Suggested Themes for Discussion
The Minister of Environment and Climate Change has established an Expert Panel to conduct a review of federal environmental assessment processes in Canada.
As Chair of the Panel, I and my fellow Panel members have been mandated to consider the goals and purpose of modern-day environmental assessment. We are tasked with developing recommendations to the Minister in order to contribute to the Government of Canada's objective for the review, which is to "regain public trust and help get resources to market and introduce new, fair [environmental assessment] processes". The Terms of Reference which we have been provided outline the scope of our review, our key deliverables and our timelines.
Engagement is at the core of the review, and we are looking forward to listening to and learning from the experience and expertise of Indigenous people, provinces and territories, stakeholders, and all Canadians. Our website will post all information received during the course of our review, as well as details on our activities and how to participate. We will be providing opportunities for both online and in-person engagement, as described in our public and Indigenous engagement plans.
The purpose of this document is to introduce the Panel's suggested themes (Environmental Assessment in Context, Overarching Indigenous Considerations, Planning Environmental Assessment, Conduct of Environmental Assessment, Decision and Follow-up, Public Involvement, and Coordination) that will guide our review. It is structured to present some background information on each theme and then list proposed questions to guide participants' input into the review. The proposed questions are intended to promote discussion; however, the Panel welcomes any and all comments on environmental assessment in Canada.
For each theme, there are overarching questions which we encourage all of you to consider in your feedback. We would like your views on:
- What is working well with current federal environmental assessment processes?; and
- What is not working well and needs to change with current federal environmental assessment processes?
On behalf of my fellow Panel members, I thank you in advance for your time and your contribution to this review.
Expert Panel Chair
Environmental Assessment in Context
Recognizing the goal that decisions made by the federal government should be sustainable and in the public interest, consideration must be given to selecting planning and regulatory tools which are fair, reliable and effective. These tools should take into account three pillars: environmental, social and economic.
Environmental assessment is one such planning tool to predict environmental effects of proposed initiatives before they are carried out. When it comes to actions in Canada, there are often competing interests and different points of view. It is important that Canadians and Indigenous Peoples trust that environmental assessment processes in Canada are fair, robust, based on valid science, facts and evidence, including Indigenous traditional knowledge and will protect the environment.
Given the Government of Canada's international and national environmental and social commitments such as addressing climate change, sustainable economic growth and supporting the United Nations Declaration on the Rights of Indigenous Peoples, now is the time to ask the questions: how does, and how could, environmental assessment contribute to Canadians' and Indigenous Peoples' trust that the review process has been complete, fair, and effective, and that it aligns with these important commitments.
- Q1 - To what extent do current federal environmental assessment processes enable development in Canada that considers the environment, social matters and the economy?
- Q2 - What outcomes do you want federal environmental assessment processes to achieve in the future?
- Q3 - How can federal environmental assessments support investor certainty, community and environmental wellbeing, the use of best available technology, certainty with respect to the protection of Aboriginal and treaty rights and timely decision making?
- Q4 - How should federal environmental assessment processes address the Government of Canada's international and national environmental and social commitments, such as sustainable economic growth and addressing climate change?
Overarching Indigenous Considerations
The Government of Canada consults with Indigenous Peoples as part of the environmental assessment process for a variety of reasons, including: statutory and contractual obligations, policy and good governance, and the constitutional duty to consult. Additionally, current legislation requires the assessment of the potential for adverse effects on Aboriginal peoples' resulting from a change in the environment on land use, health and socio-economic conditions, physical and cultural heritage; and structures, sites, and things of significance.
The Government of Canada has indicated that it is seeking to renew relationships with Indigenous People in Canada and move towards reconciliation. It has also recently indicated that it fully supports the principles of the United Nations Declaration on the Rights of Indigenous Peoples.
- Q1 - How can federal environmental assessment processes better reflect and incorporate the multiple ways in which Indigenous Peoples may interact with federal environmental assessment, including as potentially affected rights holders, proponents of development, self-governing regulators, and partners?
- Q2 - How is the need to address potential impacts to potential and established Aboriginal and treaty rights best incorporated into the federal environmental assessment process?
- Q3 - What is the best way to reflect the principles of United Nations Declaration on the Rights of Indigenous Peoples, including the principles of Free, Prior and Informed Consent and the right to participate in decision-making in matters that would affect Indigenous rights, in federal environmental assessment processes?
- Q4 - What role should Indigenous traditional knowledge play in federal environmental assessments and what are some international best practices?
- Q5 - How can the practices and procedures associated with federal environmental assessments, as well as the process itself, support the Government of Canada's goal of renewing the nation-to-nation relationship with Indigenous Peoples and moving towards reconciliation?
Planning Environmental Assessment
The planning stage of environmental assessments determines whether an environmental assessment is needed, the breadth of issues to be covered, and the type of assessment required.
The emphasis of current federal environmental assessment processes is on project-specific environmental assessments. At present, major projects potentially subject to a federal environmental assessment are identified in a supporting regulation, the Regulations Designating Physical Activities. In addition, the Minister of the Environment and Climate Change may require that a project undergo an environmental assessment if she is of the opinion that it may cause adverse environmental effects or public concern.
Under existing federal legislation, project environmental assessments evaluate the adverse environmental effects likely to result from a project that are within federal jurisdiction. The foundation for all such assessments is effects on fish, migratory birds, impacts of a transboundary nature, and impacts on Aboriginal people resulting from a change in the environment. Additional effects can be assessed where a project requires a federal regulatory approval, such that the effects relevant to that approval are part of the assessment. These two perspectives define the scope of effects in current federal environmental assessments.
A federal project environmental assessment must also consider additional factors. Some key factors to consider under the current approach include: cumulative effects likely to result from the project in combination with other projects, the effects of accidents and malfunctions, mitigation measures, the significance of effects, and comments from the public.
In addition to project-specific environmental assessments, the Canadian Environmental Assessment Act, 2012 also applies to federal decisions on projects outside Canada or on federal lands inside Canada. These decisions must not be carried out unless the federal body determines that the project is not likely to cause significant adverse environmental effects or Governor in Council decides that these effects are justified.
There are also provisions that provide the Minister of the Environment and Climate Change with the authority to establish a committee to conduct a regional study to assess cumulative effects at a regional scale. Regional studies provide for a more comprehensive analysis of potential impacts in an area and help to inform future environmental assessment decisions.
Finally, under current policy and not legislation, federal government bodies conduct strategic environmental assessments on their new plans, programs or policies when the following conditions are met: the proposal is submitted to a Minister or Cabinet for approval and when the proposal may result in important positive or negative environmental effects. For example, strategic environmental assessments are conducted for international trade agreements.
- Q1 - Under what circumstances should federal environmental assessment be required?
- Q2 - For project environmental assessments, do you think the current scope and factors considered are adequate?
- Q3 - Are there other things (effects, factors, etc.) that should be scoped into an environmental assessment?
- Q4 - Under which circumstances should environmental assessment be undertaken at the regional, strategic or project-level?
- Q5 - Who should contribute to the decision of whether a federal environmental assessment is required?
Conduct of Environmental Assessment
The current federal environmental assessment legislation makes three bodies responsible for conducting project environmental assessments. These bodies, referred to as responsible authorities, are the Canadian Environmental Assessment Agency, the National Energy Board and the Canadian Nuclear Safety Commission. Each responsible authority has its own process, timelines, scoping, and transparency requirements.
A common element to all three processes is the preparation of an Environmental Impact Statement by the proponent. This document is based on scoping guidance from the responsible authority. An Environmental Impact Statement provides detailed information to assess the potential adverse effects of a proposed project and support conclusions on the significance of those effects after implementation of mitigation measures.
The public, government experts, Indigenous groups and environmental organizations provide comments on this information. The responsible authority then reviews all of the information provided, asks questions of the proponent and other participants in the process, and prepares the Environmental Assessment Report. The report includes the responsible authority's proposed mitigation measures and recommendations on the likelihood of significant adverse environmental effects.
- Q1 - Who should be responsible for conducting federal environmental assessments? Why?
- Q2 - What should be the role(s) of the proponent, Indigenous Peoples, the public, environmental organizations, experts, the government and others in the planning of, collection, analysis and review of environmental assessment-related science including community and Indigenous traditional knowledge?
- Q3 - How can environmental assessment processes be improved to ensure a timely, yet thorough process has been conducted?
Decision and Follow-Up
In the decision making phase of the current environmental assessment process, mitigation measures are taken into account prior to a decision being made on whether there is likely to be significant adverse environmental effects resulting from a project. Identified mitigation measures must be technically and economically feasible and, where appropriate, the success of their implementation can be measured in a follow-up program.
A decision on the likelihood of significant adverse environmental effects of the project is required. The Minister of Environment and Climate Change makes the decision where the Canadian Environmental Assessment Agency is the responsible authority. Cabinet makes the decision where the National Energy Board is the responsible authority. The Canadian Nuclear Safety Commission makes the decision where it is the responsible authority. For all responsible authorities the decision on whether any significant adverse effects are justified in the circumstance is made by Cabinet. If the project is approved, a decision statement or licence would be issued to the proponent including enforceable conditions.
- Q1 - What types of information should inform environmental assessment decisions?
- Q2 - What would a fair, transparent and trustworthy decision-making process look like?
- Q3 - Who should participate in the implementation of follow-up and monitoring programs and how should that participation be encouraged or mandated?
- Q4 - Are enforceable conditions the right tool to ensure that the Government of Canada is meeting its environmental assessment objectives and, if so, who should have a role in compliance and enforcement?
- Q5 - Given that environmental assessment decisions are made in the planning phase of proposed actions, how should these decisions manage scientific uncertainty?
Public participation is a part of the environmental assessment process. Ideally, it allows those with concerns or those who may be affected by a decision to be involved in the planning process and have their voices reflected in the outcome of the process. Community knowledge provided through public participation should not only help inform decisions, but may help identify potential environmental effects and may influence project design at an early stage.
Currently, the federal legislation provides several opportunities for public participation in federal project environmental assessments. The law also requires that participant funding be made available. As well, each responsible authority or panel may provide additional opportunities for the public to provide input during the environmental assessment process such as commenting on the Environmental Impact Statements prepared by the proponent. The Canadian Environmental Assessment Agency maintains an online registry to provide access to information about specific project environmental assessments. The Canadian Nuclear Safety Commission and the National Energy Board also provide opportunities for the public to participate through their hearing process.
- Q1 - What do you think meaningful, effective and inclusive participation in the environmental assessment process looks like?
- Q2 - To what extent are current opportunities for public participation in federal environmental assessment processes adequate?
- Q3 - To what extent do you feel your views are considered in environmental assessments?
- Q4 - What information do you need during an environmental assessment to allow you to effectively participate? What capacity support should be provided and at what stage in the process would that support enable meaningful engagement?
In Canada, the environment is an area of shared jurisdiction between federal and provincial governments. Both federal and provincial governments have legislated requirements for environmental management as well as for environmental assessment. Additionally, environmental assessment is covered by several comprehensive land claim and self- government agreements with First Nations across Canada.
Under the current legislation there are five ways in which project environmental assessments can be undertaken to reduce duplication and be more efficient:
- A responsible authority may delegate the carrying out of any part of the environmental assessment including the preparation of the environmental assessment report.
- The federal government and other jurisdictions may coordinate their efforts, including notifying each other when they have environmental assessment responsibilities with respect to a project and sharing information throughout the environmental assessment process.
- The legislation allows for the process of another jurisdiction to be substituted for a federal process. The federal government still requires that the same information be analysed and still makes a decision at the end of the environmental assessment.
- The legislation also allows for a provincial process to be deemed equivalent. In the case of equivalency, the provincial process is the only environmental assessment that applies and no federal decision is required.
- For projects subject to panel review, options to coordinate with another jurisdiction's environmental assessment process are also available and include the establishment of joint review panels.
- Q1 - To what extent can the Government of Canada coordinate with other jurisdictions (e.g. provincial and/or Indigenous governments) while maintaining process integrity in the conduct of federal environmental assessments?
- Q2 - To what extent is the current approach to substitution and equivalency effective?
- Q3 - Do you think duplication between the federal environmental assessment process and the environmental assessment process of other jurisdictions exists? If yes, what are ways in which duplication could most effectively be reduced while maintaining process integrity?
- Q4 - How can Indigenous Peoples' inherent jurisdiction best be reflected and respected in the federal environmental assessment process?
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