Cooperative Federalism in the Service of Citizens Federal Bill C-69 on environmental impact assessment
by Jean-Marc Fournier – Government House Leader and Minister responsible for Canadian Relations and the Canadian Francophonie
April 14, 2018
Citizens have a right to expect their democratically elected governments to collaborate in the application of their respective laws in the common interest and for our collective future.
On February 8, the federal government tabled Bill C-69 with the goal of improving its environmental impact assessment process.
The Government of Québec modernized its Environmental Quality Act one year ago. We adopted a clear authorization regime that is foreseeable, optimized and compliant with the highest standards in the area of environmental protection.
To foster project acceptability, it is indeed of the utmost importance that the processes be clear and known from the moment projects are designed and before they are even presented.
In addition, it should also be clear that a project is subject to both provincial and federal environmental assessments: this cannot depend only on the federal government or the developer.
It is also indisputable that governments must collaborate in analysing projects that concern more than one Canadian jurisdiction. The new Québec legislation in fact provides for the implementation of collaboration mechanisms in order to coordinate the environmental assessment procedures when necessary, and these mechanisms include the establishment of a unified procedure – based on the “one project, one assessment” principle, which avoids duplication.
As early as 2004, Québec and the federal government had entered into a collaboration agreement, which was renewed in 2010, and which provides for cooperative environmental assessments to be carried out through a coordinated process, so as to ensure compliance with both Québec and federal legislation. Unfortunately, such joint work tends to take place on an ad hoc basis, and some developers mistakenly believe that the laws of a single jurisdiction apply.
No project located in part or as a whole on the territory of one province should avoid compliance with the environmental legislation adopted by the parliament of that province.
Developing an aerodrome, expanding a port area, or building a pipeline are examples of projects that concern both the provincial and federal governments: such projects must be subject to a unified procedure to minimize delays, to ensure compliance with the legislation of both governments, and to secure both provincial and federal approvals, so as to enhance their social acceptability.
In evaluating such projects, the federal government should pledge to work with the provinces that are impacted by their implementation. Bill C-69 must explicitly provide that developers are not exempt from obtaining the authorizations required under provincial legislation.
Developers must be made aware that their projects will be examined in this manner. The recent assertions of federal representatives regarding the Trans Mountain pipeline, which refer to an exclusive application of federal rules, are detrimental to a proper resolution of this issue and raise concerns for the future. Moreover, they encourage developers to ignore provincial environmental rules which were adopted in the interest of citizens who are concerned or impacted by the implementation of these projects. Ignoring provincial legislation in no way fosters social acceptability.
When a project falling under the federal Parliament’s jurisdiction is carried out on the territory of a province, it is clear that the legislation enacted by both governments must apply, without however duplicating procedures. This requirement may be justified by the need to engage in a cooperative federalism for the benefit of taxpayers, who are entitled to expect the two governments to work together as efficiently as possible.
More importantly, it may be justified as a prerequisite to social acceptability, the importance of which has been emphasized by Prime Minister Trudeau himself.
The question is, how can one hope to secure social acceptability in situations where a community has no guarantee that the laws adopted by the provincial parliament it has elected, including laws governing environmental protection and land use, will be enforced?
A federally-imposed solution cannot resolve this matter. The federal government should instead collaborate with the governments of the provinces involved and agree on a joint assessment process that will ensure respect of both provincial and federal jurisdictions, and therefore of the democratic choices of all Canadians. True cooperative federalism in the service of citizens requires nothing less.