Discretion, Judicial Review and the Canadian Environmental Assessment Act
Posted: 16 Jul 2009
Date Written: July 16, 2009
Vagueness in the Canadian Environmental Assessment Act (CEAA) has led to unnecessary litigation and confusion over the respective roles of courts, Parliament, and especially responsible authorities. The CEAA is intended to provide an assessment regime to balance the possible economic and other benefits of various types of projects against their potential environmental harm.
As highlighted in several recent cases, the CEAA provides only vague guidance in determining the scope of the project itself and the scope of the assessment of the immediate and cumulative environmental effects. It gives the responsible authority (which may be any federal body related to the project) near-complete discretion in making these determinations. This creates the danger that political or economic factors might unduly influence decisionmaking in this sensitive area, resulting in either unnecessarily high costs on the proponent or inadequate protection against environmental harm Federal courts have done little to improve this situation, adopting a “reasonableness simpliciter” standard of judicial review that defers to responsible authorities as long as they have followed the statutory process.
For the CEAA assessment regime to be meaningful and consistent, both Parliament and the courts must take a more active part in defining the role of responsible authorities. Parliament, currently in the process of reviewing the CEAA, should make amendments to provide more specific criteria for decisions under the Act. It should also consider creating an expert administrative tribunal that would undertake a more detailed substantive review of these decisions. If the principles governing environmental assessments were clarified, courts could undertake more meaningful reviews of decisions; in the absence of a substantially amended CEAA, courts should require responsible authorities to set out dear reasons for their decisions. If Parliament and courts take some of these steps, the CEAA regime will gain much-needed clarity and accountability.
Keywords: Canadian Environmental Assessment Act (CEAA), Canadian environmental law, judicial review, "reasonableness simpliciter", Parliament, division of power
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