2012) [emphasis added]:
professor Holly Doremus lists “intellectual honesty, rigorous reasoning,
and unclouded judgment” as the core tenets of scientific integrity.169 Each
of these tenets is reflected in subsection 6(3) (honesty, thoroughness,
and objectivity, respectively).170 This material is bound to inform this
provisions interpretation; indeed most of it was cited by Ms. May as she
introduced the amendment in Committee.171 Third, and finally, the
explicit reference to “objectivity” should give future courts cause for
pause before re-embracing their current subjective approach to CEAA
2012. The entire provision should also lay to rest any remaining judicial
reluctance to engage in the substantive review of the science of impact
assessments (for example, in the context of future litigation). Setting
aside this provision, the remainder of this article summarizes the key
findings of the analyses based on the 14 recommendations in Strong
Foundations” with regards to the degree to which the proposed IAA
aligns with key scientific principles of effective EA.172
Agencies shall insure the professional integrity, including scientific integrity, of the
discussions and analyses in environmental impact statements. They shall identify any
methodologies used and shall make explicit reference by footnote to the scientific and other
sources relied upon for conclusions in the statement. An agency may place discussion of
methodology in an appendix.
See Idaho Sporting Congress v. Thomas (1997) 137 F.3d 1146, USCA 9th Cir.,
wherein the Court of Appeals interpreted these regulations as requiring “that the
public receive the underlying environmental data from which a Forest Service expert
derived her opinion” (at para 10).
169 Holly Doremus, “Scientific and Political Integrity in Environmental Policy” (2008)
86:7 Tex L Rev 1601 at 1623.
170 See IAA, supra note 73, cl 6(3).
171 See House of Commons, Standing Committee on Environment and Sustainable
Development, Evidence, 42-1, No 112 (9 May 2018) at 9–10 (Hon Elizabeth May).
172 For detailed discussion of science and the text of the proposed law prior to the
amendments made in Committee, see Alana Westwood & Aerin Jacob, “Eva luati ng
the Role of Science in the Proposed Impact Assessment Act” (2 May 2018), online
(pdf): Yellowstone to Yukon Conservation Initiative <
the-iaa-tech-report-report-card.pdf/>; Aerin Jacob & Alana Westwood, Better
Rules Need Better Science: Submission to the Standing Committee on Environment
and Sustainable Development Regarding the Role of Science in Impact Assessment”
The proposed IAA does not fulfill standards for open information.
Although it requires that project notices and files be published on a
central website (the “Registry”), it provides for only summaries and there
are no requirements for fully open data.173 The Registry provisions are
essentially unchanged from the CEAA 2012174 and are full of
problematic qualifiers, for example, the Registry shall contain “(d) any
scientific information that the Agency receives from a proponent or
federal authority, or a summary of the scientific information and an
indication of how that information may be obtained”. 175 To deliver on open
information, the Registry files should match the Agencys internal
project files as set out in subsection 106(3), which must contain “any
report relating to the impact assessment; . . . . any records relating to the
design or implementation of any follow-up programs; and . . . any
records relating to the implementation of any mitigation measures.”176 In
addition, the text seems to indicate that project records will be
impermanent, as it only requires a project file be maintained on the
database until either the assessment is included, or follow-up activities
are completed.177 Simply put, the need for a central and public registry
with all project-related information, including raw data in a transferable
format to be held in perpetuity, has not been recognized.
Cumulative effects assessment may be improved in the IAA.
Whereas the CEAA 2012 made only passing reference to “[r]egional
[s]tudies”,178 the IAA contains considerably more detailed provisions
with respect to both regional and strategic assessments, including the
ability for anyone to request such assessments and a duty on the Minister
(6 April 2018), online (pdf ): Yellowstone to Yukon Conservation Initiative <
173 See IAA, supra note 73, cl 105(1)–(4).
174 See supra note 19, ss 79(1)–(4).
175 IAA, supra note 73, cl 105(2)(d) [emphasis added].
176 Ibid, cl 106(3)(b), (d)–(e).
177 Ibid, cl 106(1).
178 See supra note 19, ss 7377.
to respond, with reasons, within a prescribed time period.179 The current
government has already committed to carrying out a strategic assessment
with respect to climate change, releasing a discussion paper in June
2018.180 That being said, the decision as to whether to carry out regional
and strategic assessments remains discretionary, which undoubtedly
diminishes the prospects for such assessments.
It is also possible that the shift in legislation from a “significance test”,
which requires establishing a challenging threshold that is difficult to
justify, towards a “sustainability test” may improve consideration of
cumulative effects, including climate impacts in particular. As noted
above, climate change is now a factor that must be considered when
determining if a project is in the public interest. However, as noted
above, the proposed IAA maintains a focus on project-level assessments,
which may not be effective in ensuring that new projects help rather than
hinder Canada’s efforts to meet agreed-upon climate thresholds.181
With regards to scientific rigour, the proposed IAA does not
include explicit provisions for the peer review of science gathered during
the EA process, although, as noted above, a governmental adherence to
scientific integrity can be expected to have a positive effect on rigour
(and further provisions may be borne out in subsequent regulations to
the IAA). Generally speaking, monitoring activities appear to have been
left to proponents. The proposed IAA includes gender-based analysis
and community effects,182 indicating progression on methods in social
impact assessment. However, provisions supporting rigorous science for
natural ecosystems, species, or environmental quality generally do not
appear in the text of Bill C-69 itself. The one exception here may be
the reintroduction, also following Committee review, of “adaptive
179 See supra note 73, cls 9293, 95, 97(1).
180 See Government of Canada, “Discussion Paper: Developing a Strategic Assessment
of Climate Change” (last modified 1 June 2018), online: Strategic Assessment of
Climate Change <>.
181 See MacKinnon, Duinker & Walker, supra note 9 at 5253; Connelly, supra note
124 at 454.
182 See IAA, supra note 73, cl 22(1)(s).
management” with the important addition of the word “plan” (that is,
“adaptive management plan[s]”).183 Such plans are now referred to as
potential contents of Decision Statements under the IAA, with several
positive implications. First, while a clear definition of adaptive
management would be preferable, the addition of “plan” at least conveys
the idea that adaptive management is not an ad hoc process, or a matter
of adapting “on-the-fly”;184 rather, it is a deliberate and structured process
that requires some thought and planning. Second, as a part of Decision
Statements, such plans will be both enforceable and reviewable in court
rather then left to the whim of proponents. Coupled with a duty to
adhere to principles of scientific integrity, future applications of adaptive
management can be expected to be more rigorous.
Tr an sp a re n c y has been improved in the proposed IAA. There will be
requirements to publish reasons for decision making, including how
factors prescribed in decision making were considered.185 However, there
is no guidance in the proposed IAA itself for how trade-offs between
different factors are to be evaluated.
Under the previous regime, which used “significant adverse effects” as
the test for determining project approval, quantitative thresholds of
significance were rarely employed. To prevent the problems that plagued
the significance test186 from similarly affecting the new tests of
sustainability and public interest, there will need to be guidance for
quantitative thresholds or limits, or at least indication of a set of
coherent national values on science and the environment. No such
guidance exists within the proposed IAA at this time.
183 See ibid, cl 64(4)(b).
184 JB Ruhl & Robert L Fischman, “Adaptive Management in the Courts” (2010) 95:2
Minn L Rev 424 at 441.
185 See IAA, supra note 73, cls 6365.
186 See Murray et al, supra note 113 at 1067–69.
Ta b l e 1 : Scientific criteria recommended by Westwood et al.187 for inclusion in the proposed IAA and assessment by
experts of whether the criteria were met in Bill C-69.
Criteria Category of
Applicable phase of EA Met in
Planning Information
Assessments account for project
impact on climate change
X X X Partially
Assessments are “evidence-based,
adaptive, and regional”188
effects; scientific
X X X X Partially
“Funding . . . provided for intervenor
and stakeholder-led science”189
X X No
187 Supra note 72 at 1–2.
188 Ibid.
189 Ibid.
Provisions for open science and data
X X X Partially
Indigenous knowledge is included in
“the framework of a nation-to-nation
X X X Partially
Provisions for “rigorous, independent
peer review”191
Scientific rigour X X No
Assessments are “more
comprehensive, efficient, and
X Partially
Spatial and temporal scope of
assessment is expanded
X X No
Clear triggers for assessment and Scientific X No
190 Ibid.
191 Ibid.
192 Ibid.
impact thresholds that should not be
Established clear national values and
objectives for decision making,
requiring communication of
rationale behind decision making
Tr a n s p a r e n c y ;
X X X Partially
Precautionary principle “guide[s] the
assessment process from the
Independence X X Partially
“[B]udgetary commitments to
support federal science agencies”194
Scientific rigour X No (not
expected in
Assessments “contain commitments
to scientific integrity”195
Scientific rigour X X X No
193 Ibid.
194 Ibid.
“[A]ddress[es] issues of professional
Independence X X No
195 Ibid.
196 Ibid.
Independence has been in some ways improved in the proposed
IAA, and in other ways remains unchanged. Life cycle project regulators,
such as the NEB and the Canadian Nuclear Safety Commission, will
have a reduced role in assessment in the proposed IAA, carrying out their
duties as joint review panels rather than exclusively, as under the CEAA
2012.197 However, the proponent-funded science model is being
retained, which does not address concerns about conflicts of interest or
shielding organizations from public accountability. Thus, the scientific
basis of EA will remain funded by industry proponents and largely
hidden from public accountability.
In summary, although the proposed IAA addresses some of the
scientific shortcomings of EA in Canada, especially in its
post-Committee form, it lacks a strong commitment to science that
would enable robust, credible decision making in the public interest.
There is a long history of independent scientists and experts raising
concerns about the role of science in Canadian environmental decision
making and in the EA context, particularly. In recent years, this
dissatisfaction has spread to the public at large, which has voiced its
desire for a stronger scientific foundation for Canada’s federal
EA regime.
In this article, we focused on the components of a legal framework
that should be in place for science to be adequately considered in EA
processes and decision making. As is clear from the discussion in Part II,
the current CEAA 2012 regime, like its predecessors, suffers from a
197 See CEAA 2012, supra note 19, s 15; IAA, supra note 73, cl 50. See also Olszynski,
A(nother) New Federal Regime”, supra note 150. Bill C-69 also proposes to replace
the NEB with a new Canadian Energy Regulator, although its enabling legislation
appears largely unchanged from the NEB’s. See IAA, supra note 73 cls 51(2)–(3);
Nigel Bankes, “Some Things Have Changed but Much Remains the Same: The New
Canadia n Energ y Regulator” (15 February 2018), online (pdf ):
significant science deficit: information with respect to project effects,
including monitoring data, is not readily available; proponents routinely
rely on mitigation measures with little or no established effectiveness;
cumulative effects analysis is project focused and done poorly—if at
all—while regional assessment provisions remain unused. With respect
to the proposed IAA, although considerably improved at the Committee
stage, it falls well short of the science-related recommendations made by
the Expert Panel on EA. Importantly, environmental decision making is
governed not just by federal EA, but also by provincial EA or other
regulatory processes. There is a need for a strong scientific basis in these
different regimes as well. This was recognized by British Columbia in the
context of its review of the professional reliance model currently in place
in the province.
In this article, we did not discuss Indigenous knowledge, which has
an essential role, not only in informing EA processes and decisions, but
also in improving the relationship between Indigenous peoples and the
rest of Canada. We encourage readers to consult Indigenous-led efforts
on this issue, such as the 2018 summary, “Impact Assessment in the
Arctic: Emerging Practices of Indigenous-Led Review”, 198 the
Stk’emlúpsemc te Secwépemc Nation’s Indigenous-grounded project
assessment panel review for the Ajax mine project,199 and written and
in-person submissions to the Expert Panel from Indigenous groups.200
We recognize also that it is not merely legislative drafting that will
determine the sustainability of future resource development but also
how the law is implemented and operationalized. Along these lines, there
198 Ginger Gibson et al, “Impact Assessment in the Arctic: Emerging Practices of
Indigenous-Led Review” (April 2018), online (pdf ): Gwich'in Council International
199 See Stk’emlúpsemc te Secwépemc Nation, “Honouring Our Sacred Connection to
Pípsell”, online (pdf ): <
200 For a database of all submissions to the Expert Panel, see Expert Panel: Review of
Environmental Assessment Processes, “ What We’ve Heard”, online: <eareview->.
will be further opportunities for legal scholars and scientists to work
together to strengthen the scientific basis of environmental decision
making in Canada. In this article, as well as in other recent efforts,201 legal
scholars and empirical scientists have recognized the need to coordinate
and collaborate to advance mutual goals of a clear EA regime that
supports evidence-based decision making. The coming monthsduring
which Bill C-69 will make its way through the Senate—will make clear
whether the federal government took advantage of the great deal of
expert advice available to it, as well as whether it fulfilled the broad
public mandate to rectify decades of failed opportunities to improve the
role of science in federal EA law.
The authors would thank the editors of this special section, Professors
Jason MacLean, Chris Tollefson, and Meinhard Doelle, student editors,
and the anonymous reviewers for their feedback and assistance in
developing this manuscript. The authors would also like to thank the 25
experts and 6 anonymous reviewers who contributed to the “Strong
Foundations” technical report, and the 11 anonymous experts who
contributed to the associated report card202 for their insightful feedback.
201 See e.g. Robert B Gibson, Meinhard Doelle & A John Sinclair, “Fulfilling the
Promise: Basic Components of Next Generation Environmental Assessment” (2016)
29 J Envtl L & Prac 257; Doelle & Sinclair, supra note 68; Westwood et al, supra
note 72.
202 See “How Does the Impact Assessment Act Stack Up?”, supra note 164.
... In recent years, however, it has been established that in Canada and elsewhere science is being unused or underused to inform policy and management processes (Cvitanovic & Hobday, 2018;Lubchenco, 1998;Marleau & Girling, 2017;Sutherland & Wordley, 2017;Westwood et al., 2019). Experts have pointed to the phenomenon of interference in science as a leading barrier to effective knowledge mobilization between scientists and policy makers (Anbleyth-Evans & Lacy, 2019; Driscoll et al., 2021;Turner, 2013;, although they have not used the specific term "interference in science". ...
... Research has shown that public policy is more effective when informed by a collaborative, democratic process that uses sufficient evidence, public opinion, critical thinking, and evaluation (Anbleyth-Evans & Lacy, 2019; Hahn, 2019;Heink et al., 2015;Kukkonen & Ylä-Anttila, 2020;Lester & Foxwell-Norton, 2020;Soomai, 2017;Westwood et al., 2019). ...
... They are to: (1) maintain independence by protecting research from political interference and (2) communicate results transparently (Science Integrity Project, 2015;ISEDC, 2018). It is generally agreed that scientific evidence is valuable to decision-making and promotes a democratic approach to governance by raising awareness, issuing warnings, defining problems, assessing policy options before and/or after implementation, and monitoring implemented policies (Douglas, 2012;McNie, 2007;Westwood et al., 2019). ...
Full-text available
When scientific researchers are sufficiently resourced to conduct research and communicate their findings, the knowledge produced can underpin technology and policy outcomes related to the environment and society. However, interference with the research process and sharing of results has been observed in several countries, particularly for environmental researchers. This study reviews the history of “interference in science” in Canada and offers a first definition of this term. To understand the prevalence and impacts of interference, researchers in the environmental studies and sciences in Canada were surveyed. The results indicate that these researchers, as of 2021, seem overall better able to conduct and communicate their work than in the past decade. However, ongoing interference in their scientific pursuits and communication remains cause for concern. After documenting consequences of interference in science communication, democratic governance, and the well-being of researchers’ themselves, I recommend solutions to limit interference and improve knowledge mobilization.
... In addition, Canada's federal Impact Assessment Act (2019) allows for the use of regional assessments as a planning tool to guide the protection or development of regions under pressure. Both the Impact Assessment Act and BC's Environmental Assessment Act (2018) (123) were recently updated to include provisions for early engagement among proponents, regulators, other governments, Indigenous Peoples, and the public. Incorporating the values and priorities of local stakeholders and Indigenous rights holders may allow people who bear the immediate burden of the environmental impacts or benefits of mining to shape the vision of their place. ...
... Throughout the review, we use this term broadly to cover other jurisdiction-dependent terms such as environmental assessment (EA), environmental impact statement, or risk assessment. Impact assessment is intended to weigh predicted impacts against the public interest and likelihood of significant adverse effects to inform decision-making and ensure the development of proper mitigation measures (123,(126)(127)(128). ...
... There is general scientific concern that impact assessments do not always meet internationally accepted standards for environmental review and decision-making, including scientific rigor, open data and methods, and independent review (123,129). A recent study on the role of science in Canada's impact assessment processes concluded that proponent-collected data for a single project do not and cannot capture systemic cumulative effects (123). ...
Full-text available
Mining provides resources for people but can pose risks to ecosystems that support cultural keystone species. Our synthesis reviews relevant aspects of mining operations, describes the ecology of salmonid-bearing watersheds in northwestern North America, and compiles the impacts of metal and coal extraction on salmonids and their habitat. We conservatively estimate that this region encompasses nearly 4000 past producing mines, with present-day operations ranging from small placer sites to massive open-pit projects that annually mine more than 118 million metric tons of earth. Despite impact assessments that are intended to evaluate risk and inform mitigation, mines continue to harm salmonid-bearing watersheds via pathways such as toxic contaminants, stream channel burial, and flow regime alteration. To better maintain watershed processes that benefit salmonids, we highlight key windows during the mining governance life cycle for science to guide policy by more accurately accounting for stressor complexity, cumulative effects, and future environmental change.
... The most common limitation we observed in baseline studies was the lack of clear hypotheses and scientific questions (Fig. 3), which is a widespread problem for monitoring studies (Beanlands and Duinker, 1983;Legg and Nagy, 2006;Lindenmayer and Likens, 2009;Dias et al., 2019). The most important underlying question to guide an EIA is how biodiversity values will be affected by the proposed project (Westwood et al., 2019). A good quality EIA should explicitly design their baseline study guided by this line of reasoning, yet we did not observe this practice in our evaluation. ...
... A good quality EIA should explicitly design their baseline study guided by this line of reasoning, yet we did not observe this practice in our evaluation. In addition to guiding questions and hypotheses, data credibility is also a critical element of baseline studies (Westwood et al., 2019). It is well known that the lack of information about the sampling design prevents an assessment of whether data collection was reliable (Barker and Wood, 1999;MPU, 2004;Gontier et al., 2006;Soderman, 2006;Gannon, 2021). ...
... First, a culture of evidence-based decision-making could help ensure there is a better link between baseline data and recommendations. Scientific evidence should be a fundamental element in all the steps of the EIA process, especially to determine baseline conditions, to identify potential impacts, to decide what kind of mitigation is the most appropriate, and finally, to decide about the project viability (Westwood et al., 2019). ...
Environmental Impact Assessment (EIA) is the main legal instrument for controlling the impacts of human development projects in many countries, including Brazil. However, the way biodiversity is addressed as part of the EIA process has been discussed around the world, with concerns raised about poor-quality studies and a failure to achieve evidence-based decisions. To explore these concerns, we evaluated: 1) the quality of baseline biodiversity studies used to inform EIAs; 2) the predictions made about the impacts of the development on biodiversity and their relationship to baseline studies; and 3) the relevance of the quality of these baseline studies and the predicted impacts on the decisions made by the relevant licensing agency. To do this, we collected and analyzed EIAs associated with 78 development proposals from the State of Minas Gerais in southeastern Brazil, using medium and large-sized terrestrial mammals as indicators. We found baseline studies were basic and lacking scientific rigor, with no guiding questions or hypotheses, few ecological analyses, and that they omitted essential information about study design. The poor quality of biodiversity information in most baseline studies led to significant deficiencies in impact reports, with inadequate descriptions of the likely impacts of developments on biodiversity. Finally, we found that the shortcomings in both baseline studies and impact assessment reports had no relationship to decision-making, with poor quality EIAs still obtaining environmental licenses, which is alarming. Only in two decisions were cited some shortcoming of baseline studies as a reason for conditional approval. We conclude by providing a range of recommendations to help promote evidence-based decision-making in EIAs and improve the quality and transparency of the biodiversity data produced throughout Strategic Environmental Assessment (SEA) and EIA.
... Both types of CEAs occur within Canadian jurisdictions, but project-based and effects-based CEAs differ in their goals and objectives. We note differences between the science-based goal of most effects-based CEAs (to characterize, analyze, and quantify individual and multiple stressor effects on species and ecosystems within a region) and the more limited goal of project-based CEAs (to undergo project review and approval within a defined regulatory process; Duinker and Greig 2006;Noble 2010;Gunn and Noble 2011;Westwood et al. 2019). Larger, regional scale, effects-based CEAs are needed to quantify the CE of multiple stressors on species and ecosystems where diverse sectors (e.g., in terrestrial systems sectors like forestry, agriculture, energy, mining) and processes (climate change) operate simultaneously (spatially, temporally) within a region. ...
... We describe each method and provide examples, highlight advantages and limitations, identify how methods address key science-based CEA questions, and provide direction on when and why to use specific CEA methods. The larger scale need for policy shifts and associated mechanisms to promote the implementation of methods reviewed here (i.e., coordinated, collaborative, regional CEAs) are beyond the scope of this document and have been well reviewed elsewhere (e.g., Gillingham et al. 2016;Jones 2016;Westwood et al. 2019). ...
Full-text available
Landscapes in Canada are undergoing change due to resource and land use stressors and climate stressors. Understanding the cumulative effects of these stressors is challenging because of the complexity of ecosystems, the variability of stressors, and species response to individual or multiple stressors. A key challenge within the field of cumulative effects assessment (CEA) is guidance that describes and evaluates analytical methods. In this review we discuss four broad categories of methods with current or potential use for project-based and effects-based CEA for species in terrestrial systems: (i) qualitative review, (ii) habitat supply models, (iii) empirical species–stressor models, and (iv) decision support models. We describe each method and provide examples, highlight advantages and limitations, identify how methods address key science-based CEA questions, and provide direction on when and why to use specific CEA methods. Empirical species–stressor models and decision support models are the only analytical approaches that provide answers to many science-based CEA questions including how multiple stressors combine to affect an individual species and the certainty of multiple stressor effects. We provide recommendations for using one or more methods as complementary building blocks to fill data gaps, improve understanding and communication, engage diverse partner groups, and increase the quality and credibility of the CEA. Our review supports a move toward regional scale, effects-based CEA where partner collaboration to design, implement, and analyze comprehensive assessments of multiple stressors will (i) expand our knowledge of terrestrial species response to stressors and (ii) inform best management practices for resource industries and conservation and management actions for land managers.
... With these inherent constraints on government and industry employees, we suggest new authorities, independent of government and industry, are needed to ensure that expert knowledge properly informs government decision-making and promotes public awareness. Similar conclusions have recently been drawn in Canada (Jacob et al., 2018;Westwood et al., 2019a). ...
... An independent authority could also help implement other reforms to environmental impact assessment processes that would help reduce science suppression in industry. Reforms could include enforcing scientific rigor, independent peer review of reports, and open, timely publication, and archiving of data, reports, and decisions (Singh, Lerner, & Mach, 2018;Westwood et al., 2019a). ...
Full-text available
Suppressing expert knowledge can hide environmentally damaging practices and policies from public scrutiny. We surveyed ecologists and conservation scientists from universities, government, and industry across Australia to understand the prevalence and consequences of suppressing science communication. Government (34%) and industry (30%) respondents reported higher rates of undue interference by employers than did university respondents (5%). Internal communications (29%) and media (28%) were curtailed most, followed by journal articles (11%), and presentations (12%). When university and industry researchers avoided public commentary, this was mainly for fear of media misrepresentation, while government employees were most often constrained by senior management and workplace policy. One third of respondents reported personal suffering related to suppression, including job losses and deteriorating mental health. Substantial reforms are needed, including to codes of practice, and governance of environmental assessments and research, so that scientific advice can be reported openly, in a timely manner and free from interference.
... Some level of public participation is a hallmark of EA processes, with experts in EA calling for modern laws to include robust provisions for public participation as well as open data (Sinclair and Fitzpatrick 2002;Gibson et al. 2016;Westwood et al. 2019), and better public engagement has been a focus for Not only do amendments receive a less thorough and publicized review as EAs under BC's process for mining projects, but we also found that the dialogue in most amendment documents was generally vague and nonquantitative in nature. For example, an amendment was approved to allow greater above ground stockpiling of acid-generating waste rock at the Fording River -Swift Project, in which the Ministry of Environment offered a response that stated the "proposed amendment is unlikely to negatively affect the receiving environment beyond what has already been assessed [for the certificate]" (BCEAO 2017). ...
Full-text available
In British Columbia (BC), Canada, there is increased attention on mines and their impacts on water resources. In BC, many proposed mines undergo provincial environmental assessment (EA), which predicts a mine's risks and involves government oversight and public engagement. After approval, mines can apply for amendments that alter the project's undertakings, including in ways that may harm water resources. We examined all amendment documents for mines undergoing provincial EA in BC from 2002 to 2020. Of the 23 approved mines, 15 (65%) requested a total of 49 amendments , of which 98% were approved. Most mines applied for their first amendment within 3 years of approval. We deemed 20 of the approved amendments (associated with 10 projects) likely to have negative impacts on water resources, including changes to effluent discharge, increased volume of water extraction, or degradation of fish habitat. Amendment applications and approval documents lacked specific, quantitative information to reinforce claims or decisions. We present the first known summary of EA amendments in any jurisdiction. Given that most mines in BC receive amendments, and many are related to water, we express concern that amendment processes increase risk to water resources without meeting standards of evidence and public scrutiny required by the regular EA process.
... In Canada, discourse around significance thresholds has evolved over decades as a result of past neglect of environmental impacts due to industrial development (R. Gibson and Hanna 2016). Significance determinations of socioecological impacts are still seen, in practice, as in tension with considerations of socioeconomic benefits, often giving rise to critiques from within the scientific community of the quality of science in IAs when constrained by nonscientific considerations and the subjective judgements (and conflicting priorities) of regulators and proponents (Westwood et al. 2019;Murray et al. 2018). Similarly fraught is the concept of mitigation, conceptually and procedurally inseparable from significance, because the two terms effectively define one another as correlatives. ...
Full-text available
Canada’s Trans Mountain Expansion Pipeline project is one of the country’s most controversial in recent history. At the heart of the controversy lie questions about how to conduct impact assessments (IAs) of oil spills in marine and coastal ecosystems. This paper offers an analysis of two such IAs: one carried out by Canada through its National Energy Board and the other by Tsleil-Waututh Nation, whose unceded ancestral territory encompasses the last twenty-eight kilometers of the project’s terminus in the Burrard Inlet, British Columbia. The comparison is informed by a science and technology studies approach to coproduction, displaying the close relationship between IA law and applied scientific practice on both sides of the dispute. By attending to differing perspectives on concepts central to IA such as significance and mitigation, this case study illustrates how coproduction supports legal pluralism’s attention to diverse forms of world making inherent in IA. We close by reflecting on how such attention is relevant to Canada’s ongoing commitments, including those under the UN Declaration on the Rights of Indigenous Peoples.
... The study by the Ecological Society of Australia (Driscoll et al. 2020) presented various processes for achieving independent scientific input into public and policy debate including an independent authority responsible for environmental research related to environmental assessment, independent peer review of reports (such as the NCEA in the Dutch IA system), and open, timely publication, and archiving of data, reports, and decisions (Singh et al. 2018: Westwood et al. 2019. They also suggested that professional societies should defend scientists and foster a culture that supports open communication and document cases of suppression to demonstrate the need for reform. ...
Environemntal Impact Assessment Concerns and General Approaches
Full-text available
Land-use change is the largest proximate threat to biodiversity yet remains one of the most complex to manage. In British Columbia (BC), where large mammals roam extensive tracts of intact habitat, continued land-use development is of global concern. Extant mammal diversity in BC is unrivalled in North America owing, in part, to its unique position at the intersection of alpine, boreal, and temperate biomes. Despite high conservation values, understanding of cumulative ecological impacts from human development is limited. Using cumulative-effects-assessment (CEA) methods, we assessed the current human footprint over 16 regional ecosystems and 7 large mammal species. Using historical and current range estimates of the mammals, we investigated impacts of human land use on species' persistence. For ecosystems, we found that bunchgrass, coastal Douglas fir, and ponderosa pine have been subjected to over 50% land-use conversion, and over 85% of their spatial extent has undergone either direct or estimated indirect impacts. Of the mammals we considered, wolves were the least affected by land conversion, yet all species had reduced ranges compared with historical estimates. We found evidence of a hard trade-off between development and conservation, most clearly for mammals with large distributions and ecosystems with high levels of conversion. Rather than serve as a platform to monitor species decline, we strongly advocate these data be used to inform land-use planning and to assess current conservation efforts. More generally, CEAs offer a robust tool to inform wildlife and habitat conservation at scale.
Full-text available
Environmental impact assessment (EIA) is one of the planning, decision-making and management tools for environmental protection, through which climate change could be potentially addressed. This paper presents a survey of international perspectives aiming to understand: What is the best way to address climate change through EIA? The survey results strongly suggested that specific climate change related regulation and guidelines are needed that will apply in each step of the EIA process. However, there is also need to synchronise EIA practice with other instruments such as strategic and sustainability assessments, as well as broader economic instruments and other political commitments to address climate change. Working towards putting in place EIA regulations and guidance specific to climate change appears to be an important first step in tackling this global environmental issue.
A rapidly expanding human footprint - comprised of anthropogenic land-use change and infrastructure - is profoundly affecting wildlife distributions worldwide. Cumulative effects management (CEM) is a regional approach that seeks to manage combined effects of the human footprint on biodiversity across large spatial scales. Challenges to implementing this approach include a lack of ecological data at large spatial scales, the high cost of monitoring multiple indicators, and the need to manage multiple footprints across industries. To inform development of effective CEM, we used large mammals as indicators to address the following questions: a) do species respond more strongly to individual footprint features or to cumulative effects (combined area of all footprint types, measured as total footprint), b) which features elicit the strongest responses across species, and c) are the direction of responses to footprint consistent? We used data from 12 years of snowtrack surveys (2001-2013) in the boreal forest of Alberta, coupled with regional footprint and landcover data, to develop generalized linear mixed-effects models relating the relative abundance of five boreal mammals [gray wolf (Canis lupus), Canada lynx (Lynx canadensis), coyote (Canis latrans), white-tailed deer (Odocoileus virginianus) and moose (Alces alces)] to individual and cumulative effects of the human footprint. We found that across species the strongest responses were to agriculture, roads, and young cutblocks (<10 years), suggesting these as potential priority stressors to address within CEM. Most species also responded to total footprint, indicating that in the absence of detailed information on individual features, this coarse measure can serve as an index of cumulative effects. There was high variability in direction and magnitude of responses across species, indicating that community-level responses are likely and should be considered within CEM planning.
This study examines the first generation of state and local policies in the US that require consideration of climate change in environmental impact analysis (EIA). Based on a review of six policies, the study finds significant variation in approach relative to the nature of analyses (quantitative versus qualitative), consideration of various greenhouse gases, methods used to analyse impacts, applicability of policies and approaches to integrating climate change analyses into EIA documents. At the same time, the analysis highlights key challenges associated with addressing climate change in the existing EIA framework, including addressing cumulative effects and scientific uncertainty and evaluating the significance of project-scale climate change impacts.
In the life and natural sciences, the concept of thresholds or points or zones of change from one state to another has been investigated since the late 18th century. Over the past three decades, ecologists and economists around the world have been examining the existence and use of ‘ecological thresholds’ in natural and modified systems, primarily as a conceptual basis for the development of tools to conserve and sustainably manage natural resources. In Australia, there has been a recent renewed interest in the definition and application of ecological thresholds in the conservation of threatened fauna and flora, modelling the impact of habitat loss, modification and fragmentation on terrestrial biota, management of pest plant and animal species, and development of natural resource management policies and plans. This paper reviews the threshold concept from an ecological perspective. It considers the definition, types and behaviour of this phenomenon. The theoretical and empirical evidence for their purported existence is reviewed and their potential utility in biodiversity conservation and natural resource management is discussed, along with key issues relating to their use.
Consider the Global Impacts of Oil Pipelines" (2014) 510 Nature 465 at 466. For a detailed discussion on the state of climate science in environmental assessment, see MacKinnon
  • Wendy J Palen
Wendy J Palen et al, "Consider the Global Impacts of Oil Pipelines" (2014) 510 Nature 465 at 466. For a detailed discussion on the state of climate science in environmental assessment, see MacKinnon, Duinker & Walker, supra note 9 at 51-54.
  • Ceaa See
See CEAA 1992, supra note 46, ss 16(1)(a), 19(5).
Pipeline Regulator Gets Pounded with Complaints for Being Secretive
  • See Mike De Souza
See Mike De Souza, "Pipeline Regulator Gets Pounded with Complaints for Being Secretive", National Observer (21 February 2018), online: <www.nationalobserver .com>;
Pipeline Panel Recuses Itself, Chairman Reassigned from Energy East Duties
  • Mike De Souza
Mike De Souza, "Pipeline Panel Recuses Itself, Chairman Reassigned from Energy East Duties", National Observer (9 September 2016), online: <www.national>.
Government Insiders Say Trans Mountain Pipeline Approval Was Rigged
  • Mike De Souza
Mike De Souza, "Government Insiders Say Trans Mountain Pipeline Approval Was Rigged", National Observer (24 April 2018), online: < 2018/04/24/kinder-morgan-opponents-suspected-trudeau-government-rigged-itsreview-pipeline-federal>.