Government of Canada

 

Back Edmonton, AB

The Expert Panel for the review of environmental assessment (EA) processes met in Edmonton on September 26-27, 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 - September 26, 2016

The Panel heard from some participants that the Canadian Environmental Assessment Act, 2012 (CEAA 2012) is generally working well and that no substantive changes are required to improve its processes. Others expressed that they witnessed a regression since the introduction of CEAA 2012 and were of the opinion that EA processes needed a complete overhaul.

With respect to the outcomes that EA processes should achieve in the future, participants mentioned that the goal of an EA should not be to enable development but to protect the environment and gain public trust. Some participants also voiced that EA should not be about mitigating environmental effects but making a net contribution to sustainability; that is, reaching a balance between economic, social and environmental factors with trade-off rules and net benefits.

The Panel also heard about the federal government commitment to reduce emissions and the need to incorporate climate change in EA. It was noted that while it may be challenging to consider emissions in project EA, it was still important to incorporate in decision-making. For projects that would contribute to overall emissions, it was suggested that the government ask itself if it is willing to assign a percentage of their target emissions to that project.

It was also mentioned that risk is inherent in the process. To help with uncertainty, it was suggested that we make more use of regional and strategic planning.

Overarching Indigenous Considerations

Public sessions - September 26, 2016

Participants expressed concerns over the relationship between the government of Canada and First Nations and the challenges around Indigenous rights and the inequalities that results from resource extraction. They suggested that consultations should remain with the Crown and that mitigation and accommodation needs to be more effective in protecting Aboriginal rights. With regards to the United Nations Declaration on the Rights of Indigenous Peoples, participants believed that it should be integrated into EA and that a project should not go forward if there is no consent. The Panel also heard a suggestion that Nation to Nation agreements be developed to form the foundation of the EA process. Other suggestions included sharing the benefits of resource development with affected Indigenous groups and the co-management of land with Indigenous people. Concerns were also raised that Indigenous traditional knowledge was not as readily accepted as western science. Participants suggested that this type of knowledge be recognized and used early in the process and throughout the project.

Indigenous sessions - September 27, 2016

Participants spoke to the importance of traditional knowledge and the need for recognised Indigenous education. The Panel heard about how Indigenous education had been outlawed and the need to bring this education back into practice, for the mutual benefits of Indigenous and non-Indigenous peoples. With respect to traditional knowledge, participants identified the need for adequate knowledge translation, bridging the values and information shared by knowledge holders and the information requirements of the assessment, so that the expertise shared by Indigenous peoples in EAs could be meaningfully considered and reflected in outcomes. Presenters suggested that to bridge the disconnect between western science and traditional knowledge, traditional knowledge should be used to inform which studies are undertaken. In this case, traditional knowledge and traditional use studies would occur prior to western science studies, so as to guide further assessment. This would help ensure western science studies were not designed to cater only to specific outcomes desired by proponents, which would result in increased trust in the assessment process.

The Panel heard about the importance of upholding the treaties and respecting commitments to Indigenous rights. Participants presented that a healthy environment is part of upholding treaty obligations. The Panel was told that treaty rights are interpreted too narrowly in EA contexts and that the measure of current use employed today is inappropriate. Presenters spoke to the importance of the Crown meeting its duty to consult throughout EA processes.

The use of traditional knowledge in EA was also identified as being related to upholding the principles of the United Nations Declaration on the Rights of Indigenous Peoples. In discussing these principles, participants described free, prior, and informed consent as having an ability to examine what is being considered, having the capacity and access to expertise to understand potential impacts, and having mechanisms through which consent can be given or withheld. It was acknowledged that the principle of free, prior, and informed consent leaves room for interpretation.

Planning of Environmental Assessment

Public sessions - September 26, 2016

Numerous views were received by the Panel on when a federal EA should be required. Some supported the current processes under CEAA 2012 where EAs focus solely on federal jurisdiction when there is potential for significant adverse effects. For example, some participants agreed with the focus of federal EAs on major development projects. It was also noted that the project list be reviewed to capture projects that may impact areas of federal responsibility. Others requested that an EA also be required when rights of First Nations or another nation is impacted, when there are cumulative effects, when there are no other existing process and for all major developments such as in-situ oils sands projects. The Panel also heard the need to have more clarity on when a project should be referred to a review panel. With respect to the scope of an EA, the Panel heard many factors that participants believed should be considered, including economic, environmental, health, social, cultural and aesthetic considerations, greenhouse gas emissions, cumulative impacts and alternatives to a project.

It was also mentioned that regional EAs and strategic EAs are useful to inform project-based EA and that the federal government should have a stronger role in the conduct of those EAs. Some voiced concerns over tensions between project-based EA and cumulative effects and suggested that cumulative effects be assessed at a regional level.

Indigenous sessions - September 27, 2016

The Panel heard about the importance of considering the environment in a holistic manner that recognises interconnections between environmental effects and acknowledges the spirit of the land and everything that is alive and grows. Project-specific examples of interconnections between bio-physical and cultural effects were provided, such as changes to water resulting in impacts to the use of fish for ceremonial purposes. Participants spoke about the cumulative environmental effects and cultural impacts experienced by their communities. Presenters also expressed concerns for transboundary effects, noting that projects not on their reserves or traditional territories may still have negative effects on these areas. The continued acceptance and approval of these effects was described as environmental racism, as the effects on Indigenous peoples would not be tolerated were they to impact other Canadians. Participants explained their communities are not anti-development but do want all environmental, social, economic, and cultural effects of development to be meaningfully considered and addressed.

Presenters emphasized the importance of properly conducting cultural impact assessments and identified several areas for improvement. Participants explained that cultural site visits currently conducted by government or industry are not sufficient, and that the correct elders, community members, and/or knowledge holders must be engaged prior to project approvals to identify where potential cultural impacts could occur. It was explained that bio-physical effects should not be used as proxies for cultural impacts; for example, the effect of a project on a given species of wildlife, would not necessarily be the same as the effect of a project on hunting that species, or the effect of a project on Indigenous culture due to effects on that species. The Panel heard that areas of cultural interest to Indigenous peoples are interconnected and more than simply dots on a map. It was explained that community members may not always wish to explain the “why” behind the need to protect a certain area and that these areas should be protected nonetheless.

Conduct of Environmental Assessment

Public sessions - September 19, 2016

There were competing views shared by participants regarding who should be responsible for conducting EAs. Some supported the principle of ‘’one project, one review, by the best placed regulator’’ and believed that the current responsible authorities under CEAA 2012 were appropriate. Others stated that the Canadian Nuclear Safety Commission and the National Energy Board were not adequate responsible authorities and that only one entity should be responsible to conduct EAs. Concerns were also raised over the difference in processes between each responsible authority and suggested that processes be made more consistent.

Participants also commented on the timeliness and comprehensiveness of EAs. They noted the need for EAs to be credible; which could be achieved with the best available information that is technical and defensible but pointed out that mandatory timelines impedes assessment rigour.

The Panel also heard suggestions on how EA processes could be improved, including by standardizing processes, enhancing capacity of federal expertise, and engaging industry at a strategic level to help set better practices.

Indigenous sessions - September 27, 2016

Concerns were raised regarding the information presented in EAs, such as the lack of peer review, proponent funded studies, and use of obsolete models. The Panel heard that those involved with EAs, in government and in industry, had limited staff with the necessary technical expertise and experience with Indigenous education and meaningful consideration and representation of traditional knowledge. With respect to mitigation, concerns were raised that information gaps are currently accepted and that plans (such as construction, environment, and management plans) that have not yet been developed or reviewed are used as mitigation measures and conditions in decision statements. Participants noted this was not in keeping with the rigorous application of scientific methods in the assessment of effects.

Additionally, it was stated that while collecting traditional land use information outside of EA processes has benefits to both Indigenous groups and the quality of future reviews, the costs associated with gathering traditional land use information can be prohibitive.

Decision and Follow-up

Public sessions - September 26, 2016

The Panel heard of numerous types and sources of information that participants believed should be used to inform EA decisions such as science by proponents and third parties, traditional and community knowledge, land use studies and regional cumulative effects studies. While some participants believed science should be the focus of EAs, others warned that not recognizing and giving enough credence to traditional and community knowledge contributes to the lack of trust in EAs.

With regards to the decision-making process, some participants were of the opinion that the current decision-making process by the responsible authorities and Cabinet were adequate. Others suggested that the decision-maker be independent and free from political interference. In general, participants were of the opinion that EA decisions needed to be more transparent with a clear rationale that is understandable by all stakeholders. Some participants also suggested that affected communities be given the ability to reject a project. The Panel also heard about the possibility of having a mechanism to appeal EA decisions. However, some participants thought that once a project is approved, it should be able to move forward.

Concerns were raised with the reliance on and misuse of adaptive management when credible mitigations are not identified. It was explained that projects without credible mitigations still get approvals because proponents say they will learn by doing. The Panel heard that this is reckless and not consistent with good EA practices when it is applied too often and for too many issues in an EA. The Panel heard that there is a need to have much stronger demonstrated performance and more accountability. Participants were of the view that comprehensive, high quality and ongoing monitoring is essential for follow-up programs and that compliance and enforcement is needed for EAs to be effective. Some participants believed the proponent should conduct follow-up and monitoring; while others suggested it be the federal government or an independent body. Some participants also suggested that having First Nations and community-based monitoring would help build trust. For compliance and enforcement, participants either supported the continued role of the federal government or suggested the establishment of an independent enforcer. The Panel also heard a suggestion that CEAA 2012 be expanded to provide decision-makers with the authority to amend or revoke decisions when follow-up demonstrates that predictions were not accurate.

Indigenous sessions - September 27, 2016

Participants communicated the need for Indigenous peoples to have decision-making powers with respect to projects undergoing EAs. Further, the Panel heard that the input provided by Indigenous peoples throughout EA processes should be reflected in the decisions. The Panel heard of frustrations with a lack of transparency in how EA decisions are made and with the extent to which participants’ input was considered. A lack of trust in the process and resulting decisions was identified as a challenge, and increased incorporation of Indigenous peoples’ expertise and interests into decisions was put forward as a possible means of repairing this lack of trust.

Inadequacies in monitoring and follow-up were identified as concerns with current EA processes. Participants described monitoring of project effects as biased and ignoring both the knowledge and the interests of Indigenous peoples. Opportunities for Indigenous community members to participate in surveys, research, and monitoring were suggested, both as a means of improving monitoring programs and also simultaneously as offering economic benefits through employment opportunities. Further, the Panel heard that adequate follow-up and monitoring is essential to minimizing environmental harms and to ensuring that promised benefits or accommodations are received.

Public Involvement

Public sessions - September 26, 2016

The Panel heard concerns regarding limited capacity. People expressed that they wanted sufficient time to review information and an opportunity to test that information as well. Participants expressed that EA processes and trust in their outcomes could be improved by appropriate engagement. EAs should be more transparent, and information should be provided in a timely manner. In addition, more education is needed to increase understanding of projects and their effects. The Panel also heard that participants and Indigenous groups want to be engaged throughout the EA process, particularly early on at the project’s design stage. According to participants, early engagement would lead to better planning and better projects. It was also raised that proponents do not engage Indigenous groups appropriately and that the federal government should take a stronger role in that regard.

Indigenous sessions - September 27, 2016

Limited capacity to participate in EAs was identified by participants as a concern. Participants offered some examples of positive experiences with direct engagement with industry, but noted that governments’ requirements of industry with regards to Indigenous engagement are not sufficient and that governments ought to also consult and provide resources for consultation.

Coordination

Public sessions - September 26, 2016

Some participants voiced concerns over the substitution and equivalency provision under CEAA 2012. They believe the federal government should stop downloading the responsibility of EAs to the provinces as their processes are not always efficient. For example, participants noted limited public participation and lack of opportunity to cross-examine information in provincial EA processes. Some proposed that federal and provincial jurisdictions conduct EAs jointly. Others suggested we move instead towards harmonization; whereby the most effective process is followed.

Indigenous sessions - September 27, 2016

Participants spoke to harmonization of federal and provincial EA process through the identification of Alberta-focused challenges. Participants identified the Alberta process as overly pro-development and Alberta’s consultation policy as inadequate, including its lack of recognition and consultation requirements with Métis people. Additionally, participants noted that many of the developments affecting their communities in Alberta are not covered under current federal EA legislation, such as in-situ oil sands developments.

Annex I

Public sessions - September 19, 2016

List of Presenters

  • Jason Unger, Environmental Law Center
  • Melissa Gorrie, Ecojustice
  • Diane Connors, Council of Canadians
  • Anna Johnston, West Coast Environmental Law
  • Dean O'Gorman
  • Simon Dyer, Pembina Institute
  • Cynthia Bertolin

Workshop Participants

  • There were 26 participants.

Indigenous sessions - September 20, 2016

List of Presenters

  • Chief Jim O’Chiese, Foothills Ojibway First Nation
  • Tyler Fetch, Métis Nation of Alberta
  • Norine Saddleback, Louis Bull Tribe
  • Matthew Munson
  • Carolyn Buffalo, Yellowhead Tribal Council
  • Harvey Scott, Keepers of the Athabasca Watershed Alliance

Open Dialogue Participants

  • There were 7 participants.

Submissions Received in Edmonton

Title

Author

Date Received

View Full Submission

Submission and Presentation "Environmental Assessment and Water Protection" for Edmonton September 26

Council of Canadians - Emma Lui and Diane Connors

October 24, 2016

Presentation "Pathway to Next-Generation Environmental Assessment Building an environmental legacy " for Edmonton September 26th 2016

West Coast Environmental Law

October 19, 2016

Presentation "Expert Panel: Review of Environmental Assessment Processes Pembina Institute Perspective" for Edmonton September 26th 2016

Pembina Institute

October 19, 2016

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