Government of Canada

 

Back Winnipeg, MB

The Expert Panel for the review of environmental assessment (EA) processes met in Winnipeg on November 16-17, 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 16, 2016

The Panel heard that the Canadian Environmental Assessment Act, 2012 (CEAA 2012) strikes an appropriate balance by focusing on projects likely to cause adverse effects without impairing or weakening environmental protection. It was suggested that CEAA 2012 provides industry, stakeholders and Indigenous groups with clarity of process, greater efficiency, improved timeliness and reduced duplication between federal and provincial processes and that these improvements over the previous legislation are important and should not be lost.

Over the two days in Winnipeg, the Panel heard that a key purpose of EA should be to ensure that federal policies, plans, programs, as well as decisions to approve projects, are done in a cohesive way to meet the Climate goals taken in the Paris Agreement. Concerns were raised over current climate policy gaps in Canada with regard to greenhouse gas accounting and national emissions allocation between provinces. , It was suggested that these policies are required in order to develop a national energy strategy and to assess individual projects adequately against climate goals. The Panel also heard that no high emission project should be approved or even go through an EA process until climate policies are implemented.

Indigenous session – November 17, 2016

The Panel was told that current EA processes fail to protect Mother Earth. Participants explained that this was not just a problem for Indigenous peoples, but for all people, and that the involvement of Indigenous peoples is integral to restoring environmental protections.

The Panel heard that current EA processes perpetuate colonialism in Canada. Participants explained that the concept of EA is a western science concept, insofar as it purports to measure and assess changes in the environment in a way that is incongruent with Indigenous worldviews. The Panel was told that there is a systematic devaluing of Indigenous voices, knowledge, worldviews, and laws in EA processes. Participants explained that racism, including within government institutions, negatively impacts their participation in EA processes.

Participants also shared their concerns regarding the Expert Panel’s Review of Environmental Assessment Processes. Participants were of the view that the process was inflexible and unaccommodating to requests from communities to share their knowledge with the Panel in alternative, more culturally appropriate means, such as enabling presentations in Indigenous languages and going to Indigenous communities. Participants also identified a lack of relationship building opportunities that could build trust in the process.

OVERARCHING INDIGENOUS CONSIDERATIONS

Public sessions – November 16, 2016

The Panel heard that broad and long term agreements between first nation communities and project proponents, such as Impact and Benefit Agreements (IBAs), can be one mechanism used to obtain free, prior, and informed consent from First Nations. Participants indicated that information in IBAs should however be disclosed including who is consenting to the project (e.g., the tribal council or the community).

The Panel also heard that, in order to obtain free, prior, and informed consent, long term relationships with First Nations are required, starting before the project is designed and continuing long after the project is implemented. It was suggested that one per cent of project costs be provided to address First Nations’ capacity challenges.

The Panel heard that it is not appropriate for governments to offload to proponents their responsibilities towards First Nations. The Panel heard that it is the responsibility of the government to take position on impacts on rights and to ensure that the principles of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) are implemented.

Indigenous sessions - November 17, 2016

Participants spoke about the importance of recognizing Indigenous law as distinct and equal to Canadian law. In this regard, participants noted that Indigenous law should be considered alongside rather than integrated into EA legislation, with equal decision making authority. The Panel heard that the notion of implementing UNDRIP solely within the context of Canadian law is contradictory, as the principles of UNDRIP cannot be upheld where Indigenous law is not respected. Participants explained that Canadian laws are not neutral, insofar as they are the result of and perpetuate colonialism, and that presumed neutrality of Canadian EA law makes it impossible for Indigenous peoples to meaningfully participate.

The Panel heard that the implementation of UNDRIP must take into account the uniqueness of individual Indigenous groups, communities, and nations. Participants reminded the Panel of the risks of assuming that all Indigenous people are the same and have the same interests, noting that true nation to nation relationships and decision making must take into account specific circumstances and needs.

Participants noted that Indigenous peoples’ free, prior, and informed consent should be an integral part of EA decision making. Early involvement in development planning, rather than being asked for consent for a pre-planned project, was identified as an important component of free, prior, and informed consent.

The Panel heard about the importance of Aboriginal and Treaty rights. Participants noted the treaties to which they are signatories and reminded the Panel of the Crown’s Treaty obligations. It was noted that Indigenous peoples did not cede or surrender their resources, but agreed to share the land to the depth of a plough. On this matter, the Panel heard about the ways in which development impacts Aboriginal and Treaty rights, including hunting, fishing, trapping, and gathering. The Panel heard that Aboriginal and Treaty rights must be considered through EA processes, but where EA processes are not sufficient to address impacts to rights the Crown must find other means by which to uphold constitutionally protected rights. Participants noted that the Crown has a duty to consult and accommodate these impacts and that EA processes are inadequate to meet these requirements and fulfill Crown obligations. Revenue sharing was identified as one of many possible means of accommodation.

The Panel heard about the importance of Indigenous traditional knowledge in informing EAs and that significant efforts and learning must be undertaken to remove barriers to the meaningful consideration of this knowledge. Differences in Indigenous and western worldviews of what constitutes knowledge must be understood and reconciled. Participants explained the importance of ceremony, noting that ceremony is not simply a sharing of culture but is an inextricable part of Indigenous knowledge and law.

PLANNING OF ENVIRONMENTAL ASSESSMENT

Public sessions – November 16, 2016

Industry members suggested that greater use of strategic EA is desirable to determine what kinds of projects should go forward. They indicated that strategic EA would provide more certainty to project proponents and prevent policy decisions being made at the project level. In their opinion, the use of this tool would eliminate projects that do not fit within the framework of what the country wants and needs.

Participants also advocated for greater use of regional EAs as a means to fill current gaps inherent to the Canadian Environmental Assessment Act 2012 (CEAA 2012), notably when it comes to addressing modern-day environmental threats and impacts, particularly those that are cumulative in nature. The Panel heard that regional EAs would be of particular interest in large undeveloped territories such as in Northern Canada where more information and data are needed to plan the development of individual projects.

The Panel heard that an EA should be conducted when a proposed project, law or policy has the potential to impact the environment and the people that have economic, social, cultural, historical connection to those environmental elements. The Panel also heard that the scope of effects to be considered in project EAs should be expanded to consider positive and adverse long-term socio-economic and environmental effects. Finally, the Panel heard that a project EA should occur as early as possible at the conceptual stage of projects, perhaps in parallel with project feasibility studies.

Indigenous sessions - November 17, 2016

Participants raised concerns regarding projects that do not undergo EA, noting that where there is no requirement for an EA the Crown does not consult or take into account the potential impacts to rights. Participants explained that small projects result in cumulative impacts over time and need to be given consideration. Further, participants spoke about their experiences with the impacts that can occur when potential effects are not assessed and Indigenous peoples are not engaged. For example, participants explained the social, cultural, and ecological effects of water diversion projects throughout Manitoba that include the displacement of entire communities and subsequent erosion of community relationships and wellbeing, adverse physical and mental health effects, and negative effects to water quality and use of aquatic ecosystem resources. The Panel was advised that the Crown should not leave it up to proponents to consult and to protect Aboriginal and Treaty rights in cases where EAs are not required.

The Panel heard about what should be considered within the scope of EAs, including alternatives to proposed projects, social and cultural impacts, and landscape level effects. Participants explained that there is a need for improved baseline information to inform the assessment of biophysical and social effects.

CONDUCT OF ENVIRONMENTAL ASSESSMENT

Public sessions – November 16, 2016

The Panel heard that the National Energy Board (NEB) and the Canadian Nuclear Safety Commission (CNSC) should not be responsible for conducting EAs. Participants indicated that EAs should be conducted by an overriding and independent institution.

Indigenous sessions - November 17, 2016

The Panel was told that Indigenous land use planning could and should inform regional and project EA. In this regard, both Indigenous traditional knowledge as well as other expertise brought forth by Indigenous groups to further support their positions must be heard and considered by decision makers.

DECISION AND FOLLOW-UP

Public sessions – November 16, 2016

The Panel heard that Indigenous traditional knowledge and community knowledge are important sources of information to be considered in EAs. Some suggested that these sources of knowledge be given equal weight to western scientific knowledge in assessing project’s impacts.

The Panel also heard that responsible authorities should be provided with sufficient time and financial means to obtain independent reviews of work from external scientists that fill gaps or provide alternatives to science delivered by proponents. Participants indicated that strengthening internal government scientific capacity is another crucial element to ensure decisions are based on the best available scientific information.

Different views were expressed with respect to the EA decision making process. Some argued that EA decisions should be made by an independent unbiased body comprised of a variety of individuals with different perspectives. It was also mentioned that decisions could be made by a federal-provincial bipartite committee and that the NEB and CNSC should not have the power to make EA decisions.

That Panel heard that both the proponent and the government should be involved in monitoring and follow up activities. Some participants indicated that communities should be involved in the development of the proponent’s monitoring programs as well as in subsequent monitoring activities. Others suggested that community monitoring should be conducted independently from the proponent. The Panel also heard that the government should ensure that monitoring and follow up requirements are made public and that adaptive management practices are implemented if appropriate, or that EA decisions be amended to avoid significant adverse environmental effects.

Indigenous sessions - November 17, 2016

The Panel was told that Indigenous governments should have decision making authority in EAs, through the upholding and respecting of Indigenous laws. Participants indicated that Indigenous expertise and input must be meaningfully considered in EA processes, which includes not just being heard but also being able to impact projects and decisions. Participants explained that the information shared during EA processes must be used in a manner that is respectful of the community that shared it.

Participants emphasized that Indigenous traditional knowledge should be given equal weight to western science and considered early on in the process, rather than simply gathered through consultation and presented as an afterthought.

Participants raised concerns with a lack of monitoring and enforcement, noting that it is too easy for proponents to simply not comply with the conditions in EA decisions. The Panel heard that there could be a role for Indigenous peoples to undertake monitoring initiatives, but that the onus should be on the government to make sure the conditions of its approvals were being met.

PUBLIC INVOLVEMENT

Public sessions – November 16, 2016

The Panel heard that community engagement is about building long term relationships and that it means public participation should not only be ongoing throughout the entire EA process but also be maintained throughout the life-cycle of the project.

The Panel also heard that existing barriers to meaningful public participation must be addressed; for instance those related to capacity and accessibility challenges such as funding, time to review documentation, as well as providing clear information on project goals and impacts.

Indigenous sessions - November 17, 2016

Participants expressed the need for early and ongoing engagement of Indigenous peoples, from the project concept phase through to approval and monitoring and enforcement.

Capacity concerns were raised with the Panel. These include limited funding, especially for communities that lack the in-house technical expertise necessary to review, understand, and respond to EA studies, and insufficient time to meaningfully engage. Further, it was noted that there is disparity in the treatment of Indigenous groups or nations, and that those with especially limited capacity are often less heard than others, despite potentially being impacted.

COORDINATION

Public sessions – November 16, 2016

The Panel heard about the lack of coordination and cooperation between the federal and provincial governments. The Panel heard that both levels of government must work together instead of separately whether it is through the conduct of regional EAs or at the project EA level, notably when EA conditions are established and provided to proponents. It was suggested that harmonization of EA processes is the most reasonable approach considering that both jurisdictions have their own areas of expertise and powers over the environment.

Indigenous sessions - November 17, 2016

Participants explained that Indigenous peoples’ inherent jurisdiction must be respected in EA processes and that Indigenous laws must be considered alongside federal EA legislation. Processes required by Indigenous peoples to inform their EA decisions and free, prior, and informed consent, would not be duplicative of federal processes, but should be given equal weight and space.

Annex I

Public sessions – November 16, 2016

List of Presenters

  • Patricia Fitzpatrick, University of Winnipeg
  • Brett Andronak, Manitoba University
  • Somia Sadiq, Manitoba University
  • Martha Jo Willard
  • Morrissa Boerchers, Manitoba University
  • Doug Tingey, Council of Canadians
  • Robert Bettner, Manitoba Hydro
  • Dennis Leneveu
  • Alexander Paterson, Manitoba Energy Justice
  • Justina Ray
  • Gloria Desorcy, Consumers Canada
  • Eric Reder
  • Sheryl Rosenberg

Workshop Participants

  • There were approximately 45 participants.

Indigenous sessions – November 17, 2016

  • Grand Chief Derik Nepinak, Assembly of Manitoba Chiefs
  • Chief Ira McArthur,Pheasant Rump Nakota Nation
  • Daryl Redsky, Shoal Lake No. 40 First Nation
  • Ernest Jameson, Ochiichagwe'Babigo'Ining Ojibway Nation
  • Diana Traverse
  • Mike Sutherland, Peguis First Nation
  • Joanne Petiquan-Moore, Wabauskang First Nation
  • Michael Jerch, Southern Chiefs Organization
  • Charlie Nelson, Southern Chiefs Organization
  • Myrle Ballard, Southern Chiefs Organization
  • Moses Okimaw, Manto Sipi (Gods River First Nation)
  • Daniel Green

Open Dialogue Participants

  • There were 6 participants.

Submissions Received in Winnipeg

Title

Author

Date Posted

View Full Submission

Southern Chiefs' Organization : Review Panel

Southern Chiefs' Organization

February 13, 2017

Southern Chiefs' Organization : CEAA Review

Southern Chiefs' Organization

February 13, 2017

Presentation "public participation in environmental impact assessment follow-up and monitoring" for Winnipeg, Nov. 16th 2016

Brett Andronak

January 05, 2017

Speaking notes for Presentation by Ochiichagwe’Babigo’Ining Ojibway Nation in Winnipeg, Nov. 17th, 2016

Ochiichagwe’Babigo’Ining Ojibway Nation

January 05, 2017

Speaking notes for presentation by Pheasant Rump Nakota First Nation in Winnipeg, Nov. 17th 2016

Pheasant Rump Nakota First Nation

January 05, 2017

Presentation "Mining for Sustainability: Mining Legacy Effects and Environmental Assessment in Canada" for Winnipeg, Nov. 16th, 2016

Morrissa Boerchers

January 05, 2017

Submission "Constitutional Division of Powers" for Winnipeg, Nov 16 2016

Sheryl A. Rosenberg

December 08, 2016

Speaking notes for presentation "Presentation to Expert Panel" for Winnipeg, Nov 16 2016

Sheryl A. Rosenberg

December 08, 2016

Speaking notes for presentation "Oral Presentation to the Federal Expert Panel Reviewing Environmental Assessment" for Winnipeg, Nov 16 2016

Eric Reder

December 08, 2016

Submission "The Contribution of Science to Environmental Assessment: Considerations for the CEAA Review" for Winnipeg, Nov 16 2016

Justina C. Ray, Ph.D. of Wildlife Conservation Society Canada

December 08, 2016

Presentation "Manitoba Hydro Presentation to CEAA" for Winnipeg, Nov 16 2016

Manitoba Hydro

December 08, 2016

Submission "Mining Legacies and EA" for Winnipeg, Nov 16 2016

Morrissa Boerchers

December 08, 2016

Presentation "FPIC in EA" for Winnipeg, Nov 16 2016

Somia Sadiq

December 08, 2016

Presentation "Elements of strong federal EA" for Winnipeg, Nov 16 2016

Patricia Fitzpatrick

December 08, 2016

Submission "Building better federal EA" for Winnipeg, Nov 16 2016

Patricia Fitzpatrick

December 08, 2016

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