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A Review of the Review of Reviews: A Participants’ Guide to the Federal EA Review

This fall, Canadians are invited to take part in a public review of federal environmental assessment processes.
Photo: Jamie McCaffrey

In mid-September, an expert panel appointed by the federal Minister of Environment and Climate Change (the Panel) launched a public review of Canada’s environmental assessment processes (the EA Review). While the Panel and its secretariat have attempted to broadcast how the public and Indigenous groups can participate in the EA Review, many people remain either unaware of it or uncertain whether or how to be involved.

If you’re one of them, you’ve come to the right place.

In this blog, I describe the EA Review and different ways to participate in it, and conclude with recommended reforms to make Canada’s environmental decision-making fair and sustainable for communities and the environment. Near the end, there’s also a link to an online letter-writing tool you can use to submit your comments to the Panel, along with suggested reforms you may wish to recommend.

What is the EA Review?

In November, the Prime Minister mandated several Cabinet Ministers to review four of Canada’s environmental laws and processes: the Fisheries Act, Navigation Protection Act, the National Energy Board, and federal environmental assessment processes. The four reviews are being conducted independent of, but parallel to, each other, so that Cabinet can receive and consider the four sets of recommendations around the same time in early 2017, and develop a package of environmental law and policy reforms.

The EA Review was the first to launch. (The Fisheries Act and Navigation Protection Act reviews are being conducted by Parliamentary Committees this fall, while the NEB review, which will also be by expert panel, has yet to begin, reportedly because finding panel members for it has been difficult.)

The EA Review involves in-person public and Indigenous engagement across Canada, as well as opportunities for written submissions and online participation. Read more on the various ways to participate below.

What is its scope?

The Panel has a broad mandate to consider all issues related to federal environmental assessment, from its underlying purpose, to its practice, to decision-making. Its Terms of Reference direct the Panel to “consider the goals and purpose of modern-day environmental assessment,” and in particular:

  • How to restore robust oversight and thorough environmental assessments of areas under federal jurisdiction, while working with the provinces and territories to avoid duplication
  • How to ensure decisions are based on science, facts and evidence and serve the public’s interest
  • How to provide ways for Canadians to express their views and opportunities for experts to meaningfully participate
  • How to require project advocates to choose the best technologies available to reduce environmental impacts
  • How to ensure that environmental assessment legislation is amended to enhance the consultation, engagement and participatory capacity of Indigenous groups in reviewing and monitoring major resource development projects

In considering the above, the Terms of Reference also recommend that the Panel examine:

  • How environmental assessment processes are conducted under the Canadian Environmental Assessment Act, 2012, including practices and procedures, such as Indigenous engagement and consultation, public participation, the role of science and Indigenous knowledge, cumulative effects assessment and harmonization and coordination with other orders of government
  • Practices and approaches within Canada and internationally
  • Relationship between environmental assessment and other elements of the regulatory framework
  • Alignment of various jurisdictional processes

The Panel is also directed to reflect the principles of the United Nations Declaration on the Rights of Indigenous Peoples in its recommendations.

Timelines

The Panel must submit its report and recommendations to the Minister of Environment and Climate Change by January 31st, 2017.

It began its travelling roadshow on September 19th, has its last in-person engagement session in Nanaimo, BC on December 15th, and will be accepting written submissions until December 18, 2016.

How can I participate?

There are a number of different ways to have your say. There will be opportunities to participate both in person and online, and the Panel is accepting written submissions both via email and snail-mail. Each of the different types of participation options is described below, with tips on what the Panel is looking for and how you might want to frame your submissions.

In-person events

This fall, the Panel is travelling to communities across Canada to hold public and Indigenous engagement sessions to hear about what works and what doesn’t work in federal EA. The public may attend the Indigenous sessions, although priority for participation may be given to Indigenous peoples. In most communities, the Indigenous engagement sessions are the day after the public sessions.

Funding is available to help the public to travel to communities where the Panel is holding sessions, and funding was offered for Indigenous participants in August. The Panel is visiting communities in every province except PEI and will be conducting its final sessions in British Columbia in December. You can find the full calendar of sessions and information on how to register on the EA Review Panel’s website.

1. Public presentations: These are formal hearing-style sessions held during the day, where presenters have 15 minutes before the Panel: ten to present and five for questions from the Panel. You do not need to register in advance (you may do so the day of) but spots are limited so you are encouraged to register ASAP. Observers are welcome and do not have to register.

You may use visual aids such as PowerPoint presentations and images; if you submit them in advance (usually the day before is fine) the Panel’s secretariat will have them loaded and ready to go when it’s your turn to present. They provide a computer and screen, so all you need to do is email your visuals the day before, or bring them on a flash drive.

It is a good idea to submit any materials you have prepared to the Panel in advance. The Panelists are making an effort to read submissions as they roll in and may be more informed and ask better questions if they’ve had an opportunity to review your materials first.

The Panel is especially keen to hear solutions to issues raised. If possible, frame your presentation in four parts: 1) what’s not working, 2) how can it be fixed, 3) specific ways the solution can be implemented in law or policy, and 4) examples of where it has been done well elsewhere (in other jurisdictions, or in other assessments in Canada). If you do not have specific solutions to recommend, that’s okay - it is just as important that the Panel hear Canadians’ stories about their experience with environmental assessments (or lack thereof), and how their communities and environment have been affected by development proposals.

2. Indigenous presentations: These are conducted much like the public presentations. In some sessions where there were fewer Indigenous presenters, the Panel has been more generous with time than with the public presenters, allowing presenters to speak for up to 30 minutes.

3. Public workshops: The workshops are facilitated roundtable-style sessions, usually 3 1/2 hours long and held in the evening. Participants are usually seated around eight to a table and can be quite mixed – at my table in Edmonton there was an Enbridge representative, an Alberta Ministry of Environment employee, an industry consultant, an Indigenous woman, a biologist, a federal government employee, and me (representing an ENGO). The diversity made for a great dialogue.

The workshops entail presentations from the Panel secretariat about federal EA and 30-minute roundtable discussions around questions provided in workbooks. One person at each table takes notes, and at the end of the 30 minutes the table representatives share the main discussion points with the room. As discussions are occurring, the Panel members circulate among the tables so they can hear the discussions and ask questions. During the discussions the Panel secretariat takes notes, and the written notes are collected afterwards for the Panel to review.

4. Indigenous open dialogues: The dialogue sessions are generally unstructured circle sessions that run for three hours, with participants and Panel members seated in an open circle (no table between them). They may also have brainstorming exercises, such as posters on the wall with questions, and sticky notes for participants to provide responses. For more information, the Panel has prepared this Indigenous Open Dialogue Sessions Guide to help participants better understand and engage.

Online and written opportunities

Currently, the only way to provide written submissions to the Panel is to email them to EAreview_participation@canada.ca. However, at some stage an online questionnaire (called a Choicebook) will be made available, which is aimed at soliciting informed feedback on a range of issues. The Panel has also offered webinars for remote participants who are not able to attend the in-person events: if you are interested in a webinar, contact the Secretariat via the email provided above.

 


A resident of Happy Valley-Goose Bay, Labrador, where protests are erupting over the Muskrat Falls Dam Project, highlights why stronger federal EA processes are needed for communities and the environment. Photo: Anna Johnston.

 

Multi-Interest Advisory Committee

The Minister also appointed a multi-interest advisory committee (MIAC) to assist the Panel in its review. The MIAC consists of six industry delegates, six environmental delegates (including West Coast Environmental Law), six Indigenous delegates (two each from the Assembly of First Nations, Métis National Council and Inuit Tapiriit Kanatami), and one delegate each from the National Energy Board, Canadian Nuclear Safety Commission and Canadian Environmental Assessment Agency.

During the EA Review, the MIAC is meeting in person approximately every three weeks, in addition to phone meetings and online collaborations. While the committee may proactively make process or substantive recommendations to the Panel during the EA Review, its primary task is to collaborate to make recommendations on key questions the Panel identified at the outset.

What happens next?

After the Minister receives the Panel’s report and recommendations on or before January 31, 2017, Cabinet (including the Ministers of Natural Resources, Fisheries and Oceans and the Canadian Coast Guard, Indigenous and Northern Affairs, Transport Canada, and Science) will consider the results of the four reviews collectively.

The Canadian Environmental Assessment Agency will write a Memorandum to Cabinet proposing regulatory reforms (likely amendments to the Canadian Environmental Assessment Act, 2012, or a whole new law). Similar Memoranda to Cabinet will be written for the Fisheries Act, Navigation Protection Act and National Energy Board.

Cabinet will consider these Memoranda, and if they have decided on legislative reform, ask Parliament’s Legislative Drafters to draft new Bills. Once the Bills are ready, they will go to Parliament for First Reading in the House, likely by fall 2017.

What reforms are needed?

Environmental assessment in Canada is broken. It is not working for communities, the environment or, in many cases, even industry.

In May, West Coast hosted a Federal Environmental Assessment Reform Summit, where over 30 of Canada’s leading experts on EA discussed leading-edge solutions to key issues in federal EA. The outcomes have been distilled into 12 Pillars of a Next-Generation EA which, taken as an integrated package of reforms, can help transition environmental decision-making from focusing on the least-bad way to do a project, to planning and selecting options that will be most likely to make the greatest contributions to sustainability-enhancing outcomes.

In a nutshell, next-generation environmental assessment law should be based on an integrated set of reforms, including:

  • Sustainability as a core objective, to ensure the long-term health of the environment and communities
  • Meaningful public participation for anyone who wishes to participate
  • Accessible information for the public, Indigenous groups and stakeholders
  • A climate test to ensure Canada stays on track to meet its climate goals
  • A framework for addressing the cumulative effects of industrial and other activities in a region
  • Collaborative decision-making with Indigenous nations, based on nation-to-nation relationships and the obligation to secure free, prior and informed consent
  • Rules and criteria to encourage transparency, accountability and credibility, and to avoid politicized decisions.

We have put together this letter-writing tool to help you submit comments to the Panel, with suggested language you may want to include in your letter.

Click here to submit your comments to the Panel today.

Conclusion

The EA Review is a once-in-a-generation opportunity to help build a better framework for how we consider and make decisions about proposals that affect nature and communities. If you have experience or expertise in environmental assessments, or are concerned with how we make plans and decisions that affect the environment in Canada, then please join the conversation.

 

By Anna Johnston, Staff Counsel, West Coast Environmental Law


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