Government of Canada

 

Back Nanaimo, BC

The Expert Panel for the review of environmental assessment (EA) processes met in Nanaimo December 14th and 15th, 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 14th, 2016

The Panel heard that there are a number of overarching concerns that must be considered in advance of an EA moving forward. For example, the Government of Canada has identified a number of Ecologically and Biologically Significant Areas (EBSA) that participants were concerned are not being well protected and should be considered in the EA process. Participants were also concerned that the EA process is a difficult place to deal with some big picture questions. The Panel heard that the Government of Canada should be having big picture discussions in advance of projects entering the EA phase. It was suggested that there could be a “red light”, “yellow light”, “green light” process in the screening phase to determine no-go projects, projects that can enter the EA phase but require significant attention, and projects that can go through a quicker, less rigorous EA because they meet the overall policy direction of Canada.

Participants suggested that the purpose of a new EA process should be the sustainability of the environment in the present and the future. The Panel heard that a new process should focus on protecting ecosystems and take a holistic approach at evaluating the environment.

Participants voiced their concerns about the objectivity of the current process and suggested that any new process should focus on transparency, accountability, independence and openness. The Panel was told that the current process lacks trust because it favors proponents and does not consider all relevant information to be equal.

Indigenous sessions – December 15th, 2016

The Panel heard that the challenge for the Expert Panel’s Review of EA processes is to frame potential changes to EA processes and the government’s relationship with Indigenous Peoples in nation-to-nation terms. Participants stated that the Panel’s work will not be successful unless it can convey its message through this prism and consider how to engender a healthy nation-to-nation relationship.

Participants also expressed that a healthy environment and economy should be objectives of EA processes, in alignment with sustainability principles. Participants thought that development should not compromise future generations.

Participants voiced their concerns about the impartiality of the process and recalled how the Canadian Environmental Assessment Agency used to be separate from government and thus more independent. There was a desire to go back to that arms-length separation and also move away from the narrowing of scope to only include matters of federal jurisdiction.

Overarching Indigenous Considerations

Public sessions – December 14th, 2016

The Panel heard that the current EA process does a poor job of addressing some of the major concerns of Indigenous people including assessing impacts to their constitutional rights. Participants suggested that the Government of Canada must do a better job at involving all federal departments in the EA process when they have responsibilities for a project in order to better address impacts to rights early on in the regulatory process.

The Panel also heard participants’ concerns around the implementation of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). Participants were concerned that despite committing to implementing UNDRIP, the Government of Canada has failed to obtain free, prior and informed consent for recent project approvals. The Panel heard that there are many questions yet to be answered about some of the principals in UNDRIP, such as ‘free, prior and informed consent’ (FPIC), and how that consent would be obtained.

Lastly, the Panel heard that there are “multiple ways of knowing” and that science does not need to conflict with the use of traditional knowledge in the EA process.

Indigenous sessions – December 15th, 2016

The Panel heard that current EA processes do not adequately address issues of rights and title, and do not provide an adequate foundation for the articles of UNDRIP to be realized. Participants thought that Indigenous Peoples need to be involved earlier in the EA process, ideally during the design phase, in order to lay the proper groundwork for FPIC. Additionally, participants pointed out that the courts have not ruled out consent and referenced the Delgamuukw (1997) and Tsilqhot’in (2014) decisions. Participants were also of the opinion that the Crown needs to engage with Indigenous Peoples on what consent means to them and come to a mutual understanding together. The Panel was told that Indigenous Peoples need a clear place in the decision-making process, so that they are not seen as just another stakeholder.

With respect to FPIC, participants provided their views on how it should be interpreted. ‘Free’ in FPIC does not mean free advice or free work; it means free from coercion, which includes timelines. Timelines can pose serious barriers to FPIC as Indigenous groups need access to all available information, which can take time to gather and adequately consider. Participants stated that ‘informed’ means that they want to hear all information, whether good or bad. Further, all information needs to be published or otherwise made available to their communities. Finally, participants clearly stated that consent does not equal money and that Indigenous groups need to be more active in reinforcing each other’s right to provide consent.

The Panel heard that the duty to consult and accommodate clearly rests with the government and not the proponent. Participants thought that if EA processes are to continue to be used as the primary mechanism for fulfilling the Crown’s duty to consult, then that should be made explicit in the purposes and mandate. Participants supported the notion of broadening the consideration of Indigenous rights within EA processes, including with respect to scope, substance and process. In addition, participants thought that new methods of figuring out the bigger issues related to rights need to be developed, outside of EA processes.

With respect to issues of overlapping Indigenous claims to rights and title, participants thought that the best way to resolve disagreements is to follow a two-step model. First, start by recognizing and supporting Indigenous protocols for issue resolution, and second, develop a nation-to-nation process for resolution (between the federal government and Indigenous groups).

Participants thought that assessments of impacts to Indigenous rights should consider preferred places, preferred resources, and preferred modes of practice as criteria. Participants also thought that impacts to rights should be assessed at the level of the most sensitive receptor, which would be at the individual or household level. Participants were of the view that the recent draft Technical Guidance for Assessing Current Use of Lands and Resources for Traditional Purposes is a step in the right direction but needs to be expanded upon. The Panel also heard different views on whether Impact and Benefit Agreements (IBAs) have a place in EA processes; some participants thought that IBAs should be separate from consultation and accommodation, while others saw a role for them within EA processes. Participants also thought that additional clarity is needed with respect to who in government has the mandate and authority to negotiate accommodation measures.

The Panel heard that Indigenous Traditional Knowledge (ITK) should form the basis for EA. ITK is more than what is described in the Canadian Environmental Assessment Act, 2012 (CEAA 2012) currently. In other words, it is more than living in close contact with nature, and it is deeper than the understanding that a hiker or tourist may have of the landscape. Participants were concerned that current EA processes are not capable of processing ITK and wisdom, and that there is too much emphasis on the “traditional” aspect of ITK. ITK is a body of knowledge that is alive, current and relevant to the present day. Participants also thought that more weight needs to be given to ITK and other forms of Indigenous wisdom, and that one possibility for doing this is to change the definition of science in CEAA 2012 to explicitly include ITK. This would help ensure that the appropriate standards are clear, and respect for ITK would be built into the process.

Planning of Environmental Assessment

Public sessions – December 14th, 2016

The Panel heard that the current EA process does not capture an adequate number of projects and that a lack of federal oversight exists as a result. Participants suggested that a number of activities such as aquaculture, gravel extraction from the Fraser River, and projects within an EBSA should require EAs. Participants stressed that EA should apply for smaller thresholds than are currently set in regulations. Participants also suggested that EAs should be triggered regionally.

The Panel heard that regional EA is necessary in order to properly manage cumulative effects. Participants suggested that one major roadblock in achieving public trust is the lack of regional vision for a number of areas that are significantly affected by a high level of development. The Panel heard that Denman Island would be a good place to do a regional assessment. The Panel also heard that regional EA must be carried out with the appropriate spatial boundaries, such as an affected watershed.

Participants raised concerns about a lack of adequate socio-economic assessment in the current EA process. The Panel heard that often socio-economic effects of a project are not linked to a permitting issue and therefore may not currently be captured under the scope of environmental effects. Participants suggested they would like to see socio-economic effects considered more broadly and play a bigger role in a new EA process.

The Panel heard that there are issues with some of the factors considered in the current EA. For example, it was suggested that the way in which alternatives are currently addressed in EA needs to be changed. The Panel heard that if a viable alternative is found, it sometimes requires proponents to restart the process and those proponents should not be punished for using the alternative.

Indigenous sessions – December 15th, 2016

The Panel heard that EA processes need to incorporate Indigenous values and worldviews from the very beginning of the planning process, as they could lead to different valued components and project designs. With respect to scoping, participants thought that there is currently an issue with power dynamics and that Indigenous groups should play a more prominent role in making scoping decisions and developing guidelines for the proponent.

Participants expressed concerns with how cumulative effects assessments are currently undertaken in EA processes, including how and when baselines are set. The Panel heard that cumulative effects assessments need to be made mandatory for every project EA. Participants thought that regional EAs are required in order to prevent much of the harm resulting from cumulative effects that are not properly captured and assessed within past and existing project EAs. Regional EAs, in conjunction with regional land use plans, could set out specific areas that are culturally sensitive without going into too many inappropriate details, and thus afford them some level of protection.

Conduct of Environmental Assessment

Public sessions – December 14th, 2016

The Panel heard that there are conflicts of interest in the current structure of responsibilities to conduct EAs. Participants raised strong concerns with the proponent-consultant relationship and suggested that proponents should not be responsible for carrying out studies of their own projects. It was suggested that an independent federal agency could be in charge of hiring consultants to carry out the studies.

Participants suggested that expertise in the federal government may be lacking. For example, the Panel heard that federal employees tasked with reviewing EA documentation are often not scientists but are engineers or bureaucrats without the relevant expertise to be reviewing scientific documentation. Contrarily, the Panel heard that the National Energy Board (NEB) and Canadian Nuclear Safety Commission (CNSC) have specific expertise with respect to the types of projects they regulate.

The Panel also heard comments about timelines in the EA process. Participants suggested that timelines are a hindrance to the public’s ability to fully and actively participate in the EA process. The Panel also heard that certainty is important in the process, but sometimes certainty arises from knowing from the onset that certain types of projects or areas are “no-go”.

Indigenous sessions – December 15th, 2016

The Panel heard concerns about the lack of independence of Responsible Authorities from the government; participants were supportive of a more arms-length system as they believed it would increase accountability and trust in the process. Participants were also of the view that many Indigenous groups currently want to conduct their own EA process, partly in response to the lack of trust they currently have in EA processes. Problems with current EA processes are related to issues of science, decision-making, and roles. Participants were dissatisfied with the role of the proponent vis-à-vis the government, and were supportive of the government taking more of a lead role with respect to conducting studies and proactively consulting with Indigenous groups on a nation-to-nation level.

Participants also expressed their views that timelines are inadequate for Indigenous groups to properly develop input into EA processes, and for government to meaningfully consider and respond to that input.

The Panel heard that the role of Indigenous Peoples needs to be redefined within EA processes. A more collaborative model needs to be developed, with Indigenous involvement as technical support on the development of the Environmental Impact Statement (EIS) Guidelines, and Indigenous involvement as a regulatory authority/decision-maker once the EIS has been submitted.

Decision and Follow-up

Public sessions – December 14th, 2016

The Panel heard concerns from participants and the transparency in the current decision-making process in EA. Participants suggested that while it should be elected officials that make the ultimate decision about the fate of a project, there should be explicit decision-making criteria that must be followed and that the considerations in coming to that decision should be transparent and public.

The Panel also heard about the information used to draw conclusions and make decisions in the current EA process. Participants voiced concerns about the lack of transparency around the raw data used in EAs and suggested that in order for the public to trust the process, this information should be publicly available and not be proprietary so that results can be reproduced and to aid in the gathering of a wide range of environmental data.

The Panel heard that there is a lack of teeth when it comes to enforcing conditions in approvals due to the lack of resources to enforce and low fines for non-compliance. Participants suggested that more resources should be allocated to enforcement. Participants also suggested that Indigenous people should play a role in monitoring, follow-up and enforcement.

Indigenous sessions – December 15th, 2016

Participants were of the view that Cabinet is not educated enough on the technical aspects of EA to make decisions, and that politics has taken over the integrity of the decision-making process. Participants recalled that the Minister of Environment and Climate Change used to be the one making EA decisions, but now it appears that most decisions are referred to Cabinet.

The Panel heard that Indigenous Peoples need to be more involved in the development and implementation of follow-up and monitoring programs. Participants expressed the view that the EA process does not stop with a permit, and that as a result communities need to be involved in communication and feedback mechanisms in order for them to retain confidence in their lands, waters, and associated resources.

The Panel also heard that the role of Indigenous Peoples as decision-makers, on par with government, needs to be recognized within EA processes. Participants thought that collaborative approaches to decision-making should become the hallmark of EA processes, and suggested that the Panel consider hearing processes in the North as a possible model.

Public Involvement

Public sessions – December 14th, 2016

The Panel heard that the biggest obstacle for meaningful participation by both Indigenous groups and the public is a lack of adequate funding and capacity. Participants told the Panel that 30 days to comment on a huge amount of information is insufficient. Participants suggested that more methods of participation would be beneficial, such as online formats, workshops, or open dialogue sessions, in order to increase participation in EA.

The Panel was told by participants that the EA process does a poor job at making information understandable to the public. Participants suggested that information provided to the public should be concise, simple and draw easy to understand conclusions. The Panel also heard concerns about the public availability of information in an EA; specifically that some information is not posted online and is only available through an access to information request.

Indigenous sessions – December 15th, 2016

The Panel heard that Indigenous Peoples need upfront capacity to be involved in EA processes, and that in many cases communities have not been able to participate in the review of EAs due to lack of capacity. With respect to funding, more funding is required and on a more consistent basis.

Participants also expressed the difficulties inherent for community members, including elders, to go before a review panel hearing and provide a submission. These difficulties can be a hindrance to participation, and can be exacerbated when the review panel composition does not include an Indigenous person.

Coordination

Public sessions – December 14th, 2016

Participants were of the view that the substitution process in British Columbia was designed in order to address issues of federal interest so that a federal decision could be made. The Panel heard that there is often a misunderstanding when a process is substituted that the federal government no longer plays a role in decision-making for the project. The Panel heard that an ideal process would be one process where all jurisdictions cooperated to achieve one assessment for a project.

Indigenous sessions – December 15th, 2016

The Panel heard that collaborative EA processes that recognize Indigenous inherent jurisdiction need to be developed. Indigenous Peoples and government need to sit down and agree to a process in advance of a project EA. Participants thought that if such a collaborative process could be established, then a set of comprehensive guidelines to the proponent could be developed that would meet the needs of all parties. Participants were also of the view that in the case of overlapping claims, Indigenous methods of conflict resolution need to be recognized and given priority as a first step.

Annex I

Public sessions – December 14th, 2016

List of Presenters

  • Barbara Mills + Dorrance Woodward, Association of Denman Island Marine Stewards
  • Peter Douglas Elias
  • Harry Swain
  • Brian Miller
  • Eric Swanson
  • John Werring, David Suzuki Foundation
  • Jonathan Moore
  • Torrance Coste, Wilderness Committee
  • Aerin Jacob
  • Patrick McLaren
  • Paul Craven, British Columbia Environmental Assessment Office

Workshop Participants

  • There were 11 participants.

Indigenous sessions – December 15th, 2016

List of Presenters

  • Sonya Morgan, Cowichan Tribes
  • Carrielyn Victor and Matt McGinity, S’ólh Téméxw Stewardship Alliance
  • Todd Russell, NunatuKavut
  • Dr. Judith Sayers
  • Craig Candler, Firelight Group Research on behalf of Ktunaxa Nation Council
  • Claire Truesdale, JFK Law on behalf of Te’mexw Treaty Association
  • Aerin Jacob

Open Dialogue Participants

  • There were no participants.

Submissions Received in Nanaimo

Title

Author

Date Posted

View Full Submission

Transcript - Public Presentations, Nanaimo Dec 14 2016

Nanaimo Transcript

January 09, 2017

Transcript - Indigenous Presentations, Nanaimo Dec 15 2016

Nanaimo Transcript

January 09, 2017

Follow-up from Nanaimo Presentation “Should we implement United Nations Declaration on the Rights of Indigenous Peoples?”

Harry Swain

January 05, 2017

Bibliography for presentation in Nanaimo, Dec 14 2016

Barbara Mills

January 05, 2017

Written submission "Problematic Issues with Canadian Environmental Assessment and First Nations" for Nanaimo, Dec 15 2016

Kekinusuqs, Judith Sayers

December 21, 2016

Presentation "Overarching Indigenous Considerations in EIAs - An Environmental Planner's Perspective" for Nanaimo, Dec 14 2016

Brian Miller

December 20, 2016

Presentation "Environmental Assessment Review" for Nanaimo, Dec 15 2016

Carrielynn Victor and Matt McGinity

December 20, 2016

Presentation to the Expert Panel on CEAA, 2012 for Nanaimo, Dec 15 2016

Te’mexw Treaty Association

December 20, 2016

Presentation "Improving environmental assessment in Canada: Suggestions from the Liber Ero Fellows" for Nanaimo, Dec 15 2016

Aerin Jacob

December 20, 2016

Presentation and Summary Table "KNC Perspectives on EA Issues & Themes for Federal Review" for Nanaimo, Dec 15 2016

Craig Candler with Ktunaxa Nation Council

December 20, 2016

Presentation "Federal EA Review" for Nanaimo, Dec 15 2016

Todd Russell with NunatuKavut Community Council

December 20, 2016

Presentation "Environmental Assessment Process - A (very) brief history of the Environmental Science used by Petronas" for Nanaimo, Dec 14 2016

Patrick McLaren with SedTrend Analysis Ltd.

December 20, 2016

Presentation "Scientific rigour and transparency - Recommendations from the next generation of Canadian scientists" for Nanaimo, Dec 14 2016

Aerin Jacob with the University of Victoria

December 20, 2016

Written submission to the Expert Panel reviewing Canadian Environmental Assessment for Nanaimo, Dec 14 2016

Torrance Coste

December 20, 2016

Presentation for Nanaimo, Dec 14 2016

Jonathan W. Moore

December 20, 2016

Written submission for Nanaimo, Dec 14 2016

Jonathan W. Moore

December 20, 2016

Written submission and speaker notes "How the Canadian Environmental Assessment Act 2012 is failing Canadians" for Nanaimo, Dec 14 2016

John Werring with the David Suzuki Foundation

December 20, 2016

Written submission "Environmental Assessment for the 21st century" for Nanaimo, Dec 14 2016

Harry Swain

December 20, 2016

Written submission "Presentation to the Expert Panel on the Review of the Environmental Assessment Processes" for Nanaimo, Dec 14 2016

Peter Douglas Elias

December 20, 2016

Presentation "Environmental Assessment Review Process" for Nanaimo, Dec 14 2016

Barbara Mills with the Association for Denman Island Marine Steward

December 20, 2016

In: | Comments are closed | What We’ve Heard – Nanaimo, BC

Comments are closed.

Date modified: