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The Expert Panel for the review of environmental assessment (EA) processes met in Ottawa November 1st and 8th, 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 1st and 8th, 2016

The Panel heard from participants about how the EA process fits into the broader regulatory scheme, including other federal and provincial environmental legislation, and that the federal process should be a model of consistency that provides clarity to all parties involved. One of the concerns raised is that broad policy-based questions, such as climate change, the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), or energy strategies, are being brought into project-based EA. It was suggested that these types of political decisions should be made outside of project-based EA, or should be dealt with through strategic EA and that project-based EA should focus on impacts and mitigation. Contrarily, some participants suggested that while EA must be considered within the limits of federal jurisdiction, the federal government does have some regulatory authority over things like climate change given the magnitude of its potential effects, and that these issues should be considered in EA somehow.

Participants suggested a need for EA to achieve sustainable outcomes for present and future generations. Examples were brought up of completed EAs, such as Voisey’s Bay or Lower Churchill, where sustainability criteria and considerations had already been used. The Panel was encouraged by some participants to enshrine sustainability into new legislation with measurable standards and requirements.

Participants suggested that the goal of a future process should be an inclusive and transparent approach, and that this should be reflected in all aspects of the EA process. They felt as though this cannot be achieved through tweaks to CEAA 2012 or returning to the previous legislation, but must be accomplished through a new process altogether.

Overarching Indigenous Considerations

Public sessions - November 1st and 8th, 2016

The Panel heard that EA processes should respect the laws of Indigenous people and the treaties that exist between the federal government and Indigenous people. This includes respecting the right to free, prior, and informed consent when projects are proposed that may affect the constitutional rights of Indigenous people. It was suggested that the government must be prepared for Indigenous people to say “no” to a project and must respect that decision.

Participants suggested that there is currently an issue with capacity for Indigenous people to participate in the EA process. Participants recommended that the government should increase funding and work harder to build capacity for Indigenous people to meaningfully participate in EA. Some participants were of the view that making the process more inclusive of Indigenous communities by promoting partnership in decision-making could be a way to improve things.

The Panel heard concerns around the determination of Indigenous rights and title. It was suggested that this determination should be made outside of the EA process as it is bigger than a decision on one particular project. Additionally, some participants had concerns around the government’s Crown consultation approach and Indigenous consultation carried out for project EAs. They suggested that the approach should be reviewed and should reflect recent recommendations in the Canadian Truth and Reconciliation Commission and the recent endorsement of UNDRIP.

Lastly, the Panel heard about the lack of gender-based analysis in EA. Site C was provided as an example, where the participant was of the view that the review panel for that project failed to consider how impacts on housing, security, and jobs in the area may be an issue to women, and cited a study that found increased homelessness and violence towards women, in particular indigenous women.

Indigenous sessions – November 1st, 2016

The Panel heard about Chapter 23 of the James Bay and Northern Quebec Agreement (JBNQA) and Article 7 of the Nunavik Inuit Land Claim Agreement (NILCA) which establish structures and include provisions for EAs. The Panel heard about the Nunavik Marine Region Impact Review Board (NMRIRB) which is responsible for project screening and may be charged with conducting reviews.

The Panel heard that the Canadian Environmental Assessment regime (both the Act and the Agency) are based on rules of application, purposes, and institutions that are different from those in JBNQA and NILCA. The Panel heard that these rules must be amended to clearly recognize the paramount role of NILCA and JBNQA and not diminish the role of Inuit peoples and their rights which are guaranteed under their land claims agreements.

The Panel heard that it is unacceptable to have panel members with little or no knowledge of Nunavik or of Inuit culture and society. The Panel also heard about land claims structures which were provided as a model for co-management or collaborative management as they guarantee that a portion of review panel members are appointed regionally. This is particularly relevant for understanding the value and richness of Indigenous Traditional Knowledge (ITK).

The Panel heard that ITK must be considered equivalent to science and should not be ignored because scientists have opposing views. The Panel heard that often ITK is considered as merely a recommendation and when decisions are made it is not clear to what extent ITK was considered or incorporated in decision making. The Panel also heard about the need for ITK to be protected as intellectual property. They also heard examples of Indigenous people’s hesitancy to share their traditional knowledge in EA process because of past experiences with cultural appropriation.

Planning of Environmental Assessment

Public sessions - November 1st and 8th, 2016

The Panel heard a number of issues related to the planning of an EA. In particular, participants raised the issue of a lack of strategic and regional EA. There was a general consensus amongst participants that both strategic and regional EA need to be more of a focus for future EA processes. With respect to strategic EA, it was suggested that instead of the current cabinet directive, it should be a legislated process and should help deal with big picture policy questions such as UNDRIP and energy policies. With respect to regional EA, it was suggested that it is the best tool to properly assess cumulative effects and climate change. The Panel heard that the biggest barrier to the federal government carrying out regional EA is that it is the provinces’ jurisdiction to carry out regional planning. Others suggested that perhaps with proper funding and cooperation with provinces, they would be much less reluctant to have the federal government doing regional EA.

The question around when a federal EA should be required was discussed. Some participants believed the Regulations Designating Physical Activities (Project List) provides certainty and predictability in the process while others were of the view that this approach) is arbitrary and should be revisited. Some participants were of the opinion that the current Project List approach requires some industry sectors to do more EAs than others. It was also suggested that the Panel should recommend a return to the previous “trigger” approach.

With regards to the effects considered in an EA, the Panel heard that the current process is too specific about what constitutes an environmental effect. The Panel heard how this approach is irresponsible and that the environment should be looked at holistically rather than piece by piece. It was suggested that the definition of “environmental effect” from the previous legislation should be reincorporated.

In terms of the scope and factors considered in an EA, a number of participants mentioned that the process should place more emphasis on project alternatives and focus on potential accidents and malfunctions that might have significant repercussions for the environment. Additionally, participants were concerned about assessing cumulative effects within the scope of a project EA. It was suggested that the scope of an EA currently is too restricted and needs to be broadened.

Indigenous sessions – November 1st, 2016

The Panel heard about land use planning as a tool to teach future generations and to help mitigate as much as possible impacts to biodiversity and the environment.

Conduct of Environmental Assessment

Public sessions - November 1st and 8th, 2016

The Panel heard that the reduced number of responsible authorities under CEAA 2012 has helped to significantly improve process consistency. There was support for the Canadian Nuclear Safety Commission remaining as a responsible authority to conduct EAs of nuclear projects. Contrarily, some participants voiced concerns about the Canadian Nuclear Safety Commission and National Energy Board conducting EAs for projects which they also regulate. It was suggested that there should be a single independent regulator responsible for conducting the EA process, and that this would be the best way to increase consistency.

Participants discussed the addition of timelines introduced through CEAA 2012. Most participants agreed that timelines were a welcome addition, as they have increased timeliness and certainty in the EA process. However, it was suggested that while the length of the EA process might have been reduced, the length of the overall regulatory approval process has not actually been reduced. The Panel also heard concerns regarding the process of responsible authorities making information requests to proponents. Participants believed that this was being abused as a way to extend the regulatory timelines.

Decision and Follow-up

Public sessions - November 1st and 8th, 2016

The Panel heard many different perspectives about the decision-making process and potential changes that participants would like to see. There were a number of concerns about who makes EA decisions and how those decisions are made. Specifically, some participants felt that there should be more clarity around how a decision of “justifiable in the circumstances” is made when significant adverse effects are predicted. It was suggested that there should be decision-making criteria built into the process from the outset so that it is clear how decision-makers should weigh the evidence provided through the EA process. Others suggested that decision-makers should be independent and that this could be accomplished through the establishment of an independent, quasi-judicial review board.

Some participants were concerned that current conditions established through decision statements are too restrictive and do not allow for adjustments and adaptive management once project effects are better understood. The Panel heard that outcomes should be the focus of conditions and not specific technologies designed to mitigate effects. It was also suggested that a new process should allow for conditions to be amended if necessary.

Public Involvement

Public sessions - November 1st and 8th, 2016

Some participants supported the test of “directly affected” parties to determine who should participate in the EA process. However, others suggested that the process should be as inclusive as possible and that the process must be grounded in meaningful engagement. It was suggested that this should happen through early engagement and representation of affected groups in relevant working groups and in all steps of the process.

There were participants that were of the view that funding capacity for involvement in the EA process is much too low. They argued that this leads to a process where proponents have an unfair advantage since they have a lot more time and money than other participants in the EA process. They believed that money should not be an impediment to meaningful participation in the EA process.

A number of participants voiced concerns about the information availability in the EA process. Generally, participants indicated that one of the most important aspects of the process is transparency and access to relevant information in order to freely participate. Specifically, concerns were raised regarding access to information on the public registry, such as being able to find information easily. Other points included that not all information is posted to the registry such as information regarding monitoring and follow-up.

Indigenous sessions – November 1, 2016

The Panel heard that duplication of consultation efforts in particular in small communities with little capacity leads to consultation fatigue and disinterest. The Panel also heard that communities are ill-informed about the EA process in general and that more outreach and education is needed. In addition, the Panel heard that public consultation mechanisms that are effective in the South of 60 may be inappropriate or ineffective in the North where communities often lack the technical experts to adequately assess socio-economic and environmental impacts and where communication is limited. The Panel heard that more in-person engagement by proponent and governments is required, in particular, communication of the outcomes of consultations.

The Panel heard about efforts to reach out to Indigenous youth through the use of school boards and post-secondary institutions that teach about projects and Indigenous rights.

Coordination

Public sessions - November 1st and 8th, 2016

The Panel heard from a number of participants that coordination with other jurisdictions is extremely important in order to achieve a timely and predictable EA process. There was general consensus that a one project, one assessment model is the preferred approach. There were concerns that CEAA 2012 has led to deterioration in coordinating federal-provincial processes and that coordination is also weak amongst other federal authorities that are involved in permitting after completion of an EA. It was suggested that the federal government should look to improve coordination with provinces in order to provide one window into the EA process.

The Panel also heard support for the substitution and equivalency provisions introduced through CEAA 2012. It was pointed out that this was a step in the right direction in order to have a one project, one review approach to EA.

Indigenous sessions – November 1, 2016

The Panel heard that the impact assessment process should be simple and duplication of processes should be avoided through harmonization.

Annex I

Public sessions - November 1st and 8th, 2016

List of Presenters

November 1st, 2016

  • Stephen Hazell, Director of Conservation and General Counsel, Nature Canada
  • Robert Dick, Royal Astronomical Society of Canada
  • Steve Coupland and Frank Saunders, Canadian Nuclear Association
  • Gilles Côté
  • Scott Findlay, Associate Professor and Director, Graduate Studies - Institute of the Environment, University of Ottawa
  • Brigid Rowan, The Goodman Group, Ltd.
  • Caroline Ducros, Canadian Nuclear Safety Commission
  • George Sorger

November 8st, 2016

  • Michael Gullo, Director, Policy, Economic and Environmental Affairs, Railway Association of Canada
  • Jamie Kneen, Communications and Outreach Coordinator, MiningWatch Canada
  • Pierre Gratton, President and CEO, Mining Association of Canada
  • Richard Lindgren, Counsel, Canadian Environmental Law Association
  • Katrina Marsh, ‎Director, Natural Resources and Environmental Policy, Canadian Chamber of Commerce
  • Josh Ginsberg, Ecojustice
  • Channa Perera, Director, Sustainable Development, Canadian Electricity Association
  • Jacob Irving, President, Canadian Hydropower Association
  • Jacqueline Hansen, Amnesty International
  • Chantal Clement, Goldcorp
  • Ole Hendrickson, Concerned Citizens of Renfrew County

Workshop Participants

  • There were 21 participants.

Indigenous sessions – November 1, 2016

List of Presenters

  • Adamie Delisle Alaku, Executive Vice President Resource Development Department Makivik Corporation
  • Stuart Myiow Junior, Conseil Traditionnnel Mohawk de Khanawake

Open Dialogue Participants

  • There were 8 participants.

Submissions Received in Ottawa

Title

Author

Date Posted

View Full Submission

Presentation “Going Back to the Future: How to Reset Federal Environmental Assessment Law” for Ottawa, Nov. 8th, 2016

Canadian Environmental Law Association

January 05, 2017

Follow-up to Expert Panel questions in Ottawa, Nov. 1st 2016

Gilles Côté

January 04, 2017

Presentation “Environmental Assessment Review Outdoor Lighting” for Ottawa, Nov. 1st 2016

Robert Dick, RASC/CSbG

January 04, 2017

Presentation "Environmental Assessment Review: Outdoor Lighting" for Ottawa November 1st, 2016

Robert Dick of the Royal Astronomical Society of Canada and the Canadian Scotobiology Group Inc.

December 06, 2016

Presentation "Environmental Assessment Review" for Ottawa November 1st, 2016

Ontario Rivers Alliance

December 06, 2016

Presentation "Accounting for Full GHG Impacts and Importance of Meaningful Expert Participation" for Ottawa November 1st, 2016

Brigid Rowan of The Goodman Group, Ltd.

December 06, 2016

Submission "SOME COMMENTS ON THE FEDERAL ENVIRONMENTAL ASSESSMENT PROCESS" for Ottawa November 1st, 2016

C. Scott Findlay

December 06, 2016

Presentation "Review of the Federal Environmental Assessment Process: Presentation to the Expert Panel" for Ottawa November 1st, 2016

Makivik Corporation

December 06, 2016

Presentation "Review of Environmental Assessment Processes" for Ottawa November 8, 2016

Canadian Hydropower Association

December 06, 2016

Submission “Presentation to the Expert Panel Reviewing Environmental Assessment Processes - MiningWatch Canada" for Ottawa November 8, 2016

Mining Watch Canada

December 06, 2016

Presentation "Environmental Assessment in the rail industry" for Ottawa November 8, 2016

Railway Association of Canada

December 06, 2016

Presentation "EA of Mining Projects" for Ottawa November 8, 2016

Joan Kuyek

December 06, 2016

Presentation "Canadian Environmental Assessment Act Review: An Electricity Sector Perspective" for Ottawa November 8, 2016

Canadian Electricity Association

December 06, 2016

Presentation "Strengthening federal environmental assessments: a case study of nuclear projects at the Chalk River Laboratories" for Ottawa November 8, 2016

Ole Hendrickson

December 06, 2016

Presentation "Presentation for the CEAA Panel" for Ottawa November 8, 2016

Gold Corp

December 06, 2016

Submission "GOING BACK TO THE FUTURE: HOW TO RESET FEDERAL ENVIRONMENTAL ASSESSMENT LAW" for Ottawa November 8, 2016

Canadian Environmental Law Association

December 06, 2016

Submission "MAC Submission to the Expert Panel Review of Environmental Assessment Processes” for Ottawa November 8, 2016

Mining Association Canada

December 06, 2016

Submission “Ecojustice Submission to the Expert Panel on the Review of Environmental Assessment Processes Clarity and Dealing with Uncertainty” for Ottawa November 8, 2016

Ecojustice

December 06, 2016

Submission “DÉCISION DU DÉCIDEUR” for Ottawa November 1st, 2016

Gilles Côté, Ph.D

December 06, 2016

Submission “Next Generation Impact Assessment: Toward Sustainability” for Ottawa November 1st, 2016

Nature Canada

December 06, 2016

Presentation “Review of Canadian Environmental Assessment Act Process” for Ottawa November 1st

Canadian Nuclear Association

December 06, 2016

Submission “ENVIRONMENTAL ASSESSMENT, SOME THOUGHTS ON THE PROCESS” for Ottawa November 1st

George Sorger

December 06, 2016

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