What We’ve Heard – Federal Departments and Agencies Ottawa, Ontario
The Expert Panel for the review of environmental assessment (EA) processes met in Ottawa on November 8, 2016, for an in-person session with federal bodies.
Federal expert departments and agencies as well as representatives from all three responsible authorities (the Canadian Environmental Assessment Agency, the National Energy Board and the Canadian Nuclear Safety Commission) met with the Expert Panel to discuss key matters related to EA, including the integration of science in federal EA, capacity considerations for expert departments, transitioning from an EA to the regulatory phase, and best practices and lessons learned.
The following summary presents the comments and input received throughout the technical session. It is intended to present the views of participants, and not the views of the Panel itself.
The Panel wishes to thank all those who participated for sharing their expertise and experience at this session.
ENVIRONMENTAL ASSESSMENT IN CONTEXT
The departments had a variety of ideas of what federal EA should achieve in the future. It was stated that the goal of EA is to provide information so the decision maker can understand the environmental impacts along with other factors. Some noted that it should be a planning process that at a minimum ensures no adverse environmental effects. It was pointed out that if we do an EA well, the project will change because EA is a planning tool. The Panel heard that EA cannot provide absolute certainty so there is a need to address expectations and communicate to stakeholders that some things will be addressed at the regulatory stage. Others pointed out that EA has moved from a planning tool to a regulatory process and it was suggested that it could move further in this direction.
Various ideas around what should be achieved in EA included transparency, predictability, credibility, sustainability, evidence based and informed decision-making, adaptive phased management, public trust and confidence, best available technology, accessible and understandable information, the ability to address threats facing Canada’s environment such as climate change, and the ability to determine the level of risk with which people are willing to accept.
There was discussion around the term of significance. Some raised that significance is a loaded term and refers to the Cabinet decision. It was noted that there is a lack of policy to determine significance and that perhaps expert advice should avoid the term significance. It was suggested that the significance test should be for the regulatory decision and a broader test such as sustainability should be used in EA. The Panel also heard that determining significance provides a minimum bar for assessing a project which is complementary to sustainability assessment.
It was stated that EA needs to require the best technology that is economically achievable and that proponents are in the best position to know the best technology. Options should be looked at in a detailed and predictive way. The alternative analysis used with respect to the Metal Mining Effluent Regulations was provided as an example.
A three tiered approach was recommended – federal/ provincial project EA, strategic and regional EA. Land use planning and regional scale EA can establish objectives and thresholds for cumulative effects and then these can be applied for project EA. It was mentioned that project EA should focus efforts and not go back to the “7000” EAs that were required prior to the Canadian Environmental Assessment Act, 2012 (CEAA 2012). Information needs to be shared up front and from a landscape perspective. How a project fits in the broader landscape and how it will change mandate objectives was raised and it was noted that there is always a trade-off depending on the value of the ecosystem component.
Federal departments also noted that any new regime should factor in the different types of industry sectors as some are more experienced and sophisticated than others. They also noted that should there be any federal roles changed or expanded, there would need to be a consideration of existing resources.
OVERARCHING INDIGENOUS CONSIDERATIONS
A key point raised with regard to Indigenous communities was the need to build capacity early into the EA process before an Environmental Impact Statement is provided. Suggestions were to host workshops, provide training sessions on specific topics and provide funding. It was noted that the current participant funding program is not a sustainable source of funding to build capacity. There is not only a need for early funding to help with traditional land use studies but also for long-term funding beyond the EA phase.
It was heard that relationships with Indigenous communities need to be long-term and that the government needs to work with Indigenous communities on how they want to be consulted. It was noted that there is demand for a type of engagement where the groups can focus on their concerns and community expertise instead of on technical details. Providing plain language submissions could also be helpful. It was stated that engagement with proponents and government should be early and that multiple levels of engagement need to occur with band councils, administration, communities and elders. The Panel also heard that there are many issues in Indigenous communities so it may be difficult to get attention on project specific EA. A suggestion was that there should be a body within government to provide a one-window approach and that a central office should be set up in each community to provide capacity internally for communities to engage more effectively. It was also suggested that there is a need to provide experts to Indigenous communities to help them make decisions at the community level. For this to work, expertise across departments would need to be made accessible.
The Panel heard that guidance on how to integrate traditional knowledge into the EA is needed, as well as a framework for accommodation. It was noted that Northern regimes have guidance on integration of traditional knowledge into EA. Community hearings were recommended as a way to hear from groups who want to share their traditional knowledge.
Impact Benefit Agreements were referenced with regard to how the content is not disclosed so it is impossible to know if communities are happy with the proponent.
PLANNING OF ENVIRONMENTAL ASSESSMENT
Federal departments stated that they want regional studies or regional EAs to inform project EA as it would get the conversations started earlier and set the context and background. They indicated that there is a lack of regional planning making cumulative effects difficult to assess. They pointed out that good regional studies can resolve some bigger scale issues and would help meet project EA timelines, inform EA objectives, and determine thresholds, ecological requirements and valued ecosystem components. It was stated that regional EAs should be focused and not look at all valued ecosystem components. The Panel also heard that the provincial government must be involved in regional planning and studies.
The quality of project proposals was mentioned as an issue. It was stated that projects start the EA process without being fully developed, making it difficult to understand the full scope of the expertise needed. Examples provided of best practices include British Columbia and Alberta which have a pre-application phase where certain basic standards are required before the process is initiated. Other examples included the Canadian Nuclear Safety Commission and National Energy Board where pre-application meetings are held at several steps along the way where projects are considered and filtered.
It was suggested that the scope of the EA should be well defined. However, some pointed out there needs to be increased flexibility and breadth to be able to consider impacts that are currently outside the scope of the EA because they are outside the control of the proponent, such as marine shipping.
With regard to CEAA 2012, federal departments generally agreed that the process under section 67 requiring them to consider environmental effects of projects carried out on federal lands is effective and efficient and they would like to see it kept. They indicated that they can integrate their own process and have the flexibility to decide on the scope. Departments suggested that the project list regulations should be re-thought and that it is not clear when and why some projects not on the list get designated by the Minister. The Panel heard that there is no requirement in CEAA 2012 to consider plans and policies and that this should be part of EA and would be helpful for enforcement. Participants indicated that the section 5 definition of environmental effects is too restrictive and hard for the public and Indigenous communities to understand and so it should be expanded. The Panel also heard that there are challenges regarding the application of CEAA 2012 on federal lands, for example species at risk protection on federal reserve land and how this may affect Aboriginal rights.
Inclusion of socio-economic effects was discussed. The Panel heard that the federal government needs information regarding economic benefits but that the federal government should not decide for the province based on this but rather focus on environmental effects. Some pointed out that we need to increase the assessment of health impacts and that both health and social effects need to be defined. Having a health regulator was mentioned. Some indicated that the federal EA should look at socio-economic effects, as defined in section 5 of CEAA 2012, in terms of sustainability.
CONDUCT OF ENVIRONMENTAL ASSESSMENT
The Panel heard that different departments participate in EA differently. Some do not have any role in EA, some are the federal experts for specific things and others have an expertise role as well as a regulatory role. In relation to capacity considerations for expert departments, some departments rely on others for expertise but that support has been reduced and as such the departments relying on this advice have stopped asking.
Departments use EA coordinators, general EA experts and science experts. Science experts provide advice related to departmental mandate and EA coordinators roll up the advice provided. Advice tends to be provided in terms of duration, magnitude, etc. of the effects versus determination of significance. The determination of significance is left to the responsible authorities.
Departments review the information from the proponents but rely on other sources as well such as internal research, non-government organizations, Indigenous groups, external experts, etc. Some federal experts determine if the proponent’s models, predictions, etc. are appropriate and then use this information to determine the adverse environmental effects, while others might rely on certain federal experts to ensure the models etc. are appropriate first and then just look at the predicted adverse effects. Departmental policies and standards can be the foundation on which departmental expert advice is framed and built, however when issues fall outside the policy framework, they can be challenging to address.
It was recognized that federal experts can be limited to just a few individuals for the whole country and they are often not dedicated to EA and thus may not have experience and understanding of how to provide advice into the EA process. It was also noted that there may be gaps in the expertise. For example when a federal department is looking at things within its specific mandate, it may not recognize the gaps in the expertise for the purpose of EA. The Panel also heard that government scientists are often put in difficult positions in relation to reconciling science information or testifying before tribunals on effects assessment.
It was also noted that if we broaden what effects we look at in EA, we will need to obtain that expertise. Others indicated that federal expertise is available but not used efficiently. One suggestion is that gaps in expertise could be filled by provincial experts. It was also suggested that there is a need to bring together federal, provincial and Indigenous traditional knowledge to get a fuller picture of the effects and there needs to be better communication between the different experts. The Panel heard that EA capacity is funded by the Major Project Management Office initiatives and in the absence of this funding, the departments would not have the capacity to effectively engage.
The role of science in EA was discussed. It was noted that some issues are not possible to be decided on science alone and therefore the use of follow-up monitoring and adaptive management, the application of the precautionary principle and the use of management plans and other documents to identify protected area values, are required. The Panel heard that science is not black and white and there can be conflicting data and conclusions. It was noted that there should be more coordination of technical workshops to focus on science questions where there are conflicting views. Scientists could then work towards resolving the issues. There is also a need for standardization and transparency and availability of data, including guidelines to interpret science and bring clarity. There was recognition that western science and community science need to be reconciled and defined.
Other issues related to science included:
- Policy versus science - for example the differences in how Fisheries and Oceans Canada and Environment and Climate Change Canada implement the Species At Risk Act creates uncertainties for applicants and challenges for regulators
- Perception – if there is a public perception that there will be an impact, then it does not matter what the science says
- Modelling – need to understand the modelling to assess effects
- Reliance on science of other departments before your department can assess effects related to their mandate
- Significance – for example the criteria to assess significance, difference between individual versus a population effect, weighting of evidence
- Lack of proactive science – need information provided in proposals to inform the science needed for the future
Federal departments raised concerns regarding the legislated timelines in CEAA 2012. They indicated that timelines caused challenges for dialogue with colleagues and ensuring the information provided is well informed by science. They indicated that timelines also cause issues related to transparency as sometimes federal discussion is happening after the timeline for comment has passed. They suggested that issues with timelines related to consultation with Indigenous groups need to be resolved.
DECISION AND FOLLOW-UP
It was stated that as a predictive tool, EA does not guarantee certainty therefore there needs to be mechanisms to go back and adapt to reality. It was suggested that there needs to be agreement on assumptions made during the EA process, then monitoring with the ability to manage adaptively. It was also noted that there needs to be a feedback loop between follow-up and informing future EAs. This mechanism would help build confidence in the process. Other points mentioned included: establishing ongoing monitoring committees, having Indigenous and community involvement, and having joint monitoring for more effective transition between the EA and regulatory phase. It was also observed that follow-up does not happen for non-project specific issues and that this needs to change.
Transparency was highlighted as being important and helping to deal with perception of bias; transparency and availability of data as well as transparency with regard to compliance and enforcement. A challenge noted was how to provide the information to the public. Suggestions provided included posting of warnings, compliance issues, and inspection reports. It was noted that the Northern Boards post all information.
With regard to conditions and decision statements, the Panel heard that there needs to be a mechanism to build in adaptive management or be able to amend conditions. It was also stated that decisions should have expiry dates because if development does not begin for years, environmental conditions could change and the decision may no longer be valid.
Issues around the enforceability of conditions were discussed. The way conditions are worded is viewed as problematic, for example, it was noted that conditions should not just refer to other regulations but rather should have some added value. There were concerns raised that conditions only apply to section 5 of CEAA 2012, for example terrestrial species at risk are not protected.
It was suggested that conditions need to be tied to a regulator and that the northern regimes do this. An idea was to have workshops to ensure each condition relates to a regulator. It was also suggested that if the EA process and regulatory process were joined then there could be points where you stop and ensure more information is assessed before proceeding, in other words you could stagger conditions for each step of the Project.
Some departments suggested having the proponent do pre-consultation prior to submitting an application and commencing an EA. It was also noted that after the EA decision is made, stakeholders want continued engagement with federal agencies. For example, federal agencies could coordinate community based monitoring and other roles of public and First Nations post EA.
Some departments noted challenges in communicating information to the public and Indigenous peoples. Who should be consulting with the public and Indigenous groups was discussed, for example, expert scientists versus people trained in the ability to communicate effectively.
Departments noted that better coordination mechanisms are needed and that proper federal and provincial coordination should occur early. Some indicated that EA could be better married to the regulatory system with provinces and municipalities. Others suggested that good coordination does occur between federal and provincial governments such as in joint review panels.
With regard to coordination of federal departments during the EA process, it was noted that the federal coordination notification should be reinstated as some departments do not have the capacity to provide information voluntarily. There was also discussion regarding improving coordination between federal experts and proponent experts.
Challenges and best practices in transitioning from an EA to the regulatory phase were discussed. The Panel heard that there is a need for a coordinating body post EA decision to help with crown consultation for the regulatory process. A suggestion was made that the Responsible Authority should continue as the crown consultation coordinator.
Some departments suggested that all regulatory tools should be integrated into the EA process to better inform both the decision and the regulatory phases. Some departments pointed out the value of being able to integrate the regulatory phase with the life cycle of the project for responsible authorities such as the Canadian Nuclear Safety Commission and the National Energy Board. For example, they have the ability to re-evaluate risk assessment after the EA is complete. Others were of the view that the planning and regulatory phases should remain separate to keep the focus clear.
Challenges were noted with regard to how to integrate with other authorizations regarding permitting. A suggestion was made to have workshops to discuss implementation of decision statements. Timelines also pose challenges to move towards the regulatory phase. This challenge was particularly noted for substituted processes. If timelines were more flexible, federal departments could work together better.
The following federal bodies were represented at the technical sessioin:
- Canadian Nuclear Safety Commission
- Environment and Climate Change Canada
- Fisheries and Oceans Canada including Canadian Coast Guard
- Health Canada
- Indigenous and Northern Affairs
- Innovation, Science and Economic Development Canada
- Natural Resources Canada including Major Projects Management Office
- National Energy Board
- Parks Canada Agency
- Transport Canada
Submissions Received in November 8 Meeting
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