Government of Canada

 

Back Fredericton, NB

The Expert Panel for the review of environmental assessment (EA) processes met in Fredericton on October 11-12, 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 - October 11, 2016

The Panel heard many perspectives on what EA should achieve. Some identified EA as a decision making tool with an outcome to permit development in the public interest while mitigating significant adverse environmental effects. Others encouraged a major overhaul of EA to have it be centered on learning and sustainability with lasting shared benefits. The Panel also heard EA should consider the need for a project as well as the level of acceptable risk by society.

Participants identified that international and national environmental and social commitments should be considered in EA. However, participants voiced concerns that project EAs have become a forum for debating public policy. They noted that strategic EAs would be better suited and could help set baseline criteria and thresholds to inform project EA.

It was also noted that, in order to increase certainty in the process, information requirements, timelines, and participation opportunities need to be predictable to proponents and other interested parties.

Overarching Indigenous Considerations

Public sessions - October 11, 2016

The Panel heard that Indigenous rights must be fully recognized and respected and that impacts on Indigenous people must be reconciled early in the EA process to prevent any significant impacts. A tool with information on Indigenous lands and treaties was proposed to ensure that all potentially affected Indigenous groups are meaningfully engaged and their rights considered. It was also suggested that national minimum standards for Aboriginal consultation be established.

The need to establish better relationships with Indigenous people was also mentioned. Participants suggested that EA processes be co-governed with First Nations and noted the importance of respecting Indigenous governance structures and processes.

Indigenous sessions - October 12, 2016

The Panel heard concerns from numerous presenters about the time constraints for the EA review process, including short notice and inadequate time to prepare for engagement sessions in Fredericton. It was identified that there is a lack of clarity with the consultation that will be undertaken on any proposed legislative changes and whether the ongoing process meets the duty to consult.

The Panel heard that the legislation should be amended to provide opportunities for adequate consultation, engagement, and participation. Presenters shared their consultation experiences during the federal EAs for the Energy East and Sisson Projects. It was recommended that early engagement and consultation should be improved to create transparency and strengthen relationships needed to address concerns. Further, the Panel heard there is a lack of clarity as to whether the Canadian Environmental Assessment Agency delegates procedural aspects of the duty to consult to proponents; it was recommended that the Canadian Environmental Assessment Agency clearly delegate procedural aspects to proponents in writing. Further, concerns were raised that the potential for impacts and consultation requirements are determined based on proximity of projects to reserves, rather than traditional territory or rights.

The Panel heard that consultation needs to be conducted in good faith, with consideration and identification of accommodation. Presenters shared information about the Peace and Friendship Treaties, identifying that the treaties did not include the ceding of land. For this reason, consideration of impacts to Aboriginal title and identification of accommodation for any impacts is integral. It was recommended that environmental legislation be amended to recognize Aboriginal and treaty rights, including overarching respect of section 35 rights, and consistency with the United Nations Declaration of the Rights of Indigenous Peoples (UNDRIP).

The Panel heard there is a disconnect between First Nations needs and what the government and proponents are willing to offer through the EA process. It should be recognized that there are three levels of government: First Nations, provincial and federal. Reconciliation involves shared jurisdiction over lands and resources, including collective decision making by all three levels in EA processes. First Nations should have decision making authority where there may be significant impacts to rights or the environment. The Panel heard that this process would be consistent with the implementation of the principle of free, prior, informed, consent (FPIC) defined in the UNDRIP. EA legislation must require consent prior to approval; it was suggested that consent could be provided through impact benefit agreements with the proponent or accommodation agreements with the government. Presenters called for the government to uphold its promise of a nation to nation relationship by implementing UNDRIP and FPIC.

The Panel heard concerns about the lack of capacity for First Nations to participate in EA processes. It was identified that technical and legal capacity is needed so that communities have those resources readily available when a new project is proposed. Without adequate funding and capacity, the consultation process was described as an exercise in blowing off steam. It was identified that participant funding does not provide adequate capacity and that recipients and amounts should not be determined unilaterally.

The Panel heard that Indigenous knowledge studies are a critical component to the EA process to ensure consultation is meaningful and to support reconciliation. It was identified that Indigenous knowledge is a value system that is broader than traditional or past use, and knowledge of resources. Currently, proponents conduct scientific studies first, and where there is conflict with traditional knowledge, base decision making on the scientific outcomes. It was recommended that Indigenous and western knowledge should be weighted equally, and a conflict resolution mechanism developed to reconcile differences. Further, Indigenous values should be integrated into resource management.

The Panel heard there is a gap in the collection of Indigenous knowledge for projects that no longer require an EA under the Canadian Environmental Assessment Act, 2012 (CEAA, 2012). It should be recognized that the duty to consult is a distinct responsibility that does not flow from the EA process. Participants indicated that at present this principle is not respected and projects that are not subject to CEAA, 2012 do not include assessment of potential impacts to Aboriginal and treaty rights or the collection and consideration of traditional knowledge.

Planning of Environmental Assessment

Public sessions - October 11, 2016

There were many different views on when an EA should be required. Some participants supported the current regime where the focus is on larger, more potentially significant projects. They noted that smaller less complex EAs have limited potential for significant impacts or have well established mitigation measures. Other participants suggested that EAs be required for any projects that may have transboundary impacts or impacts on the environment, human health, and international and national commitments. It was also suggested that federal EAs be required when provincial EAs are not applicable or are bias in favour a project. Some participants also voiced concern that there are some large projects not being assessed, such as aquaculture.

The Panel heard that EA should focus solely on components of the environment that are within federal purview. Others suggested that the scope be as broad as possible and consider the impacts on all ecosystems, socio-economic and human health impacts, and alternatives to the project. The Panel also heard that to achieve the best outcome, the risks of impacts without mitigation needed to be better understood so that the best mitigations can be considered. The Panel also heard that project EA is not well suited for assessing broad cumulative effects. It was suggested that cumulative impacts from all development, including small projects, be assessed at a regional level and the results subsequently used to inform project EA.

Indigenous sessions - October 12, 2016

The Panel heard from several presenters that widespread loss of lands throughout their traditional territory has led to cumulative effects on First Nations traditional land use, economic activities and culture. These cumulative effects are rarely assessed at an adequate level, as developments that occurred in the past, and are proposed in the future are not taken into consideration. These effects are allowing piecemeal extinguishment of Aboriginal title, and create significant challenges to First Nations culture and way of life. It was identified that regional planning, including documentation of traditional land use throughout First Nations territory may be an option to support resource management in the future. This approach could allow First Nations to identify their resources, knowledge, and needs, and enable communities to be forthcoming with information, rather than reactionary.

Conduct of Environmental Assessment

Public sessions - October 11, 2016

The Panel heard of the need to have an EA process that is credible, transparent, predictable, consistent and accountable. Participants were of the view that any government body that has conflicting mandates of exploitation and protection should not conduct EAs. Alternatively, EAs should be conducted by a single independent body such as the Canadian Environmental Assessment Agency. Participants voiced that this would help improve trust, consistency, predictability and quality of EA. The Panel also heard about whether proponents should conduct EA studies as they have the most to gain. Participants proposed that an independent body conduct or peer review the EA study. It was also suggested that the proponent’s study should focus on effects and that questions of significance be left to a separate body.

The Panel also heard concerns about the quality of EAs. Participants noted that the methods of assessing project effects can be insufficient (e.g. only examining one season of data), instead of considering trends. This can often lead to a conclusion of no significant effects and distrust in the results. With regards to timelines, some participants expressed the need for predictable and timely reviews so that economic benefits of a proposed project are not stifled.

Indigenous sessions - October 12, 2016

The Panel heard about the current process for collecting traditional knowledge and land use information, following principles of ownership, control, access and possession. The Panel heard that proponents often fund Indigenous knowledge and land use studies, creating distrust in communities with the neutrality of information collected, and discouraging some from participating. This process limits the quality of studies completed and the ability of First Nations to protect their rights. It was identified that while it would be acceptable for the government to use a cost recovery model to recoup these costs from the proponent, the government should fund the First Nations directly as part of the duty to consult.

Decision and Follow-up

Public sessions - October 11, 2016

The Panel heard that high quality information is needed to make informed decisions and that this could be achieved by using the best available unbiased science. Participants also noted that traditional and community knowledge may help in identifying gaps in empirical evidence. However, more guidance is needed to reconcile both types of information. Participants also suggested that EAs considers citizen values in order to receive social license.

With respect to the decision-making process, the Panel heard that affected communities should be involved in EA decisions to determine the level of risk they are willing to accept. Some participants thought that there should be an attempt to reach consensus and suggested having a governing body with equal representation of government, public, Indigenous and other stakeholders. Other participants thought that EA decisions should be left to government with the Canadian Environmental Assessment Agency providing advice. Participants also expressed the need to have decisions more transparent with a rational on how the decision was reached.

The Panel also heard about the need to conduct comprehensive monitoring to test the predictability of EAs, to look at long terms effects and to inform future projects. With respect to who should conduct monitoring activities, participants had competing views. Suggestions included subject matter experts, regulatory authorities, an independent organization such as the Canadian Environmental Assessment Agency or the proponent.

To help manage uncertainty of EA predictions, participants proposed a process to review decisions if impacts are underestimated or unforeseen. Participants also noted the importance of having consequences and penalties when mitigations are not properly implemented and the need for additional government capacity to effectively conduct compliance and enforcement.

Indigenous sessions - October 12, 2016

The Panel heard that the creation of conditions was one of the positive aspects of CEAA, 2012 because it gave teeth to the process.

Public Involvement

Public sessions - October 11, 2016

Participants expressed the need to have a stronger educational component in EA and suggested that information be made more transparent and easier to understand. Participants also noted that strict timelines and lack of funding were creating roadblocks for meaningful participation and suggested that these be increased. The Panel heard about the need to have multiple opportunities to participate throughout an EA, including on the process and guidelines. Participants also noted the importance of using various methods for engagement and stressed the need to have more engagement in locally affected communities. Participants also expressed that to increase trust in EA processes, their input must be acknowledged, and how it was considered and addressed must be made clearer.

Concerns were raised with the National Energy Board’s quasi-judicial process. Participants identified that the process lacks transparency, is too formal, and provides llimited opportunities for participation for directly affected communities.

Indigenous sessions - October 12, 2016

The Panel heard that the government must fund or require proponents to fund First Nations to participate. Presenters identified that as the Panel considers guidelines for providing sufficient funding there are three components to Indigenous involvement in EA that should considered: Indigenous knowledge studies, technical studies and review, and community engagement.

The Panel also heard that the timelines for EAs should be developed on a project by project basis, with the agreement of all parties. It was stated that the current timelines do not permit meaningful engagement nor the collection and incorporation of traditional knowledge.

Coordination

Public sessions - October 11, 2016

Participants agreed with the principle of one project one assessment and that jurisdictions should make their own decisions. However, some voiced concerns regarding federal reliance on provincial processes. Participants noted that provincial EAs can be weaker, have limited public participation, and lack funding to conduct comprehensive EA. Participants also noted distrust with provincial EAs as governmental officials have in the past publicly supported projects prior to the completion of an EA. Participants suggested that the federal government continue to provide support for provinces with limited resources, establish EA standards and have an oversight role, or use harmonized processes to enhance EAs. To reduce duplication, participants suggested coordinating early and making information available to all parties involved.

Indigenous sessions - October 12, 2016

The Panel heard concerns about the lack of coordination and clarity of roles and responsibilities between the provincial and federal governments during recent EAs. These concerns included a lack of coordination of the duty to consult and identification of accommodation. Multi-jurisdictional processes need to be better harmonized, with the federal government taking a leadership role to provide consistency where there are impacts to First Nations. It was noted that independent decision making of each jurisdiction should be maintained.

Annex I

Public sessions - October 11, 2016

List of Presenters

  • Scott Kidd
  • Mark Butler, Ecology Action Centre
  • Denise Melanson
  • Gary Schneider, Environmental Coalition of Prince Edward Island
  • Vanessa Roy-McDougall, Nature NB
  • Barb Mackinnon
  • Charles Hickman, NB Power
  • Lois Corbett, Conservation Council of New Brunswick
  • Greg Wilson, Department of Communities, Land and Environment, Prince Edward Island
  • Sabine Dietz
  • Sharon Murphy
  • David Thompson

Workshop Participants

  • There were 18 participants.

Indigenous sessions - October 12, 2016

List of Presenters

  • Fred Sabattis, Oromocto First Nation
  • Russ Letica, Madawaska Maliseet First Nation
  • Deana Sappier, Tobique First Nation
  • Ken Francis, Elsipogtog Mik’maq First Nation
  • Gordon Grey, Kingsclear First Nation
  • Megan Fullarton, St Mary’s First Nation
  • Amanda McIntosh, Woodstock First Nation
  • Rosalie Francis and Mike Hennesey, Mi'gmawe'l Tplu'taqnn Incorporated

Open Dialogue Participants

  • There was 1 participant.

Submissions Received in Fredericton

Title

Author

Date Posted

View Full Submission

Speaking notes for Fredericton, Oct 11 2016

Denise Melanson

January 04, 2017

Speaking notes for Fredericton, Oct 12 2016

Oromocto First Nation

January 04, 2017

Transcript - Indigenous Presentations, Fredericton Oct 12

Fredericton Transcript

December 29, 2016

Presentation ''Federal Environmental Assessment, Perspectives from Saint John New Brunswick'' for Fredericton October 11

Sharon Murphy-Flatt

October 20, 2016

Presentation ''Review of Canadian Federal Environmental Assessment Processes'' for Fredericton October 11

Scott Kidd

October 20, 2016

Presentation ''Presentation to the Expert Panel to Review Environmental Assessment Processes'' for Fredericton October 11

Mark Butler, Ecology Action Centre

October 20, 2016

Presentation ''Environmental Assessment in PEI'' for Fredericton October 11

Greg Wilson, Department of Communities, Land and Environment Prince Edward Island

October 20, 2016

Presentation ''Presentation to Expert Panel'' for Fredericton October 11

Gary Schneider, Co-chair, Environmental Coalition of Prince Edward Island

October 20, 2016

Presentation ''Presentation to the Panel on Environmental Impact Assessments'' for Fredericton October 11

Denise Melanson

October 20, 2016

Presentation ''Canadian Environmental Assessment Act: NB Power Perspective'' for Fredericton Oct 11

Charles Hickman, NB Power

October 20, 2016

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