Government of Canada

 

Back Thunder Bay, ON

The Expert Panel for the review of environmental assessment (EA) processes met in Thunder Bay November 14-15, 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 14, 2016

Participants indicated that the federal EA process should be the gold standard, a model based on consistent and high level standards across jurisdictions that ensure that high quality EAs are conducted throughout the country. The Panel heard that EA processes should move away from looking exclusively at mitigating project’s adverse environmental effects which systematically culminate with project approval. Rather, it was argued that EAs should examine broader questions such as projects’ impacts on international and national commitments such as those relative to biodiversity, climate change, Indigenous peoples and sustainable development. Some participants indicated that projects whose impacts cannot be mitigated, for instance those projects inconsistent with climate change related commitments, should not be subject to approval by the federal government.

The Panel also heard that EA processes should consider a long term vision grounded in sustainability and assess whether projects can achieve long lasting social and economic benefits while avoiding adverse environmental effects, in other words, a net contribution to sustainability. The Panel was told that this approach to project EA, often defined as “sustainability assessment”, could work efficiently in a comprehensive and coordinated approach to EA where project-level, regional and strategic EAs are integrated (also called a tiered EA system). Under such a system, some participants identified that sustainability assessment of projects would have to be linked to climate change and sustainable development policies subject to strategic EAs, and also to cumulative effect assessments conducted through regional EAs.

Indigenous sessions – November 15, 2016

Participants identified that they have a low to moderate level of trust in the federal EA process. They noted that federal EAs should be required for a broad range of projects and policy initiatives. They noted that the outcomes of the EA process should be to provide northern communities with a voice.

Participants advocated for a sustainability approach to EA. It was noted that cumulative effects, including those from historic development must be considered. A sustainability approach must also consider social and cultural impacts with the same weight as environmental and economic impacts. The Panel heard that the outcomes of the EA process should select the best technologies and mitigation, rather than the cheapest options.

First Nations from northern Ontario shared their concerns with the development in the Ring of Fire region, and the EA process for projects in this area. It was recommended that a regional strategic EA be completed to consider and assess impacts throughout the entire territory that may be affected. The Panel heard that regional strategic EA could be used to assess scenarios and options, based on agreed-upon criteria.

Overarching Indigenous Considerations

Public sessions – November 14, 2016

The Panel heard that reconciliation with First Nations has to be one of the Canadian public policy goals and that free, prior and informed consent means a veto right to projects and should be part of the legislation. It was also mentioned that Indigenous Peoples must be partners in EAs if the federal government truly supports the principles of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).

Indigenous sessions – November 15, 2016

First Nations explained that the original intent of the treaties was to provide strategic planning of natural resources within their territory, and called on the Government of Canada to provide mutual respect regarding their implements. They identified that in the spirit of the treaty relationship, the EA process must become a collaborative process, noting that First Nations involvement in knowledge and decision-making would lead to better outcomes. The Panel also heard that recognition of Aboriginal rights, as established in section 35 of the Constitution, should be integrated into the Canadian Environmental Assessment Act, 2012 (CEAA, 2012) and that the process should be amended to include assessment of impacts on those rights, rather than the narrow components of the environment described in section 5. The Crown, including, its representatives during the EA process, must be able to discuss and understand Aboriginal title and rights.

The Panel learned about the Great Earth Law, and the seven generations principle for resource management. First Nations participants identified that their culture and livelihood relies on land and resources, therefore both regulations and policies must fully accommodate Indigenous traditions and culture. They identified that they are not opposed to development, although they want to ensure that the land and resources are protected.

The Panel heard about the importance of integrating traditional ecological knowledge from the beginning of the process, including the selection of valued components. Participants identified that a key constraint to the process is the inability of EA practitioners to understand traditional knowledge and a lack of understanding and respect of culturally appropriate protocols for requesting and receiving this knowledge. An important first step is building a relationship and trust with community members, in particular elders, and respecting protocols such as sharing food. The EA process must respect that traditional knowledge sharing is an oral tradition and it should allow sufficient time for this process (i.e., a year vs. 30 days). They identified the importance of speaking with women, who are the knowledge holders of the location of scared sites and medicines. Participants shared that once documented, traditional knowledge is held in the community, and shared as needed through non-disclosure agreements to protect the information.

The Panel heard about the capacity challenges faced by First Nations, tribal councils, and political territorial organizations that limit their participation in the EA process. The Panel heard that funding provided through the participant funding program is inadequate. It was identified that due to recent funding cuts, tribal councils no longer have core funding and cannot adequately support their communities by providing technical expertise to participate in EAs. Further, they now have to compete with First Nations for grants and funding, and cater their activities to government priorities. It was identified that fully funding tribal councils and political territorial organizations would help improve capacity building in First Nations to participate in EA processes. It was noted that this support would not relinquish the duty to consult First Nations themselves. The Panel also heard that funding community liaison staff for each project could be used as a mechanism to support Indigenous involvement in decision-making.

Participants identified that a constraint to capacity building in communities is the two year Chief and Council election cycle, which prevents land and resource use staff to fully realize plans and programs. They recommended removing this requirement under the Indian Act.

The Panel heard that UNDRIP needs to be incorporated into CEAA 2012. It was identified that implementing the principle of free, prior, and informed consent would result in more substantial participation of First Nations in the process. As part of the implementation of UNDRIP, traditional laws and frameworks should be recognized. First Nations, funded by the Crown and the proponent, could prepare their own impact statement, and have decision making power in all steps of the process. The Panel also heard that a holistic EA process may be used to support reconciliation efforts.

The Panel received a framework for Aboriginal involvement in EA, which was premised on acceptance of Aboriginal rights (not just recognition), a comprehensive program, meaningful participation and mutual benefit. It was explained that the framework was flexible, and in order to ensure collaboration with First Nations the EA process must be adapted for each community’s needs and capacity.

Participants shared that Impacts Benefit Agreements are usually confidential. They identified that making this information public would allow other First Nations to be aware of the benefits that they could receive, and ensure that they are long lasting beyond the project lifecycle.

Planning of Environmental Assessment

Public sessions – November 14, 2016

One weakness identified in current EA processes is that projects are considered in isolation due to the absence of land use strategies to deal with larger questions such as the consideration of cumulative effects and Indigenous issues. In this context, the Panel was told that regional EAs are important and that the federal government could conduct such studies. The Panel heard that regional EAs could at least be conducted for the purpose of gathering information and potentially for decision-making, notably when major infrastructure or region-opening developments are foreseeable.

One weakness identified in current EA processes is that projects are considered in isolation due to the absence of land use strategies to deal with larger questions such as the consideration of cumulative effects and Indigenous issues. In this context, the Panel was told that regional EAs are important and that the federal government could conduct such studies. The Panel heard that regional EAs could at least be conducted for the purpose of gathering information and potentially for decision-making, notably when major infrastructure or region-opening developments are foreseeable.

The Panel heard that project EAs should consider a broader range of environmental effects including those on public health, water and watersheds, food sources, species at risk, as well as a project’s greenhouse gas emissions (both upstream and downstream).

Indigenous sessions – November 15, 2016

Participants identified the importance of assessing impacts to people during the EA process, including socio-economic, health and cultural impact assessment studies. They identified that loss of language is a key concern for remote First Nations from projects. It was recommended that First Nations are involved in developing a comprehensive plan for the studies that are required for an EA, as a method to ensure that all potential impacts are meaningfully assessed.

The Panel heard concerns about cumulative effects, and that assessments are currently weak or absent in EAs. It was recommended that cumulative effects assessments consider landscape level effects, including fragmentation.

Conduct of Environmental Assessment

Public sessions – November 14, 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.

Participants voiced that independent reviews are critical to restore public trust in EA processes. In that regard, it was suggested that an independent third party reflecting public views be responsible for providing advice to project EA decision makers. Others expressed concerns over the independence of the National Energy Board to conduct EAs and be the decision maker, due to the nature of its mandate.

Indigenous sessions – November 15, 2016

Participants identified that information requirements should not be defined by the proponent but instead be defined by Indigenous peoples, the general public, and provincial and federal governments. Independent consultants should be responsible for data collection. Indigenous peoples should be involved in all steps in the EA process.

The Panel heard that communities should complete EAs, not proponents. It was suggested that Indigenous representatives be included on Joint Review Panels. Ideally, representatives from all potentially-affected communities, federal and provincial government and the proponent would work together through the EA process, and support collaborative decision-making.

Decision and Follow-up

Public sessions – November 14, 2016

It was suggested that EA decisions should be based on a variety of information sources, including modern day western science, as well as Indigenous traditional and community knowledge.

The Panel heard many suggestions with respect to the types and quality of data needed in EAs. Some people advocated that greater involvement from the government, the public and Indigenous peoples in data collection and data maintenance is desirable to foster higher quality EAs and less suspicion over EA outcomes.

Many participants indicated that while the types and quality of data are important, the critical question is how the data is ultimately used for EA decision-making. The Panel heard that there is currently a lack of transparency in EA processes in determining whether environmental effects are significant and in determining whether significant effects are justified in the circumstances.

The Panel also heard that proponents should be required to collect data not only before and during the EA but also after the EA is done to monitor true impacts of projects and that adaptive management should be implemented as appropriate. Some argued that the government and communities should be involved in conducting monitoring and follow-up.

Indigenous sessions – November 15, 2016

The Panel heard that First Nations must be involved in decision-making because they are governments, and decisions within their territories affect their livelihood. The Panel also heard that First Nations should be involved in monitoring and follow-up, including decision-making related to this work. It was noted that First Nations understand the land and could provide invaluable insight during monitoring to identify and detect changes.

The Panel heard about the need for legal consequences for accidents and malfunctions, including financial assurance for rehabilitating areas affected. It was identified that strengthening the enforcement capabilities of CEAA 2012 may contribute to trust building.

Public Involvement

Public sessions - November 14, 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.

Public Involvement

Public sessions – November 14, 2016

The Panel heard about several issues that may prevent meaningful public involvement in EA processes such as the restricted and short time frames to provide comments which limits the depth of analyses provided. The Panel also heard that there is a perception that public participation is generally reactive and that the ends are predetermined. Concerns were also raised around the limited funding provided which restricts access to third party expertise and highlights that the public is highly disadvantaged from project proponents in terms of capacity. The suggestion was made that funding levels should be increased to enable thorough public review and that more funds should be provided when the review is extended due to additional information requests for the proponent. The Panel heard that the proponent should pay to support public participation during an EA.

The Panel heard that public involvement needs to begin at the outset when projects are designed. Public involvement should also be throughout the EA process including when the terms of reference, the environmental impact statement, and the draft EA report are prepared, as well as after the EA during the monitoring and follow-up activities. Another element that was raised is that the public should be provided with clear Information on project details so that they can understand the proposed project and associated potential impacts.

Indigenous sessions – November 15, 2016

First Nations participants identified concerns with the process used by government to scope Aboriginal consultation. They suggested that communities be involved in scoping this work, and that it not be limited to treaty areas. It was also suggested that a landscape or watershed approach could be adopted to scope consultation. Further, participants noted that off-reserve community members must also be consulted and engaged in the process.

First Nations participants identified that the timelines for consultation established under CEAA 2012 are inadequate for them to review the technical information provided. Short comment periods are scheduled without consideration of traditional hunting and harvesting periods. Communities and tribal councils identified that they receive a very high volume of consultation requests from both the federal and provincial governments and do not have the time or resources to respond to requests or meaningfully participate in those processes. Community members from remote First Nations shared examples of binders of environmental studies being dropped off in their communities for review, without any plain language information or capacity for community members to review and understand the information. It was noted that information must be translated so that elders can understand and participate in the EA process. It was suggested that there should be a requirement to orally explain the documents when they are provided. Participants also identified that the youth in communities must be included and engaged in the EA process.

The Panel heard from several communities and organizations that their consultation protocols are often not respected by proponents or provincial and federal government departments. Participants identified that proponents inaccurately represent consultation activities, and focus on logging the number of communications, rather than meaningful dialogue. It was identified that there needs to be clear guidelines and requirements for what constitutes consultation. This would include respecting community consultation protocols. Participants indicated that First Nations should have input into the consultation report, and should provide consent that the consultation requirements have been met.

Participants also identified concerns with the timelines for the EA review process itself, identifying that the government has a duty to consult Indigenous peoples on any proposed legislative changes. They cited the Mikisew Cree Case as an example of this obligation demonstrated through the courts. They also identified that First Nations should be involved in the drafting of regulations and policies. Participants also noted that engagement sessions for the EA review should be held in communities, especially in the north, and not in city hubs.

Coordination

Public sessions – November 14, 2016

The Panel heard that federal – provincial coordination is challenging for all stakeholders involved in EA processes and that there is a lot of overlap. The fact that proponents are provided with two separate sets of conditions is problematic. The Panel heard that more efficiency is needed, and that a new legislation could force provinces to come together and achieve more coordination.

Public sessions – November 14, 2016

The Panel heard that federal law should not circumvent provincial legislation. Participants noted the provincial standards for protecting cultural resources are higher than federal requirements.

Participants identified that there is a need for a legislated mechanism to allow First Nations to complete their own EAs once they have the capacity to do so. These assessments may also be completed at the political territorial level, on behalf of several First Nations.

Annex I

Public sessions – November 14, 2016

List of Presenters

  • Shannon Dodd-Smith
  • Jason MacLean
  • Karen Peterson
  • Graham Saunders, Environment North
  • Cole Atlin
  • Cheryl Chetkiewicz, Wildlife Conservation Society
  • Dale Lautner, SaskPower
  • Caroline Ducros, Canadian Nuclear Safety Commission
  • Paul Berger, Citizens United for a Sustainable Planet
  • Paul Filteau
  • Kyle Stanfield, Crestview Resource Solutions

Workshop Participants

  • There were 11 participants.

Indigenous sessions – November 15, 2016

List of Presenters

  • Roxanne Meawasige - Grand Council of Treaty #3
  • Sara Mainville - Anishinaabeg of Kabapikotawangag Resource Council, Chief Carl Tuesday – Big Grassy First Nation, Chief Kathy Kishiqueb – Ojibways of Onigaming , Chief Chris Skead - Wauzhushk Onigum First Nation
  • Karen Peterson – Karen Peterson and Associates
  • Waylon Atlookan and Harry Papah -Eabametoong First Nation
  • Alyssa Ray and Terry Bouchard - Red Rock Indian Band
  • Mark Bell - Aroland First Nation
  • Peter Archibald - Taykwa Tagamou Nation
  • Raymond Ferris
  • Clarence Natomagan
  • Jack Hicks
  • Vice Chief Edward Lerat and Cynthia Westaway, Federation of Sovereign Indigenous Nations
  • Kyle Vermette

Open Dialogue Participants

  • There were 17 participants.

Submissions Received in Thunder Bay

Title

Author

Date Posted

View Full Submission

Supporting Document for presentation in Thunder Bay, Nov. 14th, 2016 (Report "Getting it Right in Ontario's Far North")

Cheryl Chetkiewicz, Ph.D. of Wildlife Conservation Society Canada

January 09, 2017

Presentation "Initial Input to Federal EA Regulatory Review Panel Hearings" for Thunder Bay, Nov 15 2016

Aroland First Nation

January 05, 2017

Follow-up from Taykwa Tagamou Nation presentation in Thunder Bay Nov. 15th, 2016

Taykwa Tagamou Nation

January 05, 2017

Updated - Presentation "Initial Input to Federal EA Regulatory Review Panel Hearings" for Thunder Bay, Nov 15 2016

Aroland First Nation

December 23, 2016

Presentation "Initial Input to Federal EA Regulatory Review Panel Hearings" for Thunder Bay, Nov 15 2016

Taykwa Tagamou Nation

December 08, 2016

Presentation "Review of Environmental Assessment Processes” for Thunder Bay, Nov 15 2016

Red Rock Indian Band

December 08, 2016

Presentation "The land belongs to the Creator, and the People belong to the Land” for Thunder Bay, Nov 15 2016

Eabametoong First Nation

December 08, 2016

Presentation "Federal Environmental Assessment Review - The Aboriginal/Canadian Context” for Thunder Bay, Nov 15 2016

Karen A. Peterson, PhD

December 08, 2016

Presentation "PRESENTATION TO THE EXPERT PANEL FOR THE REVIEW OF FEDERAL REGULATORY PROCESSES” for Thunder Bay, Nov 15 2016

Grand Council Treaty #3

December 08, 2016

Submission "Improving Environmental Impact Assessment: A Case Study from Ontario’s Far North” for Thunder Bay, Nov 14, 2016

Cheryl Chetkiewicz, Ph.D. of Wildlife Conservation Society Canada

December 08, 2016

Presentation "Potential Governance Models for Strategic Assessment” for Thunder Bay, Nov 14, 2016

Cole Atlin

December 08, 2016

Presentation "Review of environmental and regulatory processes to restore public trust” for Thunder Bay, Nov 14, 2016

Environment North

December 08, 2016

Presentation "Federal Environmental Assessment Review Key Considerations" for Thunder Bay, Nov 14, 2016

Environment North

December 08, 2016

Submission "Canada’s current environmental assessment law: a tear-down not a reno" for Thunder Bay, Nov 14, 2016

Jason MacLean

December 08, 2016

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