Environment & Climate Change Minister Catherine McKenna with EA Review Expert Panel Chair Johanne Gélinas (Photo: Anna Johnston).
On April 5th, the federal government released the report of the Expert Panel that has been reviewing Canada’s environmental assessment (EA) processes. The report, Building Common Ground: A new vision for impact assessment in Canada, sets out a bold new vision of how the government should weigh options and make decisions about proposals that could affect the health of the environment and Canadians.
Building Common Ground is not perfect, and the strength of many of its recommendations depends on how they may be implemented (“the devil is in the details”). But overall, it aligns closely with West Coast’s 12 Pillars of a Next Generation Environmental Assessment Regime and our submissions to the Expert Panel during the review. If adopted, it could result in a major shift towards more inclusive, evidence-based and sustainable decision-making for projects like mines, dams and pipelines, as well as for broader regional and government plans.
One thing is clear: the Panel listened carefully to Canadians during its cross-country engagement process, and made a serious effort to propose changes that reflected what they heard. The Panel was appointed by the Minister of Environment and Climate Change to provide recommendations on how to strengthen and improve federal EA processes, to assist the Minister in the fulfilment of her mandate to do the same.
Building Common Ground adopts many of the pillars of next generation environmental assessment. Or rather, impact assessment (IA), as the Panel recommends it now be called, in order to reflect the broader scope of values it should consider. The report’s recommendations cannot be fully captured in this post, but below are some key highlights related to:
- Public participation
- A new governance mode for assessments
- Indigenous rights and co-governance
- Strategic and regional assessments
One of the most important shifts the Panel recommends is from an environmental assessment approach to a sustainability-based one. What does that mean? According to the Panel, it means that federal IA should consider not just environmental factors, but social, cultural, economic and health ones, as well. It also means that rather than asking whether a proposal will have significant adverse impacts and whether those impacts are justified, IA should ensure that proposals result in environmental, social, cultural, health and economic well-being.
The Panel recognizes that sustainability-based IA requires considering alternatives, and suggests developing a “sustainability test” to determine what gets approved. The test includes sustainability criteria that encourage net environmental, social, cultural, health and economic benefits and avoid unacceptable trade-offs. Decisions should apply the sustainability criteria, and should clearly explain how trade-offs are considered.
Reflections: While it’s a positive step over the current focus on avoiding and justifying significant biophysical harm, the sustainability test’s success will depend on how well it is implemented. In addition to decision-making criteria, there should be clear rules concerning what trade-offs are and are not acceptable. These rules should ensure that environmental and human health are not traded off for economic benefits. Also, instead of shoehorning environmental and human values into five “pillars” of sustainability (environmental, social, cultural, economic and health), IA should recognize that values do not always fit into a predefined box, and allow for identification of values a case-by-case basis.
Meaningful public participation
In its report, the Panel clearly recognizes the importance of meaningful public participation as a means of achieving better, more credible and accepted outcomes. It states:
It is through public engagement and participation that social license to operate – obtaining broad public support for proposed undertakings – can be built and optimal results of IA can be reached. Further, as a learning process, it builds literacy in IA processes and builds capacity.
To achieve these goals, the Panel recommends adopting a number of best practices in public participation:
- Importantly, participation must go beyond merely providing information and accepting feedback, but must actually be collaborative. Participants should have the ability to influence decisions, and the public must be able to see how their input has been considered.
- To ensure engagement processes suit the circumstances and work for everyone involved, the public should be involved in the design and selection of participation processes in individual IAs.
- Participation should be available to all. The Panel recommends removing the ‘interested party’ requirement under CEAA 2012 (which requires participants to prove that they are directly affected by a proposal), noting that “the adoption of the ‘standing test’ by the National Energy Board (NEB) has greatly hindered trust in the assessments the NEB conducts.”
- It also notes that participation must occur early and continue throughout assessments, including in the follow-up stages.
Reflections: These recommendations are commendable and align with our recommendations on meaningful participation, but again much depends both on implementation and on organizational culture.
The Panel also recommends that “substitution” – allowing other levels of government to carry out the environmental assessment – be an option where certain criteria are met. While we recognize the importance of coordination, no matter how good a substitution agreement can look on paper, the institution running the substitution must also have a culture that recognizes the value of engagement and truly respects public participants.
For all processes, there will need to be means of ensuring the transparency, credibility and accountability of the body conducting the IA. External audits, rights of appeal (and an independent tribunal to hear those appeals) and other safeguards go hand-in-hand with opportunities, funding and capacity building in ensuring that participation is meaningful and fair.
Governance – A whole new model
One of the most significant changes recommended in Building Common Ground is an overhaul of how assessments are conducted and reviewed, and how decisions are made.
When it comes to assessing pipelines and nuclear projects, the Panel recommends that the NEB and Canadian Nuclear Safety Commission (CNSC) no longer be responsible authorities for those types of projects. Rather, it suggests that all federal assessment power and responsibility should be vested in a new “IA Commission.” The Commission would be responsible for every aspect of an assessment, including:
- early planning and entering into collaboration with other jurisdictions
- appointing “project committees” and “government committees” to help design the process, identify what studies are necessary and who should conduct them;
- appointing teams of experts from within and outside government to conduct the studies and put together the impact statement;
- consulting Indigenous peoples (according to consultation plans designed by affected Indigenous groups) and determining the adequacy of that consultation;
- engaging the public and stakeholders;
- reviewing the assessment; and
- making the final decision about whether and how the project should proceed, subject to an appeal to Cabinet.
Reflections: The recommended model closely aligns with our recommendations that there be a single, independent assessment authority to appoint teams to conduct the assessment studies, review the assessment and make findings. However, there are a few important points of departure.
Building Common Ground would vest a lot of responsibility (and power) in one entity, raising concerns regarding accountability, transparency and integrity. For example, the Panel recommends that the Commission have overarching self-oversight, by being responsible for ensuring the integrity of IA processes, as well as itself, through self-directed quality assurance audits.
While internal quality assurance programs are not uncommon in government, an entity with so much power (including final decision-making) over proposals that can result in direct impacts to communities and their environment should have independent oversight. Also, this Commission would be the body responsible for resolving disagreements between different jurisdictions, ranging from facilitation to arbitration. In other words, it would be the arbiter of its own disputes.
There are also, of course, risks inherent to the quasi-judicial model proposed beyond those described above, where an independent tribunal makes ultimate decisions. There is a strong sense of mistrust in the NEB, which is also a quasi-judicial body. That mistrust is partially attributed to its independence from government. Elected officials can be held to account through the ballot-box, whereas Cabinet-appointed commission or board members are further removed from democratic accountability.
Still, this “super-Agency” approach could be a workable model, so long as the necessary checks and balances are in place to keep it accountable to Canadians. As we recommended in our submissions to the Panel, an independent tribunal to resolve disputes, provide general oversight of the Commission’s functions, and hear appeals from the public and parties to IA would go a long way towards providing that accountability.
Indigenous rights and co-governance
Another pivotal shift from the status quo are the Panel’s recommendations on how to implement the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) in IA and uphold the rights and title of Indigenous peoples. In recognition of Indigenous peoples’ right to self-determination and their inherent jurisdiction, the Panel recommends that legislation explicitly acknowledge Indigenous peoples’ ability to be directly involved in decision-making.
Indigenous peoples should be able to select their own representatives to participate in IA processes, and apply their own decision-making institutions and customs in the process. Collaboration is key and co-management of IA process and natural resources is the ideal, but in all cases Indigenous peoples have the right to withhold their consent to whether a project proceeds. The Panel suggests that the ability to withhold consent should be “exercised reasonably,” done transparently and subject to a dispute resolution process.
In addition to a collaborative consent model of decision-making, the Panel recommends that Indigenous peoples design how Indigenous knowledge is gathered and considered in IA, as well as plan and complete studies evaluating how proposals may impact rights and title. The IA Commission should be designated an agent of the Crown and given responsibility for Crown consultation and accommodation. Because the IA Commission is also the decision-maker, it (and Indigenous and provincial co-decision-makers under a collaborative framework) would also determine the adequacy of consultation.
Reflections: While a huge step forward and towards reconciliation, the Panel’s proposed model raises some questions.
The Panel has recommended establishing an independent tribunal in the Commission, but also designating it as an agent of the Crown, which necessarily interferes with this independence.
Secondly, under this model the Commission would be responsible for both conducting consultation and accommodation, and determining if it’s adequate. In other words, it would be its own judge. As mentioned above, creating an independent tribunal to resolve disputes, including challenges to the adequacy of consultation, may be a more appropriate model.
Strategic and regional assessment
The Panel heard from a broad cross-section of review participants about the need for a greater focus on regional and strategic IA – assessments that look at regional or strategic choices, rather than only assessing individual projects. Regional and strategic IA means incorporating more long-term planning and considering the cumulative effects of multiple types of activities in a given region. The Panel recognizes that regional assessments could make project-level IA more efficient, and could also facilitate collaboration with Indigenous peoples and the provinces.
The Panel recommends that regional IA be required on federal lands or marine areas where there is potential for cumulative impacts, and outside of federal lands and marine areas where there is potential for or existing cumulative impacts on “federal interests” (generally speaking, areas within federal jurisdiction, such as fisheries, navigation and Indigenous peoples).
It also recommends that strategic IAs be required for federal policies, plans or programs that would have “consequential implications” for project or regional IA.
However, other than recommending a strategic assessment of how to address climate change, the Panel is silent on the need to do strategic IA to address emerging issues. It also does not recommend entrenching the current Cabinet Directive requiring strategic EAs of government plans, policies and programs to be entrenched in legislation, which would address findings of the Commissioner of Environment and Sustainable Development that the majority of assessments required under the Directive are not being done, and when they are done, they are not done properly.
Reflections: The Panel’s recommendations are a welcome first start, but regional and strategic IA will need to go beyond the report’s recommendations in order to achieve the best results. For example, the legislation should require strategic assessments of broad public policy issues (such as whether to pursue new oil pipelines to tidewater, or the pace and scale of development in a region). Legislation will need to set out clear criteria for when these broader assessments are required and provide incentives for both the federal and provincial (in cooperation with Indigenous) governments to conduct them.
Overall, the Panel’s report has offered the government a pretty good roadmap for how to improve decision-making that affects Canadians and the environment. It’s not perfect, but it’s certainly a step in the right direction.
The Minister of Environment and Climate change is inviting Canadians to share their views on the report and recommendations via its online portal at www.letstalkea.ca/. The deadline for public comments is May 5, 2017.
We encourage you to stay involved and urge the government to build on the Panel’s recommendations to create a visionary new EA law.
Canadians have sent a clear message that our environmental assessment processes are broken – and this is our chance to get it right.
By Anna Johnston, Staff Counsel, West Coast Environmental Law