New gender provision stumps lawyers

Liberals broaden scope of impact assessments

Over the years, federal environmental assessments have measured everything from the number of endangered lynx near a proposed New Brunswick mine to the presence of dragonflies and butterflies at a British Columbia hydro site.

But under new federal legislation tabled in February, the scope of impact assessments is being broadened well beyond fauna, requiring project proponents to take into account “the intersection of sex and gender with other identity factors.”

Part of the Liberal government’s embrace of genderbased analysis, the new provision has left environmental lawyers puzzled over how the provision will work if the bill becomes law.

“If you’re asking, 'What does that mean?' I’m going to have to say I don’t really know,” said Richard Lindgren, a staff lawyer at the Canadian Environmental Law Association. “I’ll wait for the guidance and direction from the government on this one.”

In a report on the legislation, the law firm Osler, Hoskin & Harcourt LLP said the new gender provision makes “the role of an impact assessment more of a policy-setting exercise than focused on the merits of a specific project, which is likely to increase the scope of studies the proponents will need to engage in and contribute to overall project uncertainty.”

Jessica Kennedy, a lawyer at Osler’s Calgary office and co-author of the report, called the initiative “novel.” Gender impacts have been considered in the past, for example when looking at employment rates on work sites. But Bill C-69 seems to be suggesting something much larger.

“What is more concerning is if you take the issue of gender and gender identity more broadly and start examining, for example, a company’s policies and practices regarding gender, their hiring practices, their bathroom policies, their codes of ethics around treatment of people based on gender or other identity factors — race religion, those kinds of things,” Kennedy said. “That’s where it starts to get more into a policy question, where you’re really looking at the social setting within the company.”

The law firm Dentons similarly flagged the gender language as a source of uncertainty, “since it is not clear how these factors, which are subjective and difficult to assess, will be applied.”

Bernie Roth, a lawyer in Dentons’ Calgary office, said the meaning of the new language on gender remains unclear, but he speculated it could be a tool to increase gender diversity in maledominated trades.

Patrick McDonald at the Canadian Association of Petroleum Producers, said his industry is awaiting further clarification on the meaning of the change. “There is going to be some learning and some adaptation,” he said.

The preamble to the bill, the Impact Assessment Act, declares that the government “is committed to assessing how groups of women, men and gender-diverse people may experience policies, programs and projects and to taking actions that contribute to an inclusive and democratic society.”

In a statement, Kevin Crombie, a spokesman for the Canadian Environmental Assessment Agency, said the intent is to consider “potential effects of proposed projects on communities including impacts on women, men and gender-diverse individuals.”

He gave the example of an influx of workers to a temporary construction camp. It “may have effects on widening inequalities between Indigenous and non-Indigenous people and between women and men, which may negatively affect access to food, housing, social services and local labour market opportunities and increase the risk of violence,” he said.

Bill C-69 reflects a broader government initiative to ensure all new legislation is subjected to a gender-based analysis. Bill C-68 amending the Fisheries Act, also tabled in February, says the minister “may consider ... the intersection of sex and gender with other identity factors” when making a decision. “The primary objective is to ensure that the (Fisheries) department is collecting data in such a way that it can ensure that benefits of any of its decisions are equally distributed amongst various sectors of society,” a government official said at the time.

Lindgren, who has practised environmental assessment law for more than 30 years, said the gender provision appears to have been a government initiative.

“I haven’t really seen it referred to or used at all in either provincial or federal environmental assessments that I’ve been involved with,” he said. “That’s not to say we shouldn’t do it — in fact, I would have no objection in principle to pursuing that kind of assessment component — I just don’t really know what it means in practice.”

Jane Stinson, an adjunct research professor at Carleton University who has studied impact assessments, welcomed the move. “It’s important to look at the different impacts (of a project) on men and women, but women and men aren’t universal groups,” she said. “What’s the impact on Indigenous women and men, on immigrant women and men, on disabled women and men?”