Government of Canada

 

Back Calgary, AB

The Expert Panel (the Panel) for the review of environmental assessment (EA) processes met in Calgary on November 21-23, 2016, for in-person sessions which included public and Indigenous presentations, a public workshop and an Indigenous open dialogue session.

The following summary presents the comments and input received throughout these in-person engagement sessions. It is intended to present the views of participants, and not the views of the Panel itself.

The summary is organized using the Panel’s “Suggested Themes for Discussion”, available on the Panel’s website at www.EAreview.ca.

The Panel wishes to thank all those who participated for sharing their expertise and experience at these sessions.

Environmental Assessment in Context

Public sessions – November 21 and 23, 2016

The Panel heard that the EA process generally works well, with some room for improvement. Others considered the process to be broken. Participants indicated that Canadians do not feel connected to EA decisions anymore and that both Canadians and investors need to feel confident in a process that is fair and transparent. Participants thought that EA has a role to play in fostering investor confidence by providing regulatory certainty, as well as by providing predictable requirements, timelines, and outcomes. They told the Panel that EA should promote accountable, balanced and informed decision making, and agreed that the transparency of the process should be improved in order to regain public trust.

The Panel heard that EA should be an objective, rigorous, and scientific process that looks at positive and negative effect and that is independent and free from political interference. The Panel heard many views on what should be the purpose or outcome of EA, including:

  • ensuring environmental protection and management;
  • saying yes or no to a project rather than being a rubberstamp;
  • providing guidance for provinces;
  • ensuring consistency country-wide; and
  • providing for sustainability rather than focusing on significance of effects.

Participants noted that EA should move towards a net environmental benefits model; in other words, EA should ask the question whether proposed projects are improving current environmental, economic and social conditions. Others thought that sustainability is difficult to define and that EA should be limited to a planning process. The Panel also heard that EA should move from significance assessment to risk assessment. Some participants expressed concern that the Canadian Environmental Assessment Act, 2012 (CEAA 2012) does not steer proponents towards developing environmentally better projects.

The Panel heard that it is important to distinguish between project EA and policy issues, which participants viewed as beyond EA scope. EA was seen by participants as a regulatory, quasi-judicial process to look at proposed project impacts, and as such should not be addressing broad policy issues. The Panel heard that unresolved policy issues undermine project decisions, which result in longer reviews and reduces investors’ confidence, therefore, national policies and national interests should be determined before project specific EA. The Panel heard that the EA process and national long term objectives should be coordinated. For example, if the Government’s goal is to support transition to low-carbon economy, EA processes should ensure projects aligned with that goal are not slowed down. Some participants suggested a two-part review for pipeline projects that would first consist in a sustainability assessment of proposed projects that would consider broader public policy issues. If the first part indicated that the project is aligned with public interest and policies, the second part of the EA dealing with project characteristics, would be conducted independently by the best placed regulator. The National Energy Board (NEB) was identified as the best placed regulator for this second part of the review. Participants did note however, that the NEB is ill-equipped to deal with policy issues.

Indigenous sessions – November 22, 2016

The Panel heard that EA should consider sustainability and the resources available for future generations.

Overarching Indigenous Considerations

Public sessions – November 21 and 23, 2016

Participants were supportive of the implementation of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which is seen as a framework for reconciliation in Canada. Participants agreed that there is an opportunity for industry to improve relationships with Indigenous peoples. The Panel heard that communities should be engaged early in order to have a fair chance to be part of the design of projects, and that engagement should occur often and throughout the course of the project. The Panel also heard that proponents should have the flexibility to determine the approach to consultation in order to tailor to the needs of individual communities. They noted that overly prescriptive requirements hinder creativity when it comes to consultation. Regarding the duty to consult, some participants thought that legislative provisions should be added to improve Crown consultations while others thought that duty to consult requirements should be discharged outside of the EA process. Finally, the Panel heard that the Canadian Environmental Assessment Agency needs to have mechanisms and processes to properly address complex Indigenous issues while ensuring timely and predictable decisions.

Indigenous sessions – November 22, 2016

The Panel heard about the importance of understanding Aboriginal and Treaty rights. Participants spoke about the importance of their treaties, the need for the Crown to respect the treaties in the spirit in which they were signed, and the need for the Crown to educate itself about Indigenous peoples. Participants mentioned both the Crown’s treaty obligations as well as its fiduciary responsibility to Indigenous peoples.

The Panel heard about the assessment of impacts to Aboriginal and Treaty rights through the EA process. Though there was general consensus that rights must be considered in EA, participants’ views diverged with respect to the role of EA as a rights determination exercise. The Panel heard both that rights should be the starting point for the assessment of effects, and that rights should be considered later in EA processes. Participants identified opportunities for the use of EA methodology to gather information about and analyse potential effects to specific potential impacts to rights, noting that to do so effectively, consideration of impacts to rights must occur early in the project planning and assessment process. Participants explained that conclusions about potential biophysical effects were not appropriate proxies for impacts to rights. The Panel was also told that impacts to rights ought to be assessed separately for each Indigenous group or Nation potentially affected by the project. Further, participants provided examples of how changes to the environment can impact rights. For example, habitat disturbance or adverse effects to wildlife health can impact rights such as the gathering of medicines or hunting.

The Panel heard about the importance of traditional knowledge and that traditional knowledge must be used to develop a complete understanding of potential project effects. The Panel heard that it is important to gather and use this information in a manner that respects knowledge holders and that this may involve respecting areas of importance without requiring the identification of specific sites or an explanation behind the importance.

The Panel heard how the principles of UNDRIP could be upheld in EA. Participants explained that the free, prior, and informed consent of Indigenous peoples must be given before projects that may impact them are allowed to proceed. They also indicated that Indigenous peoples should have a role to play in EA decision-making. Additionally, participants urged the Panel to consider articles relating to language, culture, self-determination, and treaties. The provisions for protecting and accessing heritage sites were also emphasized.

Participants told the Panel about the Crown’s duty to consult and their understanding of what constitutes meaningful consultation. Participants explained that, currently, engagement seems like a “check the box” exercise where scripted messages are delivered rather than providing for open dialogue and discussion. Participants explained that the government currently dismisses many of their concerns. Participants noted that the gathering of traditional knowledge or the completion of traditional land use studies should not be considered a replacement for consultation but that consultation should be informed by this information. The Panel also heard that accommodation is also required and that accommodation measures must be determined in consultation with Indigenous peoples. Participants explained that in current EA processes there is often is no accommodation offered.

Planning of Environmental Assessment

Public sessions – November 21 and 23, 2016

The Panel heard that the introduction of a designated projects list was a good thing, as the list focuses on the most important projects and introduces greater certainty. Some participants, while in favour of the list of designated projects, thought that it disregarded smaller projects that can have important effects and should be expanded and updated regularly. Others thought that not enough projects are subject to a federal EA and that it would be preferable to go back to a trigger approach, with a broader exclusion list and a greater use of class EAs to reduce the volume of projects assessed. Finally, some participants proposed a hybrid model of designated projects and triggers, with the right projects on the list and a trigger to capture non-designated projects with important effects.

In addition, the Panel heard that a climate change trigger should be added, that land disturbance targets and thresholds should be used to trigger EAs, that exploration drilling and in-situ oil sands projects should be excluded from EA requirements, and that any project taking place in a national park should be subject to an EA. Other ideas regarding when a federal EA should apply included when the projects are large in scale, when the provincial process is not broad enough, or when there is federal jurisdiction. The Panel also heard concerns about the process to determine whether or not an EA is required. Participants were concerned by the volume of documentation required by the Canadian Environmental Assessment Agency to make this decision and by the inconsistency in decisions.

The Panel heard that federal EA should only look at effects under federal jurisdiction. Others were of the view that EAs should look at any effects to the biosphere, human health and social well-being of small communities. The Panel heard that EA practitioners cannot assess everything, and that there are not enough data currently to include and assess effects to social and cultural well-being or on ecosystem functions. The Panel heard that the definition of environmental effects used by the National Energy Board is more powerful than the one used by the Canadian Environmental Assessment Agency. Others told the Panel that indirect effects of projects should be assessed.

The Panel heard that the current scope of EAs is too narrowly focused on project activities. They suggested it should be expanded to include cumulative effects, broader land use, climate change effects, and that it should take into account policy context and international agreements. Projects should also be assessed in their entirety and the scale of assessments should be driven by the biological scale of components affected. The Panel heard that the baseline used should be pre-industrial conditions, rather than the current environment. Some participants thought that greenhouse gas emissions accounted for should be limited to the project itself, without including upstream or downstream emissions. Similarly, cumulative effects considered should be limited to what the project can contribute and the proponent can control. The Panel heard that EAs should consider the null alternative, but also that alternatives to the project should not be considered in the EA.

Many participants told the Panel that different types and scales of assessments should be introduced to deal with different types of projects. The Panel heard that more strategic and regional EAs should be conducted to reduce the number of project EAs required. The use of regional EAs was also proposed to reduce the number of issues included in project EAs. The Panel heard that project EA is not a surrogate for regional and strategic planning; participants thought that the line between project EA and strategic planning should be defined more clearly. Regional EAs have been underutilized in the past and should be leveraged more in order to help reduce the volume of individual project EAs and to have broader land-use planning discussions that should not happen at the project level. Participants also thought that consideration for climate change and greenhouse gas issues would be better placed in a regional EA, although EA in general cannot replace policy. The Panel heard that project EAs without a broader perspective provided by either regional or strategic EAs are unsustainable, as they assume limitless resources. Regional approaches were also seen as essential to properly assess cumulative effects, with individual project EAs assessing their own contribution to the regional picture against established regional standards. Finally, Banff was mentioned as a location where a regional assessment should be conducted.

Indigenous sessions – November 22, 2016

The Panel heard about what should be considered within the scope of EAs. Participants spoke about the definition of “environmental effects,” emphasizing that direct impacts to humans, such as effects to health or culture, should be considered in EA. The Panel heard that spiritual, human, and natural worlds must all be considered in EA. Participants explained that Indigenous peoples are often the ones most impacted by the biophysical and human effects of development and environmental degradation, and that the whole suite of potential effects must be within the scope of EA. The Panel also heard that health and the social determinants of health, such as diet, employment, education, spirituality, and community continuity, should be included. Further, participants suggested that alternatives to projects and the trade-offs of environmental effects should be taken into account.

Participants also identified the need for the completion of traditional land use studies to inform assessment of effects. In this vein, the Panel heard about the importance of assessing potential impacts to heritage sites and the related need for adequate studies to identify sites of importance. Mapping of traditional use areas was presented as an example of work that could be completed to make sure that sites would not be impacted. The Panel heard that minimal federal funding is provided for traditional land use studies. Participants explained that some proponents fund traditional land use studies but that this support is not consistently provided across projects. Also with respect to traditional land use, the Panel heard that traditional knowledge must be recognised and respected as legitimate and on par with western science evidence. Participants noted that regional EA and cumulative effects studies related to traditional land use would be helpful, should be required, and should actively involve Indigenous peoples.

The Panel heard that regional assessments are currently primarily used to establish baseline, rather than to plan or to predict and mitigate effects. Participants explained that consideration of developments in a region and their respective effects could allow for better assessment of which environmental effects are acceptable and potential trade-offs.

Conduct of Environmental Assessment

Public sessions – November 21 and 23, 2016

The Panel heard there is a lack of understanding of purpose and scope of EA and that training needs are important for all participants in the EA process, including practitioners and civil servants. The Panel heard that many projects suffer from poor scoping and that flawed environmental impact statements (EIS) are accepted by untrained civil servants. Participants also thought that EIS guidelines should be customized to projects because standard EIS guidelines result in poorly focused EAs. The Panel also heard that there is too much discretion in the scoping of projects and that it should be done more objectively.

Regarding timelines, some participants told the Panel they should stay the same. Others thought that while timelines were supposed to streamline the process, the process is now longer and more uncertain, partly due to the stop-clock options available. The Panel heard that some guidance and oversight is needed for the Canadian Environmental Assessment Agency when it comes to the use of stop-clock provisions and information requests. Predictability of timelines should also be improved, as it erodes Canada’s competitiveness.

The Panel heard that oversight and transparency of EAs conducted under section 67 of the Act should be improved. Currently, it is difficult to know how departments determine that an EA under section 67 is required, to obtain a list of EAs conducted, or to access monitoring data. Parks Canada has been identified by participants as an Agency where implementation of section 67 is inadequate. In contrast, they considered the EA process in national parks under the previous regime as working relatively well.

Indigenous sessions – November 22, 2016

The Panel heard that Indigenous peoples should be involved in all stages of EAs, from proposal planning, through to data gathering and analysis, effects assessment, and decision making. Participants expressed a desire to be involved in assessments and studies rather than simply handed documents for review and comment.

Decision and Follow-up

Public sessions – November 21 and 23, 2016

The Panel heard some concerns around scientific integrity. Participants noted that either science should be done independently from the proponent or that there should be validation of the independence of information used in the EA, for example through the use of blind tenders. The Panel heard that more checks and balances are required in the technical review of the information used to make a decision, for example through peer review and publication of baseline data. Inquisitorial and adversarial review panels were proposed to get to the best science and build public trust in the process. Others thought that professional consultants working on behalf of industry can keep their objective independence, as the evidence presented is theirs to defend.

The Panel heard concerns related to the independence of decision-making in the process. Some thought that Cabinet should decide on the policy objective and leave the EA decision to responsible authorities. Others thought that EA decisions could stay with Cabinet, but that decisions should be more transparent, with more justification provided. Participants told the Panel that, currently, it is impossible to know what information is being considered in Cabinet EA decisions. This decision-making process was considered a “black box” that does not elicit trust. Regardless of who makes the decision, participants noted that decision-making should be transparent and all information considered should be available to the public. A solution proposed to the Panel was to lift Cabinet confidence for EA decisions and make all documents, reasons and trade-offs considered publicly available. The Panel also heard that it should be possible to call for a judicial review of EA reports considered flawed before a decision is made.

With respect to monitoring and enforcement, the Panel heard there is currently a lack of power and resources to consistently enforce conditions. Participants noted that monitoring should be conducted by the regulator or the province and reporting should be an enforceable condition for all proponents. Participants also mentioned that monitoring data should be publicly available, for example on the EA Registry, so that future EAs could build on existing data.

The Panel heard that follow-up should be strengthened to ensure that the process works. Participants suggested this strengthening could be accomplished through a legislated formal quality assurance program conducted by an independent body that would determine whether EAs are effective and predictions are accurate. This information would then be used to inform future EAs. The Panel also heard that an auditor function should be created that would receive complaints and carry out studies as needed.

Indigenous sessions – November 22, 2016

The Panel heard that there is insufficient monitoring and enforcement under current EA processes. Further, participants explained that the lack of enforcement of EA conditions negatively affects Indigenous peoples who feel the impact from projects.

Public Involvement

Public sessions – November 21 and 23, 2016

The Panel heard that, when done properly, public participation results in better planning, projects and outcomes and that, inversely, participation after the fact is irrelevant. Participants told the Panel that meaningful public participation should be mandatory.

With respect to standing, the Panel heard that involvement for directly impacted people should be increased. A sliding scale with increased opportunities for the most affected ones, which would allow for weighting of contributions, was proposed. The Panel heard that the process should not be overtaken by national groups.

The Panel heard that engagement should occur early and timelines for consultation should be expanded, especially during the project description review phase. Early open houses were proposed to ensure concerns would be taken into account from the beginning. All the information used should be shared in plain language and all EA authorizations and permits should be publicly posted. Feedback on comments received should also be provided. The Panel heard that having multiple EA processes with different participation opportunities is confusing for the public and that the process needs to be simplified.

Indigenous sessions – November 22, 2016

Participants articulated the challenges faced with capacity to participate in EAs. The Panel heard that many communities are faced with a plethora of development applications and associated consultation requests, without sufficient staff to consider and address each. Participants noted that more funding is required for participation in EAs and in consultation. In this regard, participants suggested that project by project funding for capacity should be replaced with a base amount, established based on communities’ needs, to support consultation processes.

Coordination

Public sessions – November 21 and 23, 2016

The Panel heard that coordination of federal and provincial processes is a way to regain trust. Participants told the Panel they were supportive of harmonization and one project – one assessment. Opinions differed on the means to achieve this objective; while some were in favour of substitution, others were not. Practitioners told the Panel that the method and steps to conduct an EA remain the same, regardless of the jurisdiction. Duplication was identified as a problem when timing and requirements are not aligned, for example when different levels of government require the same information at different times. Solutions proposed to this issue were to slow down provincial processes so that both assessments are at the same stage, which would be less confusing to the public, or that information provided could be used in both reviews in order to limit the burden on proponents. Substitution was seen by some as an abdication of federal powers. Consequently, harmonization, although not perfect, should be the preferred option. Others told the Panel that EAs should be conducted by the best placed regulator, generally the province, except on federal lands. Under this model, the federal government should enact substitution whenever possible and participate in substituted EAs. Participants indicated that provinces could be the lead in substituted EAs and address federal issues such as fish, migratory birds, etc. to the satisfaction of the federal government. The federal government would lead substituted EAs in cases of limited provincial capacity. The Panel also heard that there could not be full equivalency, as a federal presence in the assessments is required to meet federal objectives.

The Panel heard that too many federal departments are currently involved in EA and that better federal oversight and coordination should be mandated, for example through a one window approach. This approach would solve the issue of different departments requiring different information at different moments.

Annex I

Public sessions

November 21, 2016

List of Presenters

  • Arlene Kwasniak – Individual, Alberta Wilderness Association
  • Dale Friesen – ATCO
  • Patrick MacDonald – Canadian Association of Petroleum Producers
  • Helga Shield – Imperial Oil
  • Sonya Savage, Chris Bloomer – Canadian Energy Pipeline Association
  • Alan Harvie
  • George Hegmann – Stantec
  • Martin Olszynski – University of Calgary
  • Barry Robinson – Ecojustice
  • Ginny Flood – Suncor Energy
  • Celesa Horvath – Ventus Development Services Inc.
  • Peter Duck – Bow Valley Naturalists
  • Stella Swanson

Workshop Participants

  • There were 65 participants.

November 23, 2016

List of Presenters

  • Rob Sturgess – Matrix Solutions
  • Joanna Skrajny – Alberta Wilderness Association
  • Roxanne Benoit – Enbridge
  • Jeff Barnes – Canadian Construction Association
  • Joe Van Humbeck – Canadian Pacific Railway
  • Shaun Fluker, Anne Marie Syslak – CPAWS/University of Calgary
  • Scott Barnes – Windmills Environmental
  • Kris Frederiskson – In-Situ Oil Sands Alliance

Indigenous sessions – November 22, 2016

List of Presenters

  • Tracy Campbell and Kevin de Carteret, Calliou Group on behalf of Michel First Nation
  • Chief Elsie Jack and Jim Tanner, Carry the Kettle First Nation
  • Tonya Crowchild, Tsuut’ina Nation
  • Raymond Cardinal and Donny Rain, Paul First Nation
  • Norine Saddleback, Louis Bull Tribe

Open Dialogue Participants

  • There were 15 participants.

Submissions Received in Calgary

Title

Author

Date Posted

View Full Submission

Transcript - Public Presentations, Nov 23 2016

Calgary Transcript

January 12, 2017

Transcript - Indigenous Presentations, Calgary, Nov 22 2016

Calgary Transcript

January 12, 2017

Transcript - Public Presentations, Calgary, Nov 21 2016

Calgary Transcript

January 12, 2017

Submission "Questions Re: Federal EA Review" for Calgary, Nov 22 2016

Steve Francis

January 09, 2017

Speaking notes for presentation "EA Review: A Practitioner's Perspective" for Calgary, Nov 23 2016

Matrix Solutions Inc.

January 09, 2017

Presentation "EA Review: A Practitioner's Perspective" for Calgary, Nov 23 2016

Matrix Solutions Inc.

January 09, 2017

Speaking notes for Presentation Nov. 22nd 2016

Tsuut’ina Nation

January 05, 2017

Speaking notes for Presentation “CEPA Presentation Expert Panel: Review of Environmental Assessment Processes” for Calgary Nov. 21st, 2016

Canadian Energy Pipeline Association

January 05, 2017

Presentation “CEPA Presentation Expert Panel: Review of Environmental Assessment Processes” for Calgary Nov. 21st, 2016

Canadian Energy Pipeline Association

January 05, 2017

Speaking notes for presentation in Calgary Nov. 23rd, 2016

Canadian Construction Association

January 05, 2017

Submission "MECC EA Expert Panel Review of Federal Environmental Assessment Processes" for Calgary, Nov 21 2016

Stantec

December 08, 2016

Presentation "Michel First Nation" for Calgary, Nov

Calliou Group

December 08, 2016

Submission "Presentation to the Expert Panel on the Review of Environmental Assessment Processes" for Calgary, November 23, 2016

CPAWS

December 07, 2016

Presentation "Presentation to the Expert Panel on the Review of Environmental Assessment Processes" for Calgary, November 23, 2016

CPAWS

December 07, 2016

Speaking Notes for Presentation "CANADIAN ENVIRONMENTAL ASSESSMENT ACT REVIEW: CANADIAN PACIFIC’S PRESENTATION TO EXPERT PANEL" for Calgary, November 23, 2016

Canadian Pacific

December 07, 2016

Presentation "CANADIAN ENVIRONMENTAL ASSESSMENT ACT REVIEW: CANADIAN PACIFIC’S PRESENTATION TO EXPERT PANEL" for Calgary, November 23, 2016

Canadian Pacific

December 07, 2016

Submission "Presentation from the Canadian Pacific for Calgary, Nov.23 2016

Canadian Construction Association

December 07, 2016

Presentation "Expert Panel Review of Environmental Assessment Processes" for Calgary, November 23, 2016

Canadian Construction Association

December 07, 2016

Presentation "Canada’s Environmental Assessment Act (CEEA) and Cumulative Effects" for Calgary, November 23, 2016

Alberta Wilderness Association

December 07, 2016

Presentation "The Role of Environmental Assessment in Risk Governance" for Calgary, November 21, 2016

Swanson Environmental Strategies

December 07, 2016

Presentation "Le renforcement de l'évaluation environnementale au Canada" for Calgary, November 21, 2016

Suncor Energy

December 07, 2016

Presentation "Strengthening Environmental Assessment in Canada" for Calgary, November 21, 2016

Suncor Energy

December 07, 2016

Submission "Ecojustice Submission to the Expert Panel on the Review of Environmental Assessment Processes" for Calgary, November 21, 2016

Ecojustice

December 07, 2016

Presentation "Avoiding the 'Tyranny of Small Decisions': A Canadian Environmental Assessment Regime for the 21st Century" for Calgary, November 21, 2016

Martin Olszynski

December 07, 2016

Submission "Avoiding the 'Tyranny of Small Decisions': A Canadian Environmental Assessment Regime for the 21st Century" for Calgary, November 21, 2016

Martin Olszynski

December 07, 2016

Submission "Submission to the Expert Panel for the Review of the Federal Environmental Assessment Process" for Calgary, November 21, 2016

Alan Harvie

December 07, 2016

Presentation "CEAA Expert Panel" for Calgary, November 21, 2016

Imperial

December 07, 2016

Presentation "Presentation to Expert Panel" for Calgary, November 21, 2016

Canadian Association of Petroleum Producers

December 07, 2016

Presentation "Presentation to Expert Panel Reviewing the Canadian Environmental Assessment Process" for Calgary, November 21, 2016

ATCO

December 07, 2016

Presentation "Regaining and Instilling Public Trust in Federal Environmental Assessment Processes" for Calgary, November 21, 2016

Alberta Wilderness Association

December 07, 2016

Presentation "Présentation au Comité d’experts chargé de l’examen des processus d’évaluation environnementale" for Calgary, November 23, 2016

In Situ Oil Sands Alliance

December 07, 2016

Presentation "Presentation to the Expert Panel Reviewing Environmental Assessment Processes" for Calgary, November 23, 2016

In Situ Oil Sands Alliance

December 07, 2016

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