What We’ve Heard – Provincial and Territorial EA Administrators and Boards Technical Briefing Ottawa, Ontario
The Expert Panel for the review of environmental assessment (EA) processes met in Ottawa on November 2, 2016, for an in-person session with provincial and territorial EA Administrators and Boards.
Provincial and territorial environmental assessment practitioners from across Canada met with the Expert Panel to discuss opportunities for reducing duplication while maintaining robust environmental assessment processes, as well as best practices and opportunities for improving harmonization and cooperation in environmental assessment and Indigenous engagement.
The following summary presents the comments and input received throughout the in-person dialogue 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.
KEY MESSAGES TO THE EXPERT PANEL
The session began with provincial and territorial practitioners presenting key messages to the Expert Panel. It was stated that, in the view of the practitioners, the common objective of the federal, provincial and territorial governments is a rigorous environmental assessment process that provides opportunities for effective public engagement and meaningful engagement of Indigenous peoples.
The representatives emphasized the importance of “one project, one assessment”, the need for a flexible federal environmental assessment process that enables cooperation, and the need for tools that support reduced duplication, including substitution1 of the federal process for the provincial one.
Participants also highlighted the need for federal expert engagement in provincial environmental assessment regimes and that, in modernizing federal environmental assessment processes, the jurisdictional division of responsibilities between the federal, provincial and territorial governments should be respected.
The Panel heard that the best placed jurisdiction, the jurisdiction with the broadest regulatory role with regards to the project, should be responsible for conducting the environmental assessment and that there should be a clear justification for all activities included on a federal list of projects requiring an environmental assessment.
The remainder of this summary is organized using the Panel’s “Suggested Themes for Discussion”, available on the Panel’s website at www.EAreview.ca.
ENVIRONMENTAL ASSESSMENT IN CONTEXT
The Panel heard about various issues and opportunities with current environmental assessment processes and the alignment opportunities that could continue to reduce duplication and increase process certainty. The need for a flexible federal environmental assessment process was reiterated to the Expert Panel throughout the day. The flexible approach would support the philosophy of “one project, one assessment” by ensuring the federal regime could align with any of the distinct provincial and territorial environmental assessment regimes.
The Panel heard that many jurisdictions in Canada have the ability to consider a broad range of issues in the environmental assessment process, including socio-economic considerations as well as positive and negative impacts likely to result from a project. The consideration of positive and negative effects helps inform a decision on whether the project is in the public interest.
With regards to the consideration of policy commitments in environmental assessment, such as climate change objectives, the Panel heard that most environmental assessment regimes in Canada consider the impacts associated with climate change and the ability of a project to adapt to a project. Many do also consider greenhouse gas emissions, but some continue to be challenged with how to determine that there will be a significant impact on the environment based on the rate of greenhouse gas emissions. The Panel heard that some other jurisdictions, which have policy and regulatory tools to support the implementation of their climate change commitments, make a determination of the significance of impacts when comparing a project’s emissions to the policy’s objectives.
The Panel heard that the environmental assessment process is not the place to discuss or set broad policy commitments but is rather a tool to implement regulations or policies put in place to implement those commitments. Environmental assessments may also unearth new policy issues that would need to be discussed more broadly outside of the process.
OVERARCHING INDIGENOUS CONSIDERATIONS
The Panel heard about a variety of approaches to engaging with and addressing impacts to Indigenous peoples. In many jurisdictions, the procedural aspects of Indigenous consultation are delegated to the proponent. The government, however, has a role in verifying the results of consultation and determining that consultation was adequate.
The Panel heard that, in environmental assessment regimes established under Treaty or Comprehensive Land Claims Agreements, the Indigenous way of life is at the core of the review process and that Indigenous peoples are engaged throughout environmental assessment. For example, co-management bodies, which include Indigenous and government representatives, have been established to make decisions on the need for and scope of an environmental assessment, the determination of impacts, and the recommendation on whether the project should or should not proceed.
The Panel also heard that, as a best practice, Indigenous groups can be invited to participate on environmental assessment working groups, which are tasked with leading a technical review of the environmental assessment information provided by a proponent. It was also stated that starting early can be advantageous, both for direct engagement with Indigenous groups to determine how they want to be involved, and for negotiations of Impact Benefit Agreements. Early engagement allows for an early understanding, before the assessment begins, of what traditional or community knowledge exists, sensitive areas to be avoiding, and considerations for the scope of the environmental assessment.
The Panel heard that there is a need for flexibility in the environmental assessment process in order to enable collaboration between jurisdictions on engagement activities.
PLANNING OF ENVIRONMENTAL ASSESSMENT
The Panel heard from provincial and territorial representatives that the environmental assessment process should be led by the best placed jurisdiction, with support from experts at other levels of government. Generally, the Panel heard that the federal environmental assessment process could apply to projects that are transboundary in nature or are national in scope and that, in these instances, the environmental assessment should focus on areas of federal jurisdiction. A best practice identified was the use of a risk-based approach to determining the depth of the environmental assessment and to allow for a streamlined process for low-risk projects.
The Panel heard from representatives about the existing strategic and regional planning activities underway in provinces and territories and how this work informs decisions on projects subject to environmental assessment. For example, in the eastern offshore region of Canada, the offshore regulatory boards conduct strategic environmental assessments before exploration licenses are issued. The strategic environmental assessment process enables a more streamlined environmental assessment review at the project level. To support the implementation of strategic environmental assessments across Canada, the Panel heard that the federal government should set out the framework, outlining implication, benefits and cooperation mechanisms, and establishing guidance for the application of strategic assessment by other jurisdictions with federal expert support.
The Panel heard that in many jurisdictions, land-use or regional planning is a policy or legislated requirement, and projects must demonstrate how they fall within established plans. Regional assessments are tools to better address the cumulative effects of multiple projects in a region. The Panel heard that if the federal government were to conduct regional assessments, they should be required to do so in collaboration with provinces or territories.
CONDUCT OF ENVIRONMENTAL ASSESSMENT
The Panel heard that there is a need to ensure impartiality in the environmental assessment process when relying on industry expertise. Ensuring a robust appointment process for boards or panels conducting environmental assessments also builds trust in the process. An independent oversight body may also be a mechanism to bring credibility to the environmental assessment process.
The Panel heard that qualified or certified professionals should be relied upon to prepare the information required for the environmental assessment process and that a strong environmental assessment process should not be overly broad in scope, focusing on issues that are of greatest concern to stakeholders. The establishment of a technical review committee is important to tap into specific areas of science and ensure the right scientists are at the table to effectively review the project information. The committee should include indigenous representation.
DECISION AND FOLLOW-UP
The Panel heard that there is a need for coordination between federal and provincial government for compliance activities and when developing conditions or approvals. The federal government should have the ability to delegate to provinces or territories the responsibility of drafting and enforcing conditions. The Panel also heard that there should be an ability to amend federal decision statements issued to proponents to allow for adaptive management and project design changes.
The Panel heard that there is a need for early engagement with the public and Indigenous groups, and that engagement on the scope of the environmental assessment is an important aspect of this early engagement. There is also a need for transparency and openness throughout the process, including on the Minister’s environmental assessment decision, such as through reasons for decision.
The Panel heard various perspectives throughout the day on the issues and opportunities related to coordination and harmonization with the provincial and territorial representatives. The Panel heard that reducing duplication is a core priority for all jurisdictions and that “one project, one assessment” should continue to be a key objective as environmental assessment processes are modernized. Suggestions to improve coordination included:
- engaging early to align consultation activities
- empowering regional staff to make timely decisions that enable alignment
- negotiating cooperation agreements with all jurisdictions, and
- ensuring flexibility in the federal environmental assessment process to accommodate the variation in provincial regimes.
The Panel also heard that substitution is successful in the west and should continue to be a mechanism available to provinces and territories. Participants stated that substitution should be improved upon to increase up-take and continue to reduce duplication.
- British Columbia Environmental Assessment Office
- Alberta Environment and Parks
- Alberta Energy Regulator
- Saskatchewan Department of Environment
- Manitoba Department of Sustainable Development
- Ontario Department of Environment and Climate Change
- James Bay Advisory Committee on the Environment
- New Brunswick Department of Environment and Local Government
- Nova Scotia Department of Environment
- Canada-Nova Scotia Offshore Petroleum Board
- Newfoundland and Labrador Department of Environment and Conservation
- Canada-Newfoundland and Labrador Offshore Petroleum Board
- Northwest Territories Department of Land
- Mackenzie Valley Environmental Impact Review Board
Submissions Received in November 2 meeting
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