Government of Canada

 

Back Fort McMurray, Alberta

The Expert Panel for the review of environmental assessment (EA) processes met in Fort McMurray on November 23rd and 24th, 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 23rd and 24th, 2016

The Panel heard that federal EA should have a clear and defined purpose, timely and coordinated processes, and the capacity to support meaningful Indigenous engagement. Participants told the Panel that federal EA needs to properly balance environmental and economic goals and consider the broad public interest. Participants suggested that decisions on how environmental concerns were balanced with economic concerns need to be transparent and clearly stated in order for the public to trust the process. The Panel also heard that the EA process needs to be independent and free of any bias in order to achieve trust.

Indigenous session – November 24th, 2016

Participants suggested that the recommendations of the Panel should be far ranging and focus on putting reconciliation at the centre of a new EA regime. The Panel heard that current EA processes have permitted unprecedented environmental degradation over the last few decades and have failed to assess and mitigate impacts to the environment and to Aboriginal and Treaty rights. Participants suggested that EA that involves Indigenous peoples from the development of the terms of reference through to decision making and that respects Aboriginal and Treaty rights is critical to reconciliation.

Overarching Indigenous Considerations

Public sessions – November 23rd and 24th, 2016

Participants suggested that the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) be used as a framework for reconciliation, in keeping with Canadian laws. The Panel was told that Indigenous participation in resource development is important and that federal and provincial consultation and accommodation processes should be aligned to enable this. The Panel heard contrasting views on the ability and willingness of the Alberta Aboriginal Consultation Office to appropriately scope its considerations of impacts to Indigenous peoples, and to meaningfully consult and accommodate.

The Panel heard that Impact Benefit Agreements (IBAs) can be an important step in obtaining consent, but in order for this to occur, true dialogue and negotiation must be undertaken.

Indigenous session – November 24th, 2016

The Panel heard examples of impacts to Aboriginal and Treaty rights, and heard about the challenges faced by Indigenous groups in having their rights recognised. Participants demonstrated the continued encroachment of development within their traditional territories and noted that the option to go elsewhere to exercise their rights is disappearing. The Panel heard that EAs put an unfair burden on Indigenous peoples, particularly Métis peoples, to protect their own rights and interests. Participants explained that proponents regularly have limited understandings of Indigenous peoples and their rights and that Canada should play a leadership role by providing clear direction to proponents. Participants noted that the province of Alberta does not require proponents to engage with Métis people and that the federal government must ensure that Métis rights are protected.

Participants explained their reliance on and connection to the land, including the water in the Athabasca River and the Peace-Athabasca Delta and the wildlife across the region. The land was described as important for sustenance and the exercise of rights. The Panel heard that disruption of the landscape, and negative changes to air and water quality and the health of plant and wildlife species of importance, is occurring around many of the Indigenous communities in the region. In this regard, participants drew connections between biophysical effects, health and socioeconomic effects, and impacts to rights, noting that these interconnections need to be recognised in EA and addressed in consultation.

The Panel heard that Indigenous traditional knowledge must be considered in EA, as it is critical to having a complete understanding of the effects of a project on the environment and on rights. Participants proposed that established traditional knowledge frameworks be applied in EA. Participants expressed that traditional knowledge is a living thing that requires culturally important spaces, and drew the link between impacts to the landscapes and challenges to maintaining traditional knowledge. Participants suggested that traditional knowledge studies should be done early to inform western science studies. It was also suggested that traditional knowledge studies could take the questions being posed in western science studies and seek to answer these questions and reconcile the answers. Participants identified the need for traditional knowledge baseline information.

The Panel heard that IBAs have a place within EAs, but that the government must require more of proponents with regards to the assessments completed. Participants stated that if proponents are not required to assess impacts to rights, then these assessments will not be undertaken and therefore fully informed IBAs cannot be negotiated.

The Panel heard that revenue sharing is an accommodation of interest to participants. Participants stated that this idea is frequently raised with the province to no avail.

Planning of Environmental Assessment

Public sessions – November 23rd and 24th, 2016

The Panel heard that the current approach to “trigger” an EA is too focused on large scale projects and is too prescriptive. Participants were concerned that there may be projects falling through the cracks as a result. Participants suggested that regional planning should be carried out as a solution, in order to look at activities in an entire watershed or effects on a biome.

The Panel heard that the determination of the scope of an EA should be flexible since detailed engineering and planning has usually not been done. Participants were concerned with a number of effects and factors in EA. They suggested that socio-economic and health impacts need to be considered in an EA and that traditional knowledge must be used in assessing effects.

Participants encouraged federal EA processes to focus on federal jurisdiction. They suggested that when there are interjurisdictional or transboundary issues with a project, the federal government should be involved.

Indigenous session – November 24th, 2016

Participants identified concerns with the project list established under the Canadian Environmental Assessment Act, 2012, and explained that this process encourages proponents to phase projects to avoid triggers for federal EAs. They suggested that proponents be required to meet with regulators regularly to discuss conceptual plans and enable regulators to monitor for potential project splitting. They also identified that the project list should be broadened or the trigger process should be reinstated.

Participants shared views on what should be considered within the scope of EA. The Panel heard that EA must directly consider Aboriginal and Treaty rights and that determinations of impacts to rights should result from EA processes. Participants noted that it is currently unclear whether impacts to rights are actually assessed e and what methodology may be employed by government in undertaking this assessment. Participants explained that EA review panels have been interested in hearing about constitutional issues but have refused to make any kind of determination on such matters. Additionally, the Panel heard that impacts to health should be considered in EA and that adequate baseline studies would be required to effectively do so. Participants noted that sacred sites need to be identified and protected. Participants also explained that a broader spectrum of biophysical effects and their interconnections to land use such as impacts to moose and medicines, or effects on biodiversity, should be assessed. These impact assessments are required so that mitigation of identified impacts can be planned and undertaken. The Panel was told that considering only current use of lands, when such use may be limited by existing development, is inappropriate. Instead, EAs should consider past and potential future land use. Participants noted that where these issues cannot be fully dealt with within the scope of an EA, the Crown should engage and consult with Indigenous peoples outside of regulatory processes.

The Panel heard about cumulative effects and the pace and scale of development in northeastern Alberta, specifically the development of oil and gas resources. Participants expressed concern that the majority of resource extraction projects in the region do not require federal EAs because in-situ oil sands developments do not require review under the current legislation. Participants noted that exploration activities and projects utilizing new technologies for oil extraction, such as solvent based extraction processes, should require a federal EA. Participants expressed concern about these projects not undergoing federal review and identified deficiencies of the provincial process, describing the Alberta EA process as prescriptive and predetermined. Further, with respect to cumulative effects, the Panel heard that inadequate baseline data and unwillingness to consider pre-development baseline in cumulative effects assessments hinder full understanding of the effects experienced in the region. Participants identified that the government should complete a regional cumulative impact assessment.

Conduct of Environmental Assessment

Public sessions – November 23rd and 24th, 2016

The Panel heard that EAs could draw upon existing studies and information to inform assessment of effects. Participants noted that Indigenous traditional knowledge should be included in federal EAs along with western science. The Panel heard that any data collection and analysis could have bias, in particular with regards to the role of the proponent in preparing the Environmental Impact Statement, but that good EA could be completed by any party in keeping with the ethics of the International Association for Impact Assessment.

Indigenous session – November 24th, 2016

The Panel heard that joint review panels were frustrating and adversarial processes in which Indigenous peoples were not respected. Participants provided examples of disrespectful cross examination, such as elders being questioned about their formal university based credentials. Further, participants noted that it is difficult to get answers to their questions, with requests often being delivered to federal experts without any meaningful responses. Participants identified lack of resourcing within departments as contributing to this problem.

Participants identified that there are capacity issues within government departments that complete and review EAs. Some reviewers do not have the expertise necessary. They also identified bias in the preparation of the EIS by consultants retained by the proponent. It was suggested that one solution to this bias would be for methodology to be scoped by a third party and standardized.

Decision and Follow-up

Public sessions – November 23rd and 24th, 2016

The Panel heard varied perspectives on EA decision-making and follow-up. The Panel heard that federal EA decisions should focus on areas of federal jurisdiction and recognise the provinces as the life-cycle regulators of mining, but also that federal EA should address a broad spectrum of impacts to Indigenous peoples and rights. Support for the decisions made by provincial regulators was mixed, from full support to suggestions that provincial regulators have fallen prey to regulatory capture and cater to industry.

Participants expressed concerns about Cabinet being the final decision-maker for projects with significant adverse environmental effects, as they believed Cabinet has political influences that will affect its ability to make a science-based decision. The Panel heard that regardless of who makes the decision, the process needs to be transparent and one way to achieve this is to establish clear decision-making criteria.

Participants stated that conditions should be clear and should leave space to adapt to evolving knowledge, needs, and risk. The Panel heard concerns about the capacity for the federal government to enforce the conditions it sets. Participants wanted additional resources to be allocated to compliance and enforcement and suggested that perhaps partnerships with provinces could help alleviate some of the capacity issues related to enforcement. Participants also suggested that community-based monitoring could be done by local Indigenous people or communities in order to verify the accuracy of EA predictions.

Indigenous session – November 24th, 2016

With respect to decision-making in EA, the Panel heard that increased transparency in EA processes is required. Participants noted that governments should provide explanations and justifications for their decisions. For panel reviews, they suggested that the government should be required to track how it responded to each of the panel’s recommendations. The Panel heard that Indigenous rights should be considered within public interests tests.

The Panel heard about a lack of enforcement, follow-up, and monitoring within current EA. Participants raised concerns with joint review panel recommendations being only recommendations and not conditions within the government’s decisions, noting that many joint review panel recommendations are never implemented. Participants identified that there is insufficient monitoring in the region and inadequate requirements of proponents to monitor and take action where monitoring demonstrates that effects are occurring. They identified that modelling completed during EAs should be updated with monitoring data to confirm results and develop adaptive management. Participants explained that many communities would like to undertake community-based monitoring, but there are not enough resources. For example, participants expressed concerns that even less monitoring and less trusted monitoring would be undertaken as a result of the province’s decision to no longer require industry to fund the Cumulative Environmental Management Association. The Panel heard that there are ad hoc studies completed in the region that identify problems and confirm Indigenous communities’ concerns with contaminants, but that these studies often do not result in action.

Participants identified that there should be a review process for federal EA decisions. They suggested that a 5 to 10-year review or renewal of EAs be put in place to allow for decisions to be revised based on monitoring results.

Public Involvement

Public sessions – November 23rd and 24th, 2016

The Panel heard that directly affected stakeholders should be engaged in EAs and that the federal process should align with provincial processes for harmonized engagement and consultation.

Participants told the Panel that the current registry is not a reliable way to access EA-related information. Specifically, participants found it difficult to find the documents they were looking for and suggested improvements in navigation and the ability to search for information on the site.

Participants voiced their concerns around a potential lack of knowledge about the EA process of some proponents. They suggested that the federal government play a bigger role in informing the public and specifically proponents about the requirements of federal EA law.

Indigenous session – November 24th, 2016

Participants expressed concerns with the current EA process and the perceived limitations in place to meaningful participation. The Panel heard about the challenges with short timeframes to review large volumes of information and consult a dispersed membership about potential effects, as well as the challenges associated with addressing a large volume of project applications with limited staff and insufficient funding. Participants explained that it takes consultation coordinators considerable time and effort to engage with their membership, land users, and knowledge holders on a project.

Coordination

Public sessions – November 23rd and 24th, 2016

Participants spoke in favour of the “one project, one review” approach and coordination with provincial processes and expressed a desire for duplication to be minimized. The Panel heard differing views on the federal EA process relative to the provincial process, with some participants noting that the provincial process addresses all needs well and other participants noting the provincial process was insufficient and the federal process was more transparent.

Indigenous session – November 24th, 2016

Participants suggested concerns with duplication of processes are largely unfounded, because in their view the Alberta EA process is simply rubber stamping and approving. The Panel heard that provincial processes do not constitute meaningful consultation and do not address impacts to Indigenous people that are included under federal EA.

Annex I

Public sessions – November 23rd and 24th, 2016

List of Presenters

  • Dan Stuckless
  • Peter Read, Syncrude Canada Ltd.

Workshop Participants

  • There were 9 participants.

Indigenous session – November 24th, 2016

List of Presenters

  • Melody Lepine and Carl Braun, Mikisew Cree First Nation
  • Melina Scoville, Lakeland Métis Local #1909
  • Doreen Somers and Elder Pat Marcel, Athabasca Chipewyan First Nation
  • Lisa Shaldemose and representatives from Fort McMurray Métis, Fort Chipewyan Métis,
  • Fort McKay Métis, Conklin Métis, and Fort McKay First Nation
  • Alvaro Pinto, Fort McKay First Nation

Open Dialogue Participants

  • There were 18 participants.

Submissions Received in Fort McMurray

Title

Author

Date Posted

View Full Submission

Transcript - Indigenous Presentations, Nov 24 2016

Fort McMurray Transcript

January 12, 2017

Presentation "ENVIRONMENTAL ASSESSMENT: REVIEW PANEL" for Fort McMurray, Nov 24 2016

Daniel Stuckless

December 15, 2016

Presentation "Review of Federal Environmental Assessment (CEAA)" for Fort McMurray, Nov 24 2016

Fort McMurray Métis, Fort Chipewyan Métis, Fort McKay First Nation, Fort McKay Métis & Conklin Métis

December 15, 2016

Presentation "Expert Panel Review of Environmental Assessment Processes" for Fort McMurray, Nov 24 2016

ACFN IRC

December 15, 2016

Presentation "Presentation to the Expert Panel: Review of Environmental Assessment Processes" for Fort McMurray, Nov 24 2016

Mikisew Cree First Nation

December 15, 2016

Presentation "Review of the Federal Environmental Assessment Process Presentation to the Expert Panel" for Fort McMurray, Nov 24 2016

Syncrude Canada Ltd.

December 15, 2016

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