The Automatic Trigger For an Environmental Review Not so Automatic

Image credit: Discover the Impact Assessment Agency of Canada video

By Don Sullivan

The list of physical activities as defined under regulations is pretty clear. Any rail yard that meets or exceeds a 50 hectare threshold is an automatic trigger for assessment under the federal Impact Assessment Act. 

The WTFMB letter clearly demonstrated that CanWhite Sands’ proposed rail yard more than exceeded the 50 hectare threshold that is needed for an automatic assessment under the Impact Assessment Act.

This is where it gets interesting. It is the Minister and/or the Impact Assessment Agency of Canada, which is the agency in charge of administering the federal Impact  Assessment Act, who apparently get to arbitrarily determine what does or does not get included in the definition of the 50 hectare threshold. 

The following is the response, in a June letter, by the President of the Impact Assessment Agency of Canada to an individual from Southeastern Manitoba who raised the same issue about CanWhite Sands meeting and exceeding the 50 hectare threshold as an automatic trigger for assessment by the federal Impact Assessment Act.

“With respect to total area of a railway yard under subsections 54(b) and 55 of the Physical Activities Regulations (the Regulations), the Agency interprets the total area of a railway yard to be the surface area of each of the components of the railway yard. Areas in between components of the railway yard, such as an area inside a rail loop, are not included in the calculation.”

In short, the President of the federal Impact Assessment Agency of Canada, no doubt in consultation with the Federal Minister, arbitrarily ruled (“interprets” being the operative word) that the land inside CanWhite Sands rail yard loop is not part of the rail yard. With this “interpretation,” the 50 hectares threshold needed to constitute a physical activity for automatic assessment under Impact Assessment Act simply vanishes.

In a June 2019 press release the Federal Minister of Environment and Climate Change, the  Minister of Natural Resources, and the Minister of Transport, welcomed the Royal Assent of Bill C-69, An Act to enact the Impact Assessment Act.

“With the passage of this bill, our government is working to strengthen environmental protection, restore trust in how decisions are made, and grow the economy. Better rules mean that, going forward, decisions on projects will be guided by science, evidence and Indigenous knowledge. Assessments will look at both positive and negative environmental, economic, social, and health impacts of potential projects.” 

That statement appears to be nothing more than hot air, as the entire CanWhite Sand project has been fraught with instances of an apprehension of bias in favour of the proponent by the Minister and the Impact Assessment Agency of Canada. This has been so much the case that the agency and the Act should just be renamed the Impact Avoidance Agency of Canada and the federal Impact Avoidance Act, because there is certainly no assessment going on here with the CanWhite Sands silica sand mining project. 

It should, therefore, come as no surprise to anyone that there seems to be an uptick in direct action activities by ordinary citizens to protect the environment. That’s because there is simply no legal recourse available to citizens when this type of collusion between government and industry is occurring. It is left to each of us, acting collectively, to protect our natural resources from environmental degradation, in the absence of serious environmental regulation by governments.