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• Behind closed doors in Ottawa, Canadian government officials are drafting amendments to their advanced but controversial 2019 Impact Assessment Act, the country’s main tool for assessing major projects that can include big dams, pipelines and mines.
• But they face a longstanding dilemma — how to respect Canada’s venerable Constitution while also applying new knowledge and acting on new imperatives.
• Proposed projects being reviewed under the Impact Assessment Act — ranging from gold mines to airports and offshore wind projects — have often been lightning rods for controversy.

Big concerns overlooked

• It divides powers and responsibilities, assigning some — like fisheries and navigation — to the federal government and others, including most natural resources, to the provinces.
• Areas of concern that overlap or weren’t recognized in either 1867 or 1982 — like the environment and sustainability, respectively — are problematic.
• The amendments now being drafted are aimed at pulling back the overreach for cases involving major matters of provincial jurisdiction.

Favouring the old way

• First, narrow the agenda of impact assessment to focus on mitigating the adverse environmental effects of proposed projects.
• Second, assign responsibility for addressing particular effects according to whether they are within established federal jurisdiction or provincial jurisdiction.
• All are linked in complex social-ecological systems that influence each other continuously at multiple scales.

The strengths of the existing law

• On the contrary, such an approach would return us to the pre-assessment world of piecemeal regulatory licensing.
• In contrast to earlier federal assessment law, the Impact Assessment Act includes mitigation of adverse effects within a bigger, more demanding and realistic agenda.
• It moves the core objective of assessment from merely reducing additional damage to seeking positive contributions to sustainability.

What the amendments must prioritize

• For the drafters of amendments to the Impact Assessment Act, then, the challenge is not only to bring the law into constitutional compliance.
• It is to craft a constitutionally compliant law that also meets 21st-century needs for assessments and decision-making in the lasting public interest.

Robert B. Gibson has funding from the Social Sciences and Humanities Research Council of Canada for work on next generation assessment. He is also a member of the Impact Assessment Agency of Canada's Technical Advisory Committee on Science and Knowledge.