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The Expert Panel for the review of environmental assessment (EA) processes met in Toronto November 9 – 10, 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 9, 2016

Over the two days in Toronto, the Panel heard that EA processes should provide clear, transparent and informed decisions that contribute to genuine environmental protection. Many identified the need for a sustainability-based assessment approach to EA that gets at the issues most important to people. The Panel heard that streamlining EAs has not been working and has resulted in a high level of uncertainty and conflict over the distribution of risks and benefits of a project. A sustainability approach would provide greater clarity in process and objectives for proponents, as well as other interested peoples. The Panel also heard that EA should take an ecosystem approach, focusing on sustainability and precaution. The assessment should be a lifecycle analysis and consider climate change impacts, both upstream and downstream, worst-case scenarios for accidents and malfunctions and the best possible alternatives.

The Panel also heard that a sustainability-based assessment process should be informed by strategic-level assessments using a tiered approach and that a key element of this process would be the consideration of alternatives. The Panel heard that the requirement for strategic EAs should be legislated. It was also mentioned that where policy issues arise in EAs, these issues should be raised with the government to be addressed at a strategic level. Once a new policy is set, it should then inform future project level assessments. These strategic assessments should be done by a body that is arm’s length from government.

Indigenous sessions – November 10, 2016

Participants expressed that they have a low level of trust in the current federal EA process. They identified that trust is a function of genuine involvement, feeling heard, and the quality and accessibility of data. They also identified that this trust rating is based on the low level of projects that require a federal assessment under the Canadian Environmental Assessment Act, 2012, and because decision making is held by Cabinet. Participants expressed that if completed in the spirit it was originally intended, EA can be an important and meaningful process. Participants identified that the most important outcomes of the federal EA process should be to render a fair and balanced decision that mitigates negative impacts and enhances benefits.

It was identified that the EA process should involve treaty and rights holders in a fair and transparent way, taking into consideration issues of importance to First Nations, and giving them the power to reject projects. In addition, First Nations should be enabled to conduct land use plans within their traditional territories so they are prepared to participate in federal EA processes as needed. Participants identified that the federal EA process should be amended to emphasize engagement and consensus building on the methods used to determine what projects and impacts are acceptable.

OVERARCHING INDIGENOUS CONSIDERATIONS

Public sessions – November 9, 2016

The Panel heard that proponents start building relationships with Indigenous peoples at the concept planning phase of the project, which is much earlier than the initiation of the EA. The Panel also heard that the government should lead consultation and not delegate the duty to consult to proponents.

Indigenous sessions – November 10, 2016

It was identified that current EA timelines and capacity are barriers to meaningful Indigenous participation. Additional time is needed to engage communities to identify and understand impacts, including time to respect First Nations governance and community engagement protocols. The Panel heard that funding for Indigenous participation is a key gap in current federal EA processes. Participants also identified that the government needs capacity to take on a more proactive role in EA processes, to undertake its duty to consult, and to develop guidance. The government should not delegate or defer its responsibilities to proponents. Participants also identified the need for consistent staff funding within their communities, and to establish standing committees within First Nations to support meaningful participation.

Participants identified that in order to reflect the principles of the United Nations Declaration on the Rights of Indigenous Peoples, the EA process should include a mechanism for free, prior and informed consent, including the right to veto. Participants advocated for the implementation of the declaration as a framework to advance rights and the wellbeing of First Nations. It was also identified that the EA process should be transparent, inclusive, and incorporate consensus building. Enabling First Nations to complete their own land use plans would support the integration of the principles of the declaration into the EA process. The Panel heard a revised and augmented proposal for an Indigenous Constitutional Rights Compliance Office, initially presented in Saskatoon. This office would support the implementation of article 18 of the declaration and provide a mechanism to ensure compliance with section 35 of the constitution through the EA process. It was also noted that First Nations must be engaged at a strategic policy level to reflect article 18 of the declaration. It was recommended that a secretariat be created, with First Nations, federal, and provincial participation, to discuss how to address environmental, and land and resource management issues through policy development.

PLANNING OF ENVIRONMENTAL ASSESSMENT

Public sessions – November 9, 2016

The Panel heard that a hybrid approach could be used for determining when a federal EA should be required: a trigger based approach as well as a list of activities requiring an EA. The Panel also heard that all projects should be subject to an EA, unless a justification by the proponent is provided. It was also mentioned that the Minister should have stronger powers to compel information from proponents in order to determine if a project should be subject to an EA.

The Panel heard from some participants that there is a need for a broad inclusive scope that considers environmental, social and economic impacts, including cumulative effects. The Panel also heard that there should be a focus of the federal EA on areas of federal jurisdiction, unless effects beyond federal jurisdiction are not otherwise addressed and mitigated. Should information about the socio-economic and community health impacts be requested in the EA process, then it should be clear how it was assessed and what mitigation measures were implemented. Much of the data provided in an EA could inform a health impact assessment and would just need to be evaluated with human health in mind. Impacts on marginalized communities were also raised as an issue that should be integrated into the EA.

Indigenous sessions – November 10, 2016

The Panel heard the suggestion that their review l should include the identification of EA best practices across Canadian and international jurisdictions. Participants identified inconsistencies in information considered in EAs, and requested a clear framework that includes Indigenous input.

The Panel heard that the list of designated projects should be based on a risk management framework, which incorporates Indigenous engagement. Participants identified that the scope of projects subject to federal EA should be broadened, including reinstating and strengthening EA triggers under the Navigable Waters Protection Act and the Fisheries Act. Participants noted that the current list of designated projects fails to assess projects which result in effects to water and fish habitat. In particular, proposals to expand existing projects are not adequately assessed. Participants identified that expansions should consider all project components, including those that were built under prior regulation, and should not defer any components to future processes.

Participants identified that the scope of federal EA should be broad and must include consideration of impacts on rights, socio-economic conditions and culture, including sacred sites.

Participants noted that First Nations should be involved in the selection of valued ecosystem components. They also expressed concern with the quality of human health and ecological risk assessments being completed for projects and identified the need for stricter guidelines. The Panel heard that project level EAs do not effectively consider cumulative effects. Participants recommended a regional assessment approach to consider cumulative effects, including watershed level impacts. They also expressed that EAs should be required for policies, plans, and strategic undertakings. It was identified that there are few good examples of strategic EA in Canada, and therefore significant room for improvement. Participants identified that the Bay of Fundy tidal power strategic EA is one of the few good examples.

CONDUCT OF ENVIRONMENTAL ASSESSMENT

Public sessions – November 9, 2016

The Panel heard from many participants about the real and perceived conflict of interest concerns that arise when the regulator is also the party responsible for leading the EA. There is a need for an oversight body that ensures all EA requirements are being met, including the consideration of alternatives and human health. There needs to be clear accountability for decision makers.

The Panel heard that an independent body, or the Canadian Environmental Assessment Agency, should be the one body to conduct EAs and be a “Centre of Excellence” for EA. The body leading the EA needs to ensure a fair, objective process with a clear rationale for decisions and a justification for trade-offs made.

Indigenous sessions – November 10, 2016

Participants identified that Indigenous peoples should be fully involved in each stage in the EA process including scoping, data collection, review of studies and decision making. It was stated that Indigenous peoples should be resourced to support this involvement and recognized as keepers of the land.

Participants identified that the proponent’s role should be limited to providing experts and collecting data. Participants suggested that federal government departments work more directly with the proponent on the development of the Environmental Impact Statement and be more directly involved in proponent-led engagement sessions. This approach could also be used to ensure departments are meeting the duty to consult. It was noted, however, that both federal and provincial government departments have many staff members who do not have practical EA experience. Further, participants identified that EA conclusions should not be based on expert opinion, but must be based on scientific evidence, and include acknowledgement of uncertainty in predictions and significance determinations.

The Panel heard that traditional ecological knowledge must be at the forefront of EA, and can be used to augment baseline information, especially where data may not be available. Traditional ecological knowledge must be integrated throughout the EA (scoping, effects assessment, mitigation, and monitoring), and given equal weight to western knowledge. Indigenous knowledge holders must be involved in the interpretation and integration of knowledge to ensure it is not misrepresented. Participants discussed how the level of integration of traditional knowledge is slowly evolving, and identified the North Chanel Bridge Replacement and the Herb Gray Parkway as projects that integrated traditional knowledge. It was also noted that in addition to traditional knowledge, local knowledge can also be an important information source, especially in more remote northern communities.

DECISION AND FOLLOW-UP

Public sessions – November 9, 2016

The Panel heard that the current approach to determining the significance of effects is unclear. It is easier to compare alternatives than to compare impacts of a project to a concept such as significance. There is a need for criteria around determining significance and to also define what is acceptable with regard to uncertainty.

The Panel heard from participants that EAs need to be based on credible evidence-based science and accurate information. Peer reviewed material, community knowledge, historical, scientific and proponent data should be used, ensuring the best available information is integrated into decision making.

The Panel heard that decision making authority should be given to an independent body conducting the EA and that Cabinet could have the power to appeal decisions, in exceptional circumstances. From other participants, the Panel heard that elected officials should be responsible for policy decisions. Technical decisions, such as project approval decisions, should be made by a body who understands the technical issues. Decisions should always be reviewable by the public, including through the court system. The Panel also heard that Indigenous and non-Indigenous communities should be provided power to influence decisions. New participatory models for decision making, such as roundtable groups or joint federal-Indigenous groups, should be explored.

The Panel heard that there is a need to learn from follow-up and monitoring results to ensure continuous improvement. There is also a need for transparency in follow-up by providing access to information. Where there is non-compliance or a question of non-compliance with enforceable conditions, those responsible for follow-up, monitoring and enforcement need to advise proponents of the non-compliance and ensure impacts are addressed. The Panel also heard that monitoring should be conducted by an independent body to ensure there is no conflict of interest or bias in the implementation.

Indigenous sessions – November 10, 2016

Participants expressed distrust in the decision making process, as they believe that the outcome has been decided prior to the EA process being concluded.

It was identified that the enforceability aspects of the Canadian Environmental Assessment Act, 2012 were a positive change. However, the Panel heard that the monitoring process remains unclear and is sometimes not completed. The Panel heard that Indigenous people should be involved in the monitoring phase and throughout the project lifecycle. It was recommended that commitments for monitoring, mitigation, and adaptive management should be clearly defined for each project. This process must include a mechanism for integrating traditional knowledge into monitoring, mitigation and adaptive management, as well as sharing monitoring results with and engaging Indigenous groups on any changes to the project design following EA approval. The Ontario Power Generation Lower Matagami Project was identified as an example for integrating traditional knowledge in monitoring and follow-up programs. It was also recommended that a robust tracking system for project commitments be developed, and that these commitments and compliance results be made available in a publically accessible location. Adequate funding is needed to enable both government and Indigenous communities to participate in monitoring. The Panel received the recommendation to mandate funding from proponents for remediation for accidents and malfunctions, as well as environmental impacts not predicted during the EA.

PUBLIC INVOLVEMENT

Public sessions – November 9, 2016

The Panel heard that there is a need for meaningful and continuous public participation and there is a need for a clear demonstration of how comments were considered. Public participation opportunities should be required for effected communities and should: start early in the scoping phase of the process; be accessible, welcoming, and transparent; and enable the public to ask questions directly of the proponent.

The Panel heard that there is a need to ensure participant funding is adequate and that the time available for engagement is sufficient for the public to provide meaningful input. Multiple formats for engagement, such as roundtables and town halls, would also enable broader participation.

Indigenous sessions – November 10, 2016

The Panel heard concerns with the timelines for the EA review. Participants noted that in order for consultation to be done properly it must not be rushed.

Participants asked the Panel to consider the role of dialogue in Indigenous, public and stakeholder participation, and to identify objective standards for engagement. It was also identified that mediation should be encouraged early in the process, as a mechanism to resolve disputes.

Participants expressed the need for robust engagement guidelines that highlight the integral importance of engagement to the EA process. They noted challenges with working with proponents who do not realize the needs and requirements for a complete engagement program. It was also suggested that more direct involvement of government in engagement would improve the process by strengthening relationships with the communities and helping the proponent understand the requirements. Participants also shared that there is a need for transparency and confirmation of potentially affected Indigenous groups identified for each project. They expressed that the list of groups that should be consulted should consider traditional territory and the watershed within which the project occurs.

Finally, the Panel heard that plain language summaries are still too technical and lengthy to facilitate understanding.

COORDINATION

Public sessions – November 9, 2016

The Panel heard from participants about the need for a coordinated federal and provincial process that considers a broad spectrum of environmental, social and economic impacts. The Panel heard that even where there are no federal interests in a project, an option could be to have a federal process that is implemented when public concerns remain on key issues not addressed in a provincial EA process. The Panel also heard that there should be one decision on behalf of both the provincial and federal governments.

Indigenous sessions – November 10, 2016

Participants identified that in Ontario coordination between the provincial and federal EA processes is confusing and challenging for First Nations. They noted the requirement to review two separate EA documents for one project as an example. The Panel also heard that it is unacceptable for the federal government to substitute its EA process where there are impacts to federal lands, traditional and treaty lands, and Indian lands and waters.

Annex I

Public sessions – November 9, 2016

List of Presenters

  • Eugene Bourgeois
  • Kaitlyn Mitchell, Ecojustice
  • Lindsay McCallum
  • Robert Gibson
  • Jill Taylor
  • Roderick Mcleod, SOS Great Lakes
  • Marti McFadzean, Inverhuron Committee
  • Sandy Greer
  • Devika Shaw, World Wildlife Fund
  • Heather Ferguson, Ontario Power Generation
  • Ellen Dailey, Bluewater Coalition
  • Mark Winfield

Workshop Participants

  • There were 30 participants.

Indigenous sessions – November 10, 2016

List of Presenters

  • Vice Chief Edward Lerat, Cynthia Westaway, Jayme Benson, and Zachary Miloff, Federation of Sovereign Indigenous Nations
  • Mike Faries, Moose Cree First Nation
  • Trevor Hesselink, Canadian Parks and Wilderness Society Wildlands League
  • Priyanka Vittal, Greenpeace
  • Rosanne Van Schie, on behalf of Chief Lance Haymond, Kebaowek First Nation

Open Dialogue Participants

  • There were 6 participants.

Submissions Received in Toronto

Title

Author

Date Posted

View Full Submission

Speaking Notes for Eugene Bourgeois' Presentation in Toronto November 9, 2016

Eugene Bourgeois

December 29, 2016

Updated - Submission "REVIEW OF ENVIRONMENTAL ASSESSMENT PROCESSES" for Toronto, November 9, 2016

Jill Taylor, President of SOS Great Lakes

December 23, 2016

Transcript – Indigenous Presentations, Toronto Nov 10, 2016

Toronto Transcript

December 08, 2016

Transcript – Public Presentations, Toronto Nov 9, 2016

Toronto Transcript

December 08, 2016

Presentation "Environmental Assessment Follow-Up" for Toronto, November 10, 2016

CPAWS Wildlands League

December 07, 2016

Speaking Notes for Presentation "Presentation to EA Review Expert Panel" in Toronto, November 10, 2016

Mike Faries

December 07, 2016

Speaking Notes for Presentation "Review of Environmental Assessment Processes" in Toronto, November 10, 2016

Westaway Law Group

December 07, 2016

Presentation "Presentation to Expert Panel on Environmental Assessment Reform" for Toronto, November 9, 2016

Mark Winfield

December 07, 2016

Presentation "Environmental Assessment Review" for Toronto, November 9, 2016

World Wildlife Fund

December 07, 2016

Submission "WHAT IS NOT WORKING WELL AND NEEDS TO CHANGE WITH CURRENT FEDERAL ENVIRONMENT ASSESSMENT PROCESSES?" for Toronto, November 9, 2016

SOS Great Lakes

December 07, 2016

Presentation "WHAT IS NOT WORKING WELL AND NEEDS TO CHANGE WITH CURRENT FEDERAL ENVIRONMENT ASSESSMENT PROCESSES?" for Toronto, November 9, 2016

SOS Great Lakes

December 07, 2016

Submission "Critique of the Federal Environmental Assessment Process Using Example of Proposed Deep Geologic Repository for Radioactive Waste" for Toronto, November 9, 2016

Dr. Sandy Greer, PhD

December 07, 2016

Submission to EA Review Panel for Marti McFadzean for Toronto, November 9, 2016

Marti McFadzean

December 07, 2016

Presentation "REVIEW OF ENVIRONMENTAL ASSESSMENT PROCESSES" for Toronto, November 9, 2016

Jill Taylor, President of SOS Great Lakes

December 07, 2016

Supporting documents for Robert B. Gibson for Toronto, November 9, 2016

Robert B. Gibson

December 07, 2016

Submission "Key components for reform of federal environmental assessment processes" for Toronto, November 9, 2016

Robert B. Gibson

December 07, 2016

Presentation "Next generation environmental assessment at the federal level in Canada: context implications and selected specifics" for Toronto, November 9, 2016

Robert B. Gibson

December 07, 2016

Presentation "Including Health in Environmental Assessment" for Toronto, November 9, 2016

Lindsay McCallum

December 06, 2016

Submission "Ecojustice Submission to the Expert Panel on the Review of Environmental Assessment Processes" for Toronto, November 9, 2016

Ecojustice

December 06, 2016

Presentation "Recommendations" for Toronto, November 9, 2016

Eugene Bourgeois

December 06, 2016

Presentation "Presentation to the Expert Panel for the Review of Environmental Assessment Processes" for Toronto, November 9, 2016

Ontario Power Generation

December 06, 2016

Submission to EA Review Panel for Eugene Bourgeois Toronto, November 9, 2016

Eugene Bourgeois

December 06, 2016

Submission “Ecojustice Submission to the Expert Panel on the Review of Environmental Assessment Processes” for Toronto, November 9, 2016

Ecojustice

December 06, 2016

Submission “GREENPEACE” for Toronto, November 10, 2016

Greenpeace Canada

December 06, 2016

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