Government of Canada

 

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The Expert Panel for the review of environmental assessment (EA) processes met in Saskatoon September 19-20, 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 - September 19, 2016

Over the course of the Panel’s first day, the Panel heard many perspectives on what EA should achieve. Some participants voiced that EA should balance common interests such as economy and preserving natural resources, while others voiced that the protection of future generations and the assessment of long-term impacts is the most important consideration.

The Panel also heard that EA is a planning tool that should focus on a project’s conceptual design. It was recommended that the level of information required from proponents in an EA should take into consideration that more technical aspects can be dealt with through regulatory approvals and that uncertainties can ultimately be tracked through monitoring and follow-up programs.

Setting clearly desired and defined environmental outcomes at the outset of an EA was described as critical in order for proponents to design their projects efficiently and with greater certainty. It was also mentioned that the focus of EA should be on achieving acceptable environmental outcomes rather than using ‘’best available technologies’’ and that project proponents should be allowed to select technologies based on a number of factors including their economic and technical feasibility. Desired environmental outcomes should be informed by proponent’s own assessments of risk to the public, Indigenous communities, workers and to the environment.

It was also discussed that environmental outcomes of individual projects should not be assessed against broader national goals such as those relative to the reduction of greenhouse gas emissions. Some participants indicated that there is too much asked of project EA, and policy uncertainty should not be the burden of individual project EA. National goals are achieved across a number of policies and jurisdictions and a single project cannot have a significant influence on these goals.

It was also mentioned that desired environmental outcomes can be obtained through the conduct of regional studies by governments. The review of specific projects should be done within the context of regional landscape and cumulative effects should be taken into consideration at the regional level. Federal EA processes should assess sustainability and alternatives to projects based on clearly defined criteria. Projects that cannot meet planning frameworks should be rejected.

Overarching Indigenous Considerations

Public sessions - September 19, 2016

The Panel heard that broader policy decisions, such as how the federal government should demonstrate its full support to the principles of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), should be made outside of project EAs.

Indigenous sessions - September 20, 2016

The importance of traditional knowledge was presented to the Panel. Participants explained the benefits of considering traditional knowledge insofar as this information can help understand baseline conditions, potential effects, cumulative effects, and interconnected ecosystem changes. The Panel was told that traditional knowledge holders and land users are living on the land and therefore have both longstanding and current knowledge of the environment. The importance of bridging western science and traditional knowledge, rather than re-writing traditional knowledge into western science, was emphasized.

The Panel heard about the interconnection between impacts to potential and established Aboriginal and Treaty rights and EAs. In this regard, presenters identified the need for clearly articulated guidance on assessing impacts to rights and to assessing current use and occupancy. The Panel heard that the Crown has failed to protect rights and meet treaty obligations, generally and with respect to EA processes and decisions. Participants explained the need for action to be taken based on information provided from Indigenous groups on impacts to their rights, and that the Crown should be held to account for its compliance with its Aboriginal and treaty rights obligations. The need for accommodation, not only consultation, was also emphasized. Participants explained that better processes would reduce their need to use litigation to challenge impacts to rights and discriminatory practices.

With regard to the UNDRIP, the Panel heard of the importance of free, prior, and informed consent. The Panel was told that consent is something that builds with time; in other words, that engaging Indigenous groups early in project and EA design, planning, studies, analysis, and implementation is essential. Participants explained that free, prior, and informed consent requires the Government of Canada to engage with Indigenous peoples in good faith, prior to allowing development. The difference between free prior and informed consent and social license was articulated, with free prior and informed consent being grounded in legal rights and social license being based on values. The right to withhold consent was presented as an integral component. EA processes were generally described as part of broader free, prior, and informed consent practices.

In addition to expertise provided about EA processes, concerns were raised with regard to the timing of the Expert Panel’s review of EA processes, specifically the limited notice provided in advance of the in-person engagement sessions held in Saskatoon and the timing of the Participant Funding Program deadline and notice relative to the in-person engagement opportunity. Participants advised the panel that this goes against UNDRIP’s principles and that limits Indigenous people’s abilities to provide input to the Panel that considers their technical experts, leadership, and community members. The Panel heard about the importance of protecting the environment for future generations. Additionally, it was communicated that the Panel’s recommendations will have impacts on Indigenous peoples and their rights.

Planning of Environmental Assessment

Public sessions - September 19, 2016

There were competing views shared by participants regarding the changes to EAs brought by the Canadian Environmental Assessment Act 2012 (CEAA 2012). Some voiced that changes have narrowed the scope of EA and they would like this reversed. Others stated that CEAA 2012 introduced positive changes, including legislated timelines, the identification of lead federal agencies responsible for conducting EAs, clear identification of designated projects that could be subject to an EA through the Regulations Designating Physical Activities, as well as the consideration of jurisdictional boundaries when considering environmental effects. They believed these improvements should be maintained as they foster greater process certainty and efficiency and reduce duplication. What should be included in the scope of EA was discussed and the Panel heard that things such as socio-economic effects, human health, effects to water and air among many other things should be assessed in federal EAs.

Both strategic EA and regional EA were mentioned. It was voiced that strategic EA should be done before project EA, and that regional EA and follow-up monitoring are best-placed to assess cumulative effects.

Indigenous sessions - September 20, 2016

Capacity was identified as a significant concern and barrier to meaningful participation in EA processes. Participants explained that their communities are often faced with large volumes of highly technical information to review with tight deadlines, and that sufficient resources for technical staff to review and respond is required. Many participants noted that government departments did not provide the technical or financial support that communities would like.

The Panel heard about the importance of early engagement and associated relationship building, between Indigenous groups, industry, and the Crown. Some participants noted that their communities are not anti-development but should be provided the opportunity to have a say, from project design through approvals. The Panel was told that early engagement was critical to meaningfully considering Indigenous groups’ input and expertise for projects and for building trust in the EA process, and that too often Indigenous groups are only engaged at a point where the outcome of the process seems pre-determined.

Conduct of Environmental Assessment

Public sessions - September 19, 2016

Participants commented on the comprehensiveness and timeliness for conducting EAs. In conducting EAs, some participants were of the view that there should be complete, comprehensive baseline studies and risk-based science in predicting effects. It was expressed that EAs, notably those conducted for oil sands development projects, do not provide sound analyses of social impacts on traditional land. Additionally social impact studies are often carried out by consulting firms hired by project proponents, who generally lack expertise and academic qualifications.

The Panel also heard that government agencies and Review Panel members also do not have proper expertise and training to challenge proponents on these studies. It was stated that standards are needed to better assess social impacts within EAs. The Panel heard an idea regarding having a joint EA review committee with regulators from different departments or agencies to lend their expertise and help make the process more efficient and help build public trust.

Indigenous sessions - September 20, 2016

The Panel heard about the importance of social, cultural, and economic considerations within EA. The Panel was told of the importance of having qualified social-science trained academics or consultants as well as the inclusion of Indigenous peoples with life experience and knowledge of these effects. It was noted that misrepresentation of these effects may be compounded by language barriers, where Indigenous peoples may not participate in their language of choice. Presenters noted that there should be space for decisions to take into account direct social, economic, and cultural impacts from development.

The Panel was told there is a place for impact benefit agreements within EAs but that there is disparate capacity between Indigenous groups across the country to meaningfully participate in and benefit from the negotiation of these agreements. It was explained that impact benefit agreements were only one of many means of addressing impacts and should not be used as a way for the government to pass its responsibilities on to project proponents. Participants explained that both industry and government must meet their respective accommodation obligations.

Decision and Follow-up

Public sessions - September 19, 2016

There were many different views when it came to who should be making the EA decisions. Some participants believed that it should be status quo as the regulators were best placed to make these decisions, and that cabinet should continue to make decisions for projects that were found to have significant adverse effects. Other participants thought that decision making should be independent. One idea was to have a committee of subject matter experts making the decisions. Some participants felt that the loss of confidence in EA by the public is symptomatic of broader loss of confidence in government decision-making. As the government takes steps to restore confidence in itself, this will result in greater confidence for all government decision-making.

The type and sources of information that should be taken into account in decision making was discussed. Participants stated that decisions should be evidenced-based using scientific as well as traditional Indigenous and local knowledge. Having information peer-reviewed and weighted accordingly was also indicated to be important.

With regard to follow-up and monitoring, the Panel heard that monitoring should be independent and not proponent-led, and it was suggested that communities should be more involved. The Panel also heard that proponents should continue to conduct follow-up and monitoring, while others felt it was the role of the government departments.

Indigenous sessions - September 20, 2016

Participants explained the importance of Indigenous peoples having a say in the developments occurring in their traditional territories and that may impact their rights. Early engagement, as noted above, was described as critical to ensuring that Indigenous groups’ expertise, knowledge, and concerns could contribute to and inform decision making.

Participants noted that follow-up and monitoring are important components of EA processes that could use improvements. Positive follow-up and monitoring could include building capacity for community members to conduct monitoring, collaborative work between proponents and communities, respect for and responsiveness to the information received from traditional land users, involvement of Indigenous communities in the design of related programs, and adequate funding. The Panel also heard that information about regional monitoring conducted by governments is not considered readily available to Indigenous groups and that there are limited partnerships between governments and Indigenous groups in follow-up and monitoring. Presenters identified opportunities for community based monitoring, local collection of data, and bridging information gaps, throughout project life-cycles.

Public Involvement

Public sessions - September 19, 2016

Participants raised the importance of meaningful public engagement with sufficient capacity and opportunity for all stakeholders. It was indicated that time constraints often prevent meaningful public involvement in EAs as there is little time (30 days in most cases) to review substantial documentation and to provide comments to responsible authorities. It was noted that notification needs to be improved and that more opportunities are needed to participate including early engagement. Some participants indicated that anyone should be able to participate while others were of the view that public engagement should focus on stakeholders who are directly impacted by the proposed project.

Coordination

Public sessions - September 19, 2016

The Panel heard that from some presenters who support the concept of ‘’one project one assessment’’ and believe that EA process duplication should be minimized through greater coordination within the federal government and between the federal and the provincial government. Suggestions provided include using the substitution provision under CEAA 2012, ensuring EA processes consider jurisdictional boundaries, or establishing formal harmonization agreements. It was also suggested that well-established working protocols such as those developed between the province of Saskatchewan and the Canadian Nuclear Safety Commission could ensure respective EA processes are aligned as much as possible.

Annex I

Public sessions - September 19, 2016

List of Presenters

  • Clint Westman, University of Saskatchewan
  • Tina Searcy, AREVA Resources Canada
  • Liam Mooney, Cameco
  • Pamela Schwann, Saskatchewan Mining Association
  • Candyce Paul
  • Sharla Hordenchuk, Saskatchewan Ministry of Environment
  • Dale Lautner, SaskPower
  • Caroline Ducros, Canadian Nuclear Safety Commission
  • Hayley Carlson, Saskatchewan Environmental Society

Workshop Participants

  • There were 26 participants.

Indigenous sessions - September 20, 2016

List of Presenters

  • Diane McDonald, Ya’Thi Néné Lands and Resource Office
  • Diane McDonald, on behalf of Chief Coreen Sayazie, Black Lake Denesuline Nation
  • Diane McDonald, on behalf of Chief Rudy Adam, Fond du Lac Denesuline First Nation
  • Chief Bart Tsannie, Hatchet Lake Denesuline Nation
  • Chief Matthew Todd Peigan, Pasqua First Nation
  • Victor Fern
  • Chief Calvin Sanderson, Chakastaypasin Band
  • Carol Crowe, Environmental Consulting and Training, Indigenous Visions Inc.
  • Clarence Natomagan
  • Jack Hicks
  • Vice Chief Edward Lerat and Cynthia Westaway, Federation of Sovereign Indigenous Nations
  • Kyle Vermette

Open Dialogue Participants

  • There were 5 participants.

Submissions Received in Saskatoon

Title

Author

Date Posted

View Full Submission

Supporting documentation for the Comittee of Future Generations, Saskatoon Sept 20

Committee for Future Generations

January 09, 2017

Speaker Notes from Diane McDonald for Saskatoon, Sept 20 2016

Diane McDonald

January 04, 2017

Speaker Notes from Chief Rudy Adam for Saskatoon, Sept 20 2016

Rudy Adam

January 04, 2017

Speaker notes from Chief Coreen Sayazie for Saskatoon, Sept 20 2016

Coreen Sayazie

January 04, 2017

Speaker notes from Chief Bart Tsannie for Saskatoon, Sept 20 2016

Bart Tsannie

January 04, 2017

Transcript - Public Presentations, Saskatoon Sept 19

Saskatoon Transcript

November 07, 2016

Presentation "Review of the Federal Environmental Assessment Process" Sept. 19, 2016

Cameco

October 19, 2016

Presentation "Review of the Federal Environmental Assessment Process" for Saskatoon, Sept. 19, 2016

AREVA Resources Canada

October 19, 2016

Presentation "Environmental Assessment Processes Inclusion of Indigenous peoples and traditional ecological knowledge in the EA" for Saskatoon September 20th 2016

Carol Crowe

October 19, 2016

Supporting document 2 for Saskatoon Presentation September 20th 2016

Kyle Vermette

October 19, 2016

Supporting document 1 for Saskatoon Presentation September 20th 2016

Kyle Vermette

October 19, 2016

Presentation by Caroline Ducros "Presentation to Mandated Review EA Panel" for Saskatoon September 19th 2016

Canadian Nuclear Safety Commission

October 19, 2016

Regulations Respecting Consultation and Accomodation September 20th 2016

Government of Paskwa

October 19, 2016

Presentation "SaskPower Presentation to Expert Panel" for Saskatoon Sept. 19 2016

SaskPower

October 19, 2016

Presentation "Review of Federal Environmental Assessment Process Presentation to the Expert Panel" for Saskatoon Sept. 19 2016

Saskatchewan Mining Association

October 19, 2016

Stephen Harper's Shameful First Nations Policy

Paskwa First Nation

October 19, 2016

Speaking Notes for Presentation in Saskatoon September 20th 2016

Westaway Law Group on behalf of the Federation of Sovereign Indigenous Nations

October 19, 2016

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