Canada: Expert Panel's Recommendations To Increase The Number, Cost And Timing Of Federal Environmental Assessments

On April 5, 2017, the federal environmental assessment (EA) expert panel released its report, Building Common Ground: A New Vision for Impact Assessment in Canada. The report recommends broadening the scope of assessments to include environmental, economic, social, cultural and health impacts. Only projects that contribute a net positive benefit to present and future generations would be approved. The report's recommendations will increase the number of project assessments and the timing and costs associated with each assessment. The public has been invited to provide comments on the report until May 5, 2017. Comments can be provided online.

BACKGROUND

Following the most recent federal election, the Prime Minister directed the Minister of Environment and Climate Change (Minister) to review the federal EA process with the objectives of restoring public trust in EAs; introducing new, fair processes; and getting resources to market.

In August 2016, the Minister announced the establishment of an expert panel (Panel) to conduct this review. The Panel publicly released its official report (Report) on April 5, 2017. The federal government will review the Report and all public input received to develop options for legislative, regulatory and policy changes to the federal environmental assessment process.

The Report is one component of the federal government's review of environmental and regulatory processes in Canada. The other components include reviews to modernize the National Energy Board, the Fisheries Act and Navigation Protection Act.

REPORT

The Panel found that the current EA process:

  • Imposed unrealistically short timelines for the review of complex documents by interested parties
  • Did not allow for adequate Indigenous participation or jurisdictional cooperation
  • Significantly reduced the number of projects subject to review
  • Placed more accountability for some assessment decisions in the political realm

Altogether, this "sowed seeds of mistrust" in many segments of society. The Panel found that "the pendulum of policy ... has swung too far".

The Report outlines a range of recommendations for federal EAs moving forward. The following summarizes some key recommendations:

  1. Scope: The scope of EAs should be broadened to consider the five elements of sustainability, namely: environmental, economic, social, cultural and health. EAs should therefore be renamed impact assessments (IAs). IAs should be undertaken earlier in project development before design elements are finalized.
  2. One Authority: A single new federal authority (Authority) should be mandated to conduct IAs on behalf of the federal government. The Authority should be structured as a quasi-judicial tribunal and empowered to make final decisions and undertake a full range of facilitation and dispute resolution processes, including mediation and informal and formal hearings. The Authority's decisions should be appealable to the governor-in-council by any participant.
  3. Jurisdictional Cooperation: Cooperative IAs, involving the federal, provincial, municipal and Indigenous governments should be the primary mechanism for conducting IAs. "Substitution" should continue to be available, but only if key federal requirements are maintained. The federal government should be able to request additional information from the other jurisdiction if a gap is identified upon completion of the substituted process. "Equivalency" should no longer be available.
  4. Triggers: Federal IAs should relate to federal government responsibilities. IAs should be required in three circumstances:
    1. A project falls within a new project list, which would include projects that are likely to adversely impact matters of federal interest in a way that is consequential for present and future generations.
    2. A project meets certain criteria that indicates the project has the potential to consequentially impact present and future generations (e.g., the project occurs in a sensitive area).
    3. Where any person or group, including the proponent, requests an IA for the project and the Authority accepts this request. The Authority should also have the opportunity to reconsider whether an IA has been triggered based on new information (Reopener Scenario).
  5. Timelines: Project IA timelines should be established on a project-by-project basis based on input from all participants, including the proponent and provincial, municipal and Indigenous representatives.
  6. Approval Threshold: Projects should only be approved if they provide a net benefit to Canada for present and future generations across the five elements of sustainability.
  7. Indigenous Participation and Decision-Making: The IA process should require the assessment of impacts to asserted or established aboriginal or treaty rights and interests. The Authority should be responsible for the fulfillment of the federal Crown's duty to consult and accommodate. The principles of "free, prior and informed consent" contained in the United Nations Declaration on the Rights of Indigenous Peoples should be reflected in the IA process. Indigenous Peoples who are impacted by a proposed project or activity should have the right to provide or withhold consent, but withholding consent should be exercised reasonably. If consent is withheld, any party should be able to refer the matter to a panel to review whether the withholding of consent is reasonable in the circumstances.
  8. Public Participation: Public participation in IAs should be open to all. Meaningful participation should be allowed in all phases of IAs, including monitoring and follow-up. A participation plan should be collaboratively designed for all IAs at the outset, with input from the public, to establish the objectives of public participation and how input will be recorded, responded to and incorporated into decision-making. Quasi-judicial, as well as informal options for public participation should be available, with sessions being held in affected communities and in participants' language of choice.
  9. Use of Best Scientific Evidence: The Authority should have the power to compel expertise from federal scientists and to retain external scientists to provide technical expertise as required. The Authority should be mandated to verify the adequacy of IA studies across all five elements of sustainability.
  10. Development of Key IA Documents: The Authority should be responsible for preparing the impact statement using a team of consultants and experts retained by the Authority and funded by the proponent.
  11. Monitoring and Enforcement: Indigenous groups should have the right to be involved in monitoring and follow-up when a project will impact their potential or established aboriginal or treaty rights and interests. Local communities should also be involved in the independent oversight of monitoring and follow-up programs. Fines and administrative monetary penalties should be available, as well as the ability to suspend or revoke a project approval.
  12. Strategic and Regional IAs: The use of strategic and regional IAs should be required. Regional IAs should be required in two cases: where cumulative impacts may occur or already exist on federal lands or marine areas; or outside of federal lands and marine areas where there is a potential for, or existing, cumulative impacts on many federal interests. Strategic IAs would be required when a new or existing federal policy, plan or program would have consequential implications for federal project or regional IAs.

OUTSTANDING QUESTIONS

The Report describes a path forward that is dramatically different from the existing EA regime. However, numerous questions remain as to how the recommended changes could be implemented, including:

  • How would a new Authority weigh an economic benefit against an environmental detriment?
  • How might the Reopener Scenario work in practice and what impact will it have on project certainty or uncertainty?
  • What if one Indigenous group says no to a project (reasonably) and others say yes?
  • How would an "affected community" be determined?
  • Does the reliance on "best science" always mean reliance on the most stringent threshold?
  • If any member of the public can participate, how will each person's level of involvement be determined (e.g., intervenor status, commenter status)?
  • How might the National Energy Board's approval process, into which EAs were integrated in 2012, be altered or aligned with any separate IA process administered by the new Authority?
  • How do climate change issues fit within individual project IAs?

These and many other questions will need to be answered to ensure the IA process provides proponents with certainty and achieves its goal of implementing a fair process to help get resources to market.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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