Canadian Lawyer

48 A P R I L 2 0 1 8 w w w . C A N A D I A N L a w y e r m a g . c o m ning phase of proposed projects and a potentially significant role for regula- tors in certain types of review panel assessments. "The public interest test is broader and more nuanced," says Powell, com- pared to the previous analysis of wheth- er a project would result in a significant adverse environmental effect, as set out in legislation enacted in 2012 by the former Conservative government. "You will have to be more robust on how it meets that test," explains Powell about the proponents of projects designated for these reviews. The new test states that the factors to be considered are the extent to which a project contributes to sustainability, adverse effects, mitigation matters than can be implemented, the impact on any indigenous group and how it hinders or assists the government of Canada's environmental treaty obligations. Martin Ignasiak, a partner at Osler Hoskin & Harcourt LLP in Calgary, suggests that, in one respect, the pro- posed legislation is formalizing what has already been taking place in the assessment process. "This is something we have seen over the last several years," says Ignasiak, national co-chairman of the firm's regulatory, environmental, aboriginal and land group. However, he says he has concerns about the scope of this test and whether in some cases it will even be possible for applicants to meet the legal bar. "Our clients have no issue with address- ing aboriginal or community concerns that have a connection to the project. When I look at the proposed legisla- tion, though, it includes social issues to be addressed that may be beyond the ability of the proponent to mitigate," he says. From the perspective of environ- mental organizations, there is also a mixed reaction to the legislation. The broader factors that must be consid- ered in an assessment is a step in the right direction, suggests Stephen Hazell, director of conservation and general counsel for Nature Canada. "What the environmental commu- nity has been asking for is to go beyond the adverse effect test," says Hazell, who is also a former director of legislative and regulatory affairs at the Canadian Environmental Assessment Agency. "Communities are concerned about the impact from a long-term perspective. You are starting down that path with the public interest test," he says. The legislation also requires the minister or the cabinet (depending on whether the assessment is conducted by the agency or a review panel) to provide reasons for the government's ultimate decision on a project. In addition to providing the grounds for a judicial review, the need to pro- vide reasons should reduce the possibil- ity that a decision has been made "for purely political reasons," says Hazell. "This should encourage governments to play it straight." Joshua Ginsberg, director of the Eco- justice environmental law clinic at the University of Ottawa, says the obliga- tion to provide reasons is a positive step. However, he believes there is a lack of clarity in the language in key parts of the legislation, such as the requirement for a "consideration" of the various fac- tors in the public interest test. "The standard of consideration needs to be clarified. It should not be just 'some consideration' but a clear threshold," says Ginsberg. More expla- nation would be of assistance to all parties, he says, including proponents. "In fairness to them, they don't know the bar." Another aspect of Bill C-69 that is concerning to groups such as Ecojustice is there could be a greater role for some regulators in the impact assessment of major offshore energy projects. Ecojustice is leading a coalition of environmental groups in a court chal- lenge against the Canada-Newfound- land and Labrador Offshore Petroleum Board, which granted an extension of an exploration licence in the Gulf of St. Lawrence, near the Magdalen Islands. The area, known as the Old Harry Pros- pect, is home to four thousand species of marine life and is on a channel that is a migratory path for whales, salmon and cod. In the future, in cases where a review panel is ordered for an offshore project OUR CLIENTS HAVE NO ISSUE WITH ADDRESSING ABORIGINAL OR COMMUNITY CONCERNS THAT HAVE A CONNECTION TO THE PROJECT. WHEN I LOOK AT THE PROPOSED LEGISLATION, THOUGH, IT INCLUDES SOCIAL ISSUES TO BE ADDRESSED THAT MAY BE BEYOND THE ABILITY OF THE PROPONENT TO MITIGATE. MARTIN IGNASIAK, Osler Hoskin & Harcourt LLP

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