Government of Canada

 

Back Fort St. John, BC

The Expert Panel for the review of environmental assessment (EA) processes met in Fort St. John on December 5-6, 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 – December 5, 2016

The Panel heard various views on what federal EA should achieve and the extent to which it should consider the environment, social matters and the economy. Some participants stated that the outcome of EAs should be environmental, social and economic sustainability. Others expressed the need to put ecological systems on a priority so as to ensure that our basic needs are met; that is fresh air, clean water, and fertile soil. Participants also stressed the need to consider alternatives as well as consider whether projects are needed in the first place. Moreover, some suggested that if we do not have answers to critical questions, we should use the precautionary principle and not move forward with the project.

Indigenous sessions - December 6, 2016

The Panel heard that the intent of EA is to investigate impacts and find solutions and is meant to deal with issues over and above regulatory issues. Participants identified that the EA process should focus on impacts to First Nations, and must include a co-management decision-making process.

Overarching Indigenous Considerations

Public sessions – December 5, 2016

The Panel heard about the need for EA to ensure that Aboriginal and treaty rights are honoured. In addition, participants expressed the importance of respecting Indigenous traditional knowledge and the cultural significance of their lands.

Indigenous sessions - December 6, 2016

The Panel heard about how First Nations’ ability to practise their Aboriginal and Treaty rights has been affected by development, most notably in the oil and gas, agriculture, and hydro sectors. First Nations explained that they have a treaty responsibility to protect the lands, which is being ignored in the current EA process. It was identified by several participants that the EA process does not adequately assess or accommodate impacts to Aboriginal and Treaty rights, and that it should be revised to do so. It was suggested that EA studies be scoped appropriately to assess those impacts, including community involvement in the identification of valued components and indicators and in data collection. Participants explained that it is not acceptable to use bio-physical valued components as a proxy to assess impacts on rights. Participants also identified that the Canadian Environmental Assessment Agency lacks capacity to assess impacts on rights and proposed that assessment be completed by independent panels, a restructured Agency, or by communities themselves.

The Panel heard that Aboriginal and Treaty rights include culture, and that there is a need to assess cultural impacts from projects. Participants explained that culture is greater than archaeological artifacts and is tied to spirituality, regional identity and security. The definition of cultural impacts should include cultural landscapes, language, food security, values, and transmission of traditional knowledge. Participants also identified concerns with the assessment of impacts to land use, particularly the assumption that Indigenous peoples can go elsewhere to practise rights. They explained that this understanding is flawed: not all places are equal, rights are tied to preferred areas, and overall there are fewer places to go. Further, participants identified that impacts to health, psycho-social aspects of individuals, social services, and housing should also be assessed in an EA.

The Panel heard about capacity challenges that limit Indigenous participation in EAs, including time, resources, and funding. It was identified that adequate funding and training is required to support meaningful participation in EAs, including scoping, assessing and monitoring impacts.

The Panel heard that the principle of free prior and informed consent described in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) would be reflected by a collaborative consent process. The northern Canadian co-management processes were identified as a model for this process. Participants also identified that there are many other principles in UNDRIP that are relevant to the EA process.

The Panel heard that the federal EA process does not support or encourage the incorporation of traditional knowledge, particularly when provided through oral testimony. They explained that the current process enables proponents to reinterpret traditional knowledge and traditional land use information with impunity and without consent. It was identified that traditional knowledge is not just information and must be recognized and considered with western science to support decision-making, including the determination of significance.

Planning of Environmental Assessment

Public sessions – December 5, 2016

Numerous views were received by the Panel on when a federal EA should be required. While some were of the view that an EA should be required only when impacts on federal jurisdiction are expected, others suggested an EA be required for any major project. Some participants also suggested that an EA be conducted for any small project proposed in a region already experiencing impacts from other projects. Additionally, participants suggested that government should review those projects that used to require and EA under the old trigger-based approach to determine whether or not they are resulting in environmental impacts. If those activities have resulted in adverse impacts, then it was suggested to consider re-establishing a trigger-based approach. Another participant voiced the need to examine the threshold for what qualifies for an EA and suggested a values-based approach that is relevant to communities (i.e. health, socio-economic and environmental values threshold).

There were also discussions on the scope and factors to consider in an EA. Some participants suggested that alternatives to a project be assessed prior to the EA in order to identify other viable options that would have lesser impacts. When looking at impacts of a proposed project, participants voiced the need for a holistic approach that considers ethical, environmental, social, health and economic impacts. With regards to economic impacts, participants expressed the importance of considering the true costs, including natural capital and ecosystem services. Participants were also of the view that projects subject to an EA should be required to take into consideration the cumulative effects for the entire region surrounding the project. However, some participants said that this analysis should be conducted by the government.

Indigenous sessions - December 6, 2016

The Panel heard that the federal EA process should consider both the need for and alternatives to proposed projects. Participants explained that this assessment must be completed to substantiate societal needs for projects, avoid projects that impose unnecessary significant environmental effects, and support climate change objectives. It was also identified that alternatives analysis may provide a meaningful opportunity for consulting Indigenous peoples.

The Panel heard concerns that effects to species at risk, for example the boreal caribou, are not being adequately assessed through the federal EA process, resulting in impacts to these species.

The Panel heard concerns about project splitting. Participants noted that many projects which impact their Aboriginal and Treaty rights do not currently require a federal EA. They described the cumulative impacts from those projects as “death by a thousand cuts”. They advised that a threshold-based process for assessing cumulative impacts must be developed. They also identified that in order to avoid project splitting First Nations should be involved to identify EA triggers.

Participants identified that strategic and regional EAs are needed to assess impacts by industry as well as at a territorial level. Participants suggested that regional EA be used to consider upstream and downstream ecosystem level impacts from all development. It was also suggested that incentives be built into the legislation to encourage provinces and territories to participate in regional EA.

Conduct of Environmental Assessment

Public sessions – December 5, 2016

The Panel heard of concerns over strong ties between project proponents and the government. Participants shared issues with review panel members being chosen by proponents, with scoping EAs in a manner that favors the project, and with government leaders supporting the outcome of proposed projects undergoing an EA. To address this perceived bias, participants suggested making a requirement preventing government officials from expressing support for projects prior to the completion of an EA. Others suggested that EAs be conducted by an independent body rather than government and that review panels include experts relevant to the EA rather than industry representatives.

Participants also expressed concerns over the proponent’s role in the conduct of studies and the writing of the Environmental Impact Statement. Participants are of the view that there is a danger of bias being translated into the EA as the proponent’s vested interest may not necessarily be in the best interest of the public. Participants also expressed concerns over the quality of proponent studies and shared experiences of discrepancies between the findings of the proponent and those of independent experts. It was suggested that either proponent’s studies be peer-reviewed or that those studies be conducted by an independent body or government.

Indigenous sessions - December 6, 2016

The Panel heard that the EA process is challenging for Indigenous groups because it is proponent-driven, and as a result they are excluded from the process. They identified that because the proponent is not required to fund community-based assessments, only proponent data is used to support decision-making. They recommended that the role of proponents should be limited to providing information and supporting effects characterization. The determination of significance should be completed by government.

Decision and Follow-up

Public sessions – December 5, 2016

Participants were of the view that the information upon which decisions are based should be accurate, verifiable, defendable and consistent with international best practices. The type of information suggested to be considered included baseline studies, scientific and empirical research, community knowledge, Indigenous traditional knowledge, and information from other similar projects. Some participants also expressed the need to obtain social license and that an appeal process be made available to prevent bad projects from being approved. Participants also expressed surprise and concern that review panel’s recommendations are not followed by government decision-makers. Given that review panel members are selected based on their relevant expertise and hear all the issues during the EA process, participants were of the view that their recommendations should have more bearing or that they should be given the power to make decisions. Participants also discussed the importance of transparency and requested that decisions, including the rationale and how comments were considered, be made publicly available.

The Panel heard of concerns regarding the proponent’s role in monitoring activities and with their lack of adequate self-reporting. For example, participants noted that proponents report issues only after they are discovered by another party or after an adverse effect has already occurred. Participants supported enforceable conditions and made several suggestions including that monitoring be conducted by an independent body or government, that random surprise inspection visits be conducted, that protection should be given for whistleblowers, and that the consequences for proponents for noncompliance be appropriate to the level of noncompliance. Participants were also of the view that inspection and monitoring information should be publicly available and kept up to date.

Indigenous sessions - December 6, 2016

The Panel heard options for who the decision-maker for future federal EAs should be. It was recommended that a quasi-judicial review panel be established as the decision-maker, with a provision for Cabinet to disagree with the decision if substantiated. Participants recommended that review panels include Indigenous representatives. It was also identified that review panels be able to retain their own experts to support decision-making. Further, participants recommended that panels spend time on the land with elders in order to understand impacts, and support decision-making.

The Panel heard that there is a need for the Crown to improve the implementation of monitoring and adaptive management. Participants suggested that compliance and enforcement be managed by a joint First Nation-government compliance division. Participants identified that First Nations stewardship should be supported by capacity funding from the government for participation in EAs and compliance monitoring. It was recommended that all decision statements include a requirement for Indigenous involvement in monitoring and adaptive management.

The Panel heard that conditions of EA approval must be legally-binding, and must include requirements for reporting to ensure transparency. Participants identified that there is a need to increase accountability of proponents for clean-up and rehabilitation of projects, and identified that fines are not enough for large companies. It was suggested that companies should not be able to obtain future licenses or permits if they do not comply with regulations or conditions.

Public Involvement

Public sessions – December 5, 2016

The Panel heard of the need to have sincere and meaningful public engagement, particularly in communities affected by a project. Participants want early engagement before a proposal is submitted to government and to be actively engaged during an EA. Two options were proposed, either a collaborative approach throughout an EA with all stakeholders, or a continuation of the current adversarial process but with the provision of various opportunities to participate and provide input.

The Panel heard concerns that the public, Indigenous groups and other stakeholders are not on a level playing field with proponents. Participants suggested realistic timeframes and adequate funding for participation, that EA information is provided in laymen’s terms, and the establishment of a conflict resolution process to facilitate issue resolution. Participants also showed a preference over public meetings rather than open houses as these permit dialogue where people can ask questions and learn. There was also a suggestion that EA hearings be a quasi-judicial process where testimony is given under oath and there is cross-examination with full procedural safeguards. However, recognizing that these types of hearings can be difficult for the public to participate, it was suggested that it be flexible to facilitate general public participation.

Indigenous sessions - December 6, 2016

The Panel heard that people have lost faith in the federal EA process and no longer want to participate due to a feeling that projects will go ahead anyway. Participants identified that a process is needed where people feel that their input matters. They identified that the hearing process is intimidating to community members and land users and suggested the formation of elders committees as an alternative. In order to ensure voices are heard and to support reconciliation, the process must be early, comfortable, accessible, and dynamic.

Participants requested that guidelines for early consultation by proponents be developed. Additionally, the timelines for participation must be adjusted to ensure communities have the time needed to participate in reviews. Participants noted that consultation must include local people, both Indigenous and not, who live and work in the affected communities.

The Panel heard about challenges faced by rural community members to participate in EA processes and to have their views represented in decision-making.

Coordination

Public sessions – December 5, 2016

The Panel heard that more clarity is needed on the issues over which the federal and provincial governments have jurisdiction in the EA process so that stakeholders understand where to focus their efforts. Some participants also expressed that one project, one EA is faster and should be encouraged.

Indigenous sessions - December 6, 2016

The Panel heard concerns with the substitution of federal EAs to the province of British Columbia. Participants explained that the provincial EA process is less rigorous than the federal process and does not adequately consult with or assess impacts to Aboriginal peoples, as is required under section 5(1)(c) of the Canadian Environmental Assessment Act, 2012. Further, federal experts are not meaningfully engaged in substituted EAs resulting in gaps of expertise. If substitution continues in the future, the decision must include input from Indigenous groups and be guided by clear requirements to fulfill the duty to consult and engage federal experts.

Participants identified challenges in participating in coordinated provincial-federal processes because the timelines for review do not align. It was suggested that longer coordinated timelines be established for coordinated EA processes.

The Panel heard about a First Nations independent review process, with funding from proponents, that undertakes a technical review and analysis of impacts combining traditional knowledge and western science. It was suggested that in the future reviews should be completed in cooperation with the government, and not as a third party. As part of this coordinated review, First Nations could assess impacts on Aboriginal and Treaty rights. A coordinated, co-management process would also allow Indigenous groups and government to work together to help proponents understand EA requirements.

Annex I

Public sessions – December 5, 2016

List of Presenters

  • Emma Hodgson
  • Ken Forest
  • Gwen Johansson
  • Randal Hadland
  • Ken Boon
  • G. Neil Thompson
  • Andrea Morison, Peace Valley Environment Association
  • Amanda Trotter, Fort St. John Women's Resources Society
  • Lori Ackerman, City of Fort St John & Northeast B.C. Resource Coalition
  • Shelley Ouellette
  • Rick Koechl, Peace Valley Environment Association

Workshop Participants

  • There were 13 participants.

Indigenous sessions - December 6, 2016

List of Presenters

  • Rick Hendriks - Camerado Energy Consulting Inc., Advisor to Doig River First Nation
  • Lana Lowe and Kathie Dickie (by teleconference) - Fort Nelson First Nation
  • Cec Heron, on behalf of Chief Trevor Makadahay - Doig River First Nation
  • Cec Heron and Shona Nelson - Doig River First Nation
  • Fred Didzena - Dene Tha’ First Nation
  • Carmen Marshall and Naomi Owens – Saulteau First Nations
  • Yvonne Tupper – community member from Saulteau First Nations
  • Arthur Hadland - citizen and food producer

Open Dialogue Participants

  • There were 2 participants.

Submissions Received in Fort St. John

Title

Author

Date Posted

View Full Submission

Speaker notes for presentation in Fort St. John, Dec 5 2016

Rick Koechl

January 13, 2017

Transcript - Indigenous Presentations, Fort St.John Dec 6 2016

Fort St. John Transcript

January 09, 2017

Transcript - Public Presentations, Fort St.John Dec 5 2016

Fort St. John Transcript

January 09, 2017

Submission and attachments from Arthur Hadland for presentation in Fort St. John, Dec. 5 2016

Arthur Hadland

January 09, 2017

Speaking notes for Chief Makadahay and Cec Heron “Presentation to the Federal EA Review Panel” in Fort St. John Dec. 6th 2016

Doig River First Nation

January 05, 2017

Speaking notes for presentation in Fort St. John, Dec. 6 2016

Rick Hendriks, Advisor for Doig River First Nation

January 05, 2017

Presentation ""Need for" and "Alternatives to" in the Canadian Environmental Assessment Act" for Fort St. John, Dec. 6 2016

Rick Hendriks, Advisor to Doig River First Nation

January 05, 2017

Presentation “Industries Impact on Local Aviation” for Fort St. John December 5, 2016

Neil Thompson

December 23, 2016

Presentation "Federal EA Review - New Generation 2017: Science " for Fort St. John Dec. 5 2016

Ken Forest

December 02, 2016

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