What We’ve Heard – Technical Briefing of the Expert Panel by Past Review Panel Members (January 17, 2017)
The Expert Panel for the review of environmental assessment (EA) processes had a discussion with past review panel members via teleconference on January 17th, 2016. There were three participants: Mr. Les Cooke, Mr. Bill Ross, and Mr. Bob Connelly.
Past review panel members met with the Expert Panel to discuss key matters related to EA, mainly regarding the conduct of review panels.
The following summary presents the comments and input received through this technical session. It is intended to present the views of participants, and not the views of the Panel itself.
The Panel wishes to thank the past review panel members for sharing their expertise and experience at this session.
CONDUCT OF REVIEW PANELS
Quasi-judicial versus Informal
The Expert Panel discussed participants’ experiences serving on panels for a number of different project types within various jurisdictional contexts and processes. The participants discussed their views on the pros and cons of using a quasi-judicial approach, such as that of the Alberta Energy Regulator, when compared to a less formal approach. The participants agreed that one of the benefits of using a quasi-judicial approach is the ease of managing the hearings. In quasi-judicial processes, they felt as though the structure and procedural rules are clear and generally well-followed by those participating. In a less formal method, they stressed the need for clear procedures to be drafted and provided in advance to all participants and for these procedures to be followed by participants and enforced by the panel chair.
Generally, the past review panel members described participation in a less formal panel approach to be more public-friendly and less intimidating to participants. They also agreed that in terms of information gathering, less formal processes worked just as well as quasi-judicial processes. The past review panel members also spoke about some of their experiences with hybrid approaches to panels, where some quasi-judicial aspects were used alongside informal methods. They agreed that a hybrid approach can be effective in providing the best of both worlds.
The past review panel members stressed the importance of creating a process where Indigenous communities could actively participate in a way that is consistent with their culture. They suggested that in many cases, quasi-judicial reviews did not lend themselves well to the incorporation of traditional knowledge. The Past review panel members stressed the importance of panelists being able to listen with sensitivity and respect. They stated that elders are experts and hold knowledge that must be well reflected in any panel report. They were also of the view that traditional knowledge can provide a large amount of extremely useful information in an EA.
Harmonization with other Governments
The Expert Panel sought the views of the participants regarding the best way to harmonize federal and provincial EA processes. The participants were all of the view that equivalency should be removed as an option, and the majority were also of the view that substitution should be removed, recognizing that this might be harder to for the provinces to accept.
The Expert Panel heard that a joint review process, where the federal and provincial governments cooperate, is the ideal way for an EA to proceed. This may be the only way to have a thorough review of a project and eliminate questions around jurisdictional boundaries. The past review panel members also suggested that joint processes would lead to better public trust, as all of the participants’ concerns in the EA process could be dealt with in one process without them being told that their concerns were outside of the jurisdiction of the government conducting the EA. They noted the particular importance with regard to cooperation in the context of the Canadian Environmental Assessment Act, 2012 (CEAA 2012) because the scope of environmental effects considered in this legislation may not allow for a holistic view of the environmental effects of a project without the inclusion of provincial considerations.
There was discussion around the lack of provincial participation in some joint or federal review panels. Specifically, Alberta and British Columbia governments were mentioned, including the example of some Alberta departments’ non-participation in some joint hearings in the oil sands. The participants stated that provincial departments may decline to participate because they are engaged in their own process or for other reasons. The past review panel members described the lack of participation as challenging because the provincial authorities have relevant expertise. They also explained that this is issue does not exist in all provinces.
Power to Summon Witnesses
The Expert Panel asked about the right to summon witnesses, particularly in the case where some provincial representatives do not participate in the EA process. The past review panel members explained that the power to summon witnesses is often a last resort. They explained that two questions need to be asked before a witness is summoned: “is the information essential?” and “is there another means of obtaining the information?” In those cases in which past review panel members were involved, the information being sought was able to be obtained through other means.
The Expert Panel discussed the role of panels in decision-making. The past review panel members agreed that the role of panels should be to make recommendations to government rather than serve as ultimate decision-maker. They indicated that it is Cabinet who should decide because it is elected officials who are accountable to their constituents. They also indicated that Cabinet can take into account other broader issues when making a decision; there is a lot of information that must be taken into account when approving or rejecting projects that may be outside of the EA process. The participants raised the example of certain panel processes where the panel has decision-making power and that in some cases, such as that of the National Energy Board, that power had been taken away.
The past review panel members also discussed the potential for a sustainability decision to be made where panels would have a broader mandate to look at socio-economic considerations and public interest when it comes to projects. They indicated that the process seems to be headed in this direction, where more and more issues are discussed within the context of an EA. The participants suggested that considering sustainability would significantly increase the breadth of issues considered in EA currently, and might often require a harmonization agreement in order to make decisions on aspects that may fall within provincial jurisdiction.
PANEL AND SECRETARIAT QUALIFICATIONS
The past review panel members discussed the need for appropriate expertise for review panels. Not only did they feel it is necessary for panel members to have specific expertise related to the project they are reviewing, but they also felt it is essential for them to have experience in managing and being part of the panel process itself. The participants told the Expert Panel that there was once an opportunity for panel roster members to come together, share experiences, and learn from each other in order to establish best practices. The participants felt that this was a helpful exercise to discuss, at a high level, issues in the panel process and ways to better conduct panel business. They suggested that it would be helpful if there were job descriptions provided for both the panel chair and panel members to provide clarity regarding their responsibilities.
The Past review panel members discussed their experience being supported by the federal government in the review panel process. They suggested that having more employees with specific expertise within the Canadian Environmental Assessment Agency to support panels would be helpful. They discussed the relative differences in expertise between the Canadian Nuclear Safety Commission, National Energy Board and the Canadian Environmental Assessment Agency. They indicated that the Canadian Nuclear Safety Commission and National Energy Board deal with very specific project types and have staff with specific technical expertise, and that panel members at these organizations also develop expertise because they deal with similar types of projects all the time. They indicated that the Canadian Environmental Assessment Agency, however, deals with a large breadth of projects, and this may lead to difficulties in gaining project type specific expertise.
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