Government of Canada

 

Back Sudbury, ON

The Expert Panel for the review of environmental assessment (EA) processes met in Sudbury November 3-4, 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 3, 2016

The Panel heard that sustainability should be the goal of a modern EA process. In particular, there were comments that the current system does not balance environment and economy very well, and some participants felt economic benefits were considered more strongly than environmental concerns in decision-making. Some participants were of the view that EA should be an assessment process, not an approval process, and that currently, projects may be approved regardless of the assessment.

The Panel heard that greenhouse gases are an important consideration when evaluating resource development projects. For example, there was concern that hydroelectric projects are touted as “green” even though they still emit greenhouse gases and do not receive the same level of scrutiny in this regard as other projects.

Participants stressed the need for a process that all Canadians, including Indigenous peoples, can trust. They must feel as though EA is serving the public interest and creating a healthy environment for future generations. Part of creating trust is making a process that is clear and transparent. It was mentioned that certainty for project proponents will never exist without a federal EA process that is trusted.

Overarching Indigenous Considerations

Public sessions – November 3, 2016

The Panel heard about particular projects such as Site C and Muskrat Falls, which some felt were trampling the rights of Indigenous peoples. It was suggested that in many of the cases, due to the current EA process, Indigenous peoples have no choice but to bring their various concerns regarding projects to court for resolution.

Issues were raised with regard to consultation in EA processes. The Panel heard that it should be made clearer by government what constitutes adequate consultation. Some suggested that adequate consultation can only be achieved through proper capacity building and funding for the EA process. It was suggested that consultation with Indigenous peoples should also be broad and seek to involve all those affected, including those with established treaties and those without. Some expressed the view that nation-to-nation relations should be a focus and goal of the EA process.

Indigenous sessions – November 4, 2016

The Panel heard personal accounts from First Nation peoples of their connection to the land and desire to share their knowledge with youth and others. The Panel learned about a youth camp that is being threatened by forestry operations which is not subject to the federal EA process. Participants shared their experience with the provincial forestry permit review process, and identified inadequacies in this process to consult First Nations and accommodate potential impacts to cultural and archaeological sites and traditional land use. The Panel also heard about the effects to First Nations peoples from historic forestry operations, including mercury poisoning in Grassy Narrows First Nation.

The Panel learned that in order to receive traditional knowledge, it is appropriate to offer food and tobacco to the community. It was also highlighted that the people, including elders, should be engaged, not just community leadership, as elders have the knowledge of the land. Those who wish to receive traditional knowledge should take the time to go on the land with the elders. The Panel heard that First Nations have an understanding of how to manage resources, for example where to cut trees, how many trees can be cut and what trees should be protected.

The Panel also heard about the importance of traditional knowledge and the loss of many communities’ traditional knowledge practices due to the residential school system and current government land and resource management policies. The Panel heard about the language barriers that prevent EA practitioners from understanding and receiving traditional knowledge, as primary knowledge holders often communicate their knowledge in their traditional language. Presenters noted the resistance of science to recognize and incorporate the spiritual component of traditional knowledge. The Panel heard that traditional knowledge and science are two distinct knowledges that need to find a way to work together. It was acknowledged that a statute requiring traditional knowledge may be one mechanism to ensure it is considered. The Panel heard about a case study where elders and community members worked with a mining company to integrate traditional knowledge throughout the mine life cycle, focusing on mine reclamation. The process demonstrated the value of traditional knowledge and the opportunities for capacity building that were realized both within the communities and the mining company.

The Panel heard about the capacity challenges faced by First Nation communities. It was identified that communities are overwhelmed with consultation requests and struggle to keep required staff in land and resource management positions due to funding instabilities. The Panel heard that proponents capitalize on this lack of capacity. It was argued that capacity is an issue that extends beyond funding and includes giving Indigenous peoples a voice. Capacity and education is a two-way street, which also includes proponents and governments learning about traditional knowledge.

The Panel heard about possible solutions to building capacity. It was recommended that an Indigenous Engagement Strategies office be created within the Canadian Environmental Assessment Agency. This office would focus on active engagement at a local and regional level to complete work ultimately supporting decolonization and nation-to-nation relationship building efforts. Regional/treaty participation in EA could relieve the pressure put on individual First Nations by proponents and could be a more effective use of limited human resources in land-use planning. The Panel also heard that Indigenous communities should identify who is affected, who should be consulted and who needs impact benefit agreements.

Planning of Environmental Assessment

Public sessions - November 3, 2016

Many participants discussed the issue of managing cumulative impacts at the project level, particularly with respect to some of the mining projects in Ontario and the Ring of Fire region. They stressed the need for regional EA or regional strategic EA to adequately manage cumulative impacts in these areas, and that this work should be made a priority as many regions are already being affected by cumulative impacts.

A number of comments around the scope and factors currently considered in EA were provided. Some participants suggested that EA should do a better job of taking into account social and community values that may be affected by projects. Mitigation was critiqued and there was a suggestion that EA should not be focused on mitigating adverse effects but should focus on determining alternatives and selecting the one that leads to the best overall outcomes. Accidents and malfunctions were also discussed as a potential area for improvement. It was suggested that EAs do not currently consider the worst case scenario and that project proponents should be held accountable for this scenario, including making sure the proponent can show that it has the ability to financially cover that liability should the worst case happen.

Finally, a number of participants suggested that how EAs are required should be revisited. There was a lack of consensus, with some suggesting a return to the former “triggers” approach, and others suggesting that the project list approach makes sense, but that the types of projects and thresholds should be updated based on those with the potential for significant effects to areas of federal jurisdiction.

Indigenous sessions – November 4, 2016

The Panel heard that the definition of environment should be broader than biophysical components, and that sustainability should include aspects of the human environment, including safety and community relations. The scope of EA should include consideration of impacts to Indigenous sacred sites, and ensure they are understood and protected.

It was identified that the current project list is inadequate to address First Nations’ needs. Participants noted that thousands of projects that previously would have required a federal EA no longer do. It was also noted that the current process inaccurately assumes that provincial assessments are equivalent to federal assessments. Participants asked that the federal government uphold its legal obligations and take accountability for decision-making that affects Aboriginal title and rights. It was recommended that project triggers should be brought back to ensure that federal assessments are completed for projects that may result in impacts to Indigenous peoples.

Conduct of Environmental Assessment

Public sessions - November 3, 2016

Roles and responsibilities in carrying out EAs were discussed. Some participants shared their experiences with the National Energy Board or the Canadian Nuclear Safety Commission. They expressed concerns around the relationship that exists between these responsible authorities and the industries they regulate, and suggested that neither should be responsible for conducting EAs. Some suggested a lack of consistency between EAs with these responsible authorities, especially in terms of public participation opportunities. A number of participants suggested that the body responsible for conducting EAs needs to have independence and not have ties to proponents. For example, one participant suggested that an independent body, either a third party or government, should be responsible for conducting EAs with proponents responsible for the costs.

Timeliness and certainty in the conduct of EAs was also discussed. Some participants felt as though clear timelines for conducting EAs and making decisions are necessary to ensure certainty. A clear process helps investor certainty since the requirements are set out from the start and they must conform to them. However, others suggested that certainty is a two-way street and that project predictions must also achieve a level of certainty for communities and groups that will be affected by development. For example, actual environmental effects during operation should not stray too far from predictions made in the EA.

Indigenous sessions – November 4, 2016

Participants noted that currently, traditional knowledge is minimal or absent for EAs. It was identified that Indigenous knowledge, as well as local knowledge, should be included in all EA processes. The Panel heard that the inclusion of traditional knowledge would support working towards a positive net environmental impact. Further, it was identified that Indigenous knowledge must have authority during the EA process, as well as during project implementation. One participant identified that meaningful incorporation of traditional knowledge would include incorporation of information into the ecological baseline, the effects assessment, and follow-up program design.

The Panel heard that one of the major issues with the Canadian Environmental Assessment Act, 2012 is that the timelines for Indigenous consultation, for example 30 day comment period, are inadequate. It was recommended that a mechanism for Indigenous communities to “stop-the-clock” be created to ensure meaningful consultation. Integration of the International Association for Impact Assessment’s best practice principles for meaningful participation was recommended as a method for enhancing consultation, engagement and capacity of Indigenous communities in EA.

Decision and Follow-up

Public sessions - November 3, 2016

Decision-making processes were discussed by a number of participants, with varying ideas about who should be making decisions and how decisions are made. Specifically, the Panel heard that the current EA process is geared towards making “yes” decisions and that the option of saying “no” to projects is rarely considered. Participants were critical of the fact that communities or groups affected by the project do not currently play a part in decision-making. Some suggested that decisions should be made by an independent body that has representation from local communities or Indigenous peoples.

Decision-making processes were discussed by a number of participants, with varying ideas about who should be making decisions and how decisions are made. Specifically, the Panel heard that the current EA process is geared towards making “yes” decisions and that the option of saying “no” to projects is rarely considered. Participants were critical of the fact that communities or groups affected by the project do not currently play a part in decision-making. Some suggested that decisions should be made by an independent body that has representation from local communities or Indigenous peoples.

In terms of follow-up and monitoring, participants suggested that local communities or groups affected by the project should play a role in monitoring. Some participants stated that the proponent having responsibility for monitoring and follow-up on EA commitments is questionable, and that this responsibility should fall on the government or a third party. There were concerns over a lack of capacity for compliance and enforcement once projects have received federal approval. Finally, some participants raised issues around how conditions are established and that they may not be enforceable or result in environmental and social well-being and protection.

The Panel heard that Indigenous communities currently do not have a meaningful role in final EA decision-making within their territories. Significantly affected Indigenous communities should have a role in the government review team for projects. It was recommended that Indigenous communities should also have a role in developing assessment criteria, and be directly consulted by the Minister of Environment and Climate Change. Participants asked the Panel to recommend policy changes to the Canadian Environmental Assessment Act, 2012 that recognize international environmental actions and support integration and recognition of Indigenous customary law and worldviews.

Public Involvement

Public sessions - November 3, 2016

Participants discussed how their input is important in the EA process and that they want a process where public input is clearly considered and has an effect on project design and decision-making. It was suggested that people should not need to prove that they are experts in order to participate in an EA. There were also concerns that public participation is used by proponents as a way to legitimize the process, for example by saying that the public has participated and is in agreement with a project.

How the public participates in EAs was also discussed. In particular, participants want to be involved in all phases of the EA, from early planning stages to monitoring and follow-up. In order to do so, they require resources and funding. Relying on volunteers to review information was seen as a constraint affecting some groups. Others suggested that EA documents must be summarized in plain language to help facilitate better understanding. Some participants raised the issue of awareness as a current constraint to public involvement in EA. They felt as though more efforts to advertise and raise awareness of projects would go a long way in increasing public involvement in the EA process.

Coordination

Public sessions - November 3, 2016

The Panel heard that the EA process should be run by one regulator with sufficient capacity and funding to carry out the responsibilities. It was also suggested that there may be jurisdictions outside of the federal government that have pertinent information that may be useful in the EA process that is not currently accessible.

Indigenous sessions – November 4, 2016

The Panel heard that there is currently no mechanism for a federal EA to be delegated to a non-land claim based Indigenous authority by substitution. There is a need for land-code First Nations that have their own environmental law to be recognized. A co-management approach to EA was recommended.

Annex I

Public sessions - November 3, 2016

List of Presenters

  • Brennain Lloyd – Northwatch
  • Linda Heron – Ontario Rivers Alliance
  • Mike Wilton
  • James Gomm
  • Ambrose Raftis
  • Elaine Porter
  • Naomi Grant
  • Barbara McNichol
  • Liza Vandermeer

Workshop Participants

  • There were 18 participants.

Indigenous sessions – November 4, 2016

List of Presenters

  • Clyde McNichol - Camp Eagle Nest
  • Mary Boyden - Eighth Fire Solutions Inc.
  • Martin Millen - Eighth Fire Solutions Inc.
  • Anthony Laforge – Magnetewan First Nation
  • Chief Harry St Denis and Rosanne Van Schie – Wolf Lake First Nation

Open Dialogue Participants

  • There were 5 participants.

Submissions Received in Sudbury

Title

Author

Date Posted

View Full Submission

Speaking notes for Magnetawan First Nation presentation in Sudbury, Nov. 4th, 2016

Magnetawan First Nation

January 05, 2017

Supporting documents for presentation in Sudbury, Nov. 3rd, 2016

Barbara Ronson McNichol

January 04, 2017

Speaking notes for presentation “Presentation to Environmental Assessment Review Process” in Sudbury Nov. 3rd, 2016

Barbara Ronson McNichol

January 04, 2017

Presentation "EA expert panel Presentation" for Sudbury, Nov 4 2016

Eighth Fire Solutions Inc

December 20, 2016

Presentation "Presentation delivered to Environmental assessment Review Panel" for Sudbury, Nov 4 2016

Camp Eagle Nest

December 20, 2016

Presentation "What should the federal environmental assessment process look like?" for Sudbury, Nov 3 2016

Naomi Grant

December 20, 2016

Presentation "Presentation to Expert Panel on Environmental Assessment Process" for Sudbury, Nov 3 2016

Ambrose Raftis

December 20, 2016

Speaking notes "Presentation to Environmental Protection Act" for Sudbury, Nov 3 2016

James Gomm

December 20, 2016

Presentation "Presentation to EPA Expert Panel" for Sudbury, Nov 3 2016

James Gomm

December 20, 2016

Presentation "Presentation to EPA Expert Panel" for Sudbury, Nov 3 2016

James Gomm

December 20, 2016

Presentation "ENVIRONMENTAL ASSESSMENT PANEL" for Sudbury, Nov 3 2016

Mike Wilton

December 20, 2016

Presentation "Environmental Assessment Review" for Sudbury, Nov 3 2016

Ontario Rivers Alliance

December 20, 2016

Presentation "12 Pillars of Next-Gen EA" for Sudbury, Nov 3 2016

Northwatch

December 20, 2016

Presentation "Initial input to Federal EA Regulatory Review Panel Hearings" for Sudbury, Nov 4 2016

Magnetawan First Nation

December 20, 2016

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