This June, the Minister of Environment and Climate Change announced that she will establish an independent expert panel to review Canada’s environmental assessment processes under the Canadian Environmental Assessment Act, 2012 (CEAA 2012) and opened up a 30-day public comment period on the Panel’s draft Terms of Reference.
A key step towards helping the Minister fulfill her mandate to introduce new, fair environmental assessment processes, the review was welcomed by many – including West Coast Environmental Law – as an opportunity to develop a visionary new approach to assessing development proposals, as well as government policies, plans and strategies. There is little, if anything, worth salvaging in the controversial CEAA 2012 and its predecessor, the original CEAA, was by no means perfect either. Rather than tweak at the edges of a fundamentally broken and outdated system, Canada needs a next-generation environmental assessment law that works for nature and communities, and upholds Canada’s international commitments, including the Paris Agreement and the UN Declaration on the Rights of Indigenous Peoples.
Building that law will require the right process (remember how the previous administration developed CEAA 2012 without consultation, buried it in omnibus ‘budget’ bill C-38 and then rammed it through despite widespread opposition? Remember how that resulted in conflict, delays and uncertainty for everybody involved?). We at West Coast were heartened by some of the things in the EA Panel’s draft Terms of Reference, such as that the review will be undertaken by an independent panel and have the potential to be advised by experts in the field, which we had recommended as core components of an effective process. But the Terms of Reference are not perfect, and so to ensure we land on a review that has the best shot at bringing us the degree and scope of changes we need to environmental assessment laws, West Coast has made a few recommendations to the Canadian Environmental Assessment Agency that we believe would best enable the Panel to conduct the review so as to develop solutions that work.
The Agency is accepting submissions until July 20 and we encourage you to submit your own comments, too. Designed correctly, this review will be a unique opportunity to meaningfully weigh in on the development of an important national environmental law that affects the public’s ability to have a say in projects that affect them. Tell the Agency what issues you think the Panel should be considering and how it should be considering them. Below are some of the things we said, as well as other requests you may wish to make.
West Coast’s recommendations
As the Terms of Reference are currently worded, there is a risk that the Panel could construe its mandate narrowly. But as we note in our comments on the draft Terms of Reference, “[d]eveloping a visionary new approach requires that the independent expert panel have a broad mandate and the authority and resources to commission expert analysis and reports, undertake broad and inclusive public participation, and collaborate with Indigenous governments, to ensure that the necessary substantive legislative changes are brought forward.”
Here are our recommendations on how to help ensure that the review is broad enough and the Panel has adequate resources to identify strategic-level solutions to strengthening EA rather than just incremental improvements to the existing law:
- Delete the proposed definition of environmental assessment. Currently, the “Context” section of the Terms of Reference gives a very narrow description of environmental assessment. For the Panel to think expansively outside the box about environmental assessment solutions, it should be first tasked with to explore and define the goals and purpose of modern-day EA to set the context for the new process.
- Consider whether the National Energy Board and Canadian Nuclear Safety Commission should be at the EA helm. The draft Terms of Reference currently ask the Panel to assess how the NEB and CNSC are conducting environmental assessments without asking the overarching question of whether they should be at all.
- Examine bigger-picture questions. In addition to goals and purpose, the Panel should examine leading-edge solutions to key issues, such as strategic and regional assessment, how to effectively assess and manage cumulative effects, the potential role of Indigenous co-management bodies, and who should be doing assessments and making final decisions.
- Commission discussion papers by leading thinkers. The Panel is going to have to hit the ground running in order to accomplish its goals within the timeframe. Discussion papers by experts in the field that explore leading-edge solutions to key issues can provide innovation, direction and a focus for discussions on law and policy reform. The Panel should have adequate resources and direction from the Minister to commission expert advice once appointed, but the Minister should also consider commissioning discussion or options papers in advance, to get the ball rolling. The purpose and role of federal EA would be an excellent start.
- Show how comments are considered. The Terms of Reference require the Panel to summarize comments received in its report, which is good. Even better would be for the Panel to have to show how it considered the input it received during the course of the review, for transparency and accountability.
- Provide a public review of draft report. To help ensure that the Panel’s report best reflects public and stakeholder comments, the outcomes of government-to-government engagement with Indigenous peoples, and expert opinion, the Terms of Reference should provide for a public comment period and Indigenous consultation on a draft of the Panel’s report. Given the already tight timelines for the review, the January 31st deadline for the final report should be changed to a deadline for the draft.
There are two additional areas that we’d encourage you to cover in your comments to the Agency on the Terms of Reference. First, related to the above comments on the need for the review to have a broad scope and look at bigger-picture questions, it could be helpful for the Agency to hear which issues you think the review needs to cover, the issues that particularly impact or concern you.
Worried about how environmental assessment can and will be used to ensure that Canada meets its climate change commitments under the Paris Agreement? Concerned about the cumulative impacts of multiple forms of development on your region, community and the ecosystems that sustain them? Want to ensure that discussions about climate and energy policy occur at higher, strategic levels to avoid future fights over oil pipelines? Let the Agency know just how important it is for this review to deeply examine solutions to those problems.
Second, if you are interested in participating in the EA review, now may be a good time to weigh in on where and how you would like consultations to take place. Two of the Panel’s first tasks are to come up with consultation plans for Indigenous peoples and the public. While the places the Panel will do consultations and the forms those consultation are beyond the scope of the Terms of Reference, the Panel has a lot to do in a short window of time between when it is appointed and January 31 when its report to the Minister is due, so it may be a good idea to start creating that record of where, when and how you would like to be consulted to better ensure that your needs are reflected in the consultation plan.
You can read the EA Panel’s draft Terms of Reference here, as well as how to submit comments to the Agency and stay involved. To provide your own comments, you can email them to [email protected] or send them snail mail to:
Review of Environmental Assessment Processes
Canadian Environmental Assessment Agency
160 Elgin Street, 22nd Floor, Ottawa ON K1A 0H3
Again, our submissions on the Terms of Reference are here, and if you’re not already on our email list, consider signing up for West Coast's Legal e-Brief newsletter to stay up to date about the federal EA Review and other opportunities to help strengthen Canada’s environmental laws.