Joanna RosengartenBryn Gray

On April 5, 2017, Environment and Climate Change Canada released the report of an external Expert Panel that was established in August 2016 to review the scope and process of federal environmental assessments under the Canadian Environmental Assessment Act, 2012 (“CEAA 2012”). The Expert Panel’s Report contains numerous recommendations which, if implemented, would result in a fundamentally different federal environmental assessment (“EA”) process to the one that is currently in place.

This review stemmed from an election platform commitment of the Trudeau government and included a review of a number of changes introduced by the previous federal government in 2012 to Canada’s EA process, which, among other things, reduced the number of projects subject to federal EAs. From September 2016 until mid-December 2016, the Expert Panel held in-person and online “engagement events” across Canada in various cities. The Expert Panel noted in its report that the views it heard about the federal EA process ranged from support to all-out opposition.  The Panel concluded that the current EA process is “incapable of resolving these disparate points of view” and that Canada needs to “improve the way we plan for development in our country.”

The Expert Panel sets out a number of recommendations, some of which would significantly alter the current approach to federal EAs. Such recommendations include:

  • Impact Assessments: “Environmental Assessments” should be replaced by “Impact Assessments” (“IA”), which would move beyond an assessment of impacts to the bio-physical environment and examine “all impacts likely to result from a project, both positive and negative”. The Panel notes that this “new approach would not be limited in its breadth but would instead be all-encompassing” and that sustainability should be central to a federal IA, which “should provide assurance that approved projects, plans and policies contribute to a net benefit to environmental, social, economic, health and cultural well-being”.
  • Impact Assessment Commission: Impact Assessments should be managed by a single, quasi-judicial tribunal referred to as the Impact Assessment Commission (“Commission”) (i.e. the National Energy Board and the Canadian Nuclear Safety Commission, would no longer act as Responsible Authorities as they do under the current CEAA 2012).
    • The role of the Commission would be significantly broader than the role of current Responsible Authorities, with the Commission assuming many of the responsibilities now undertaken by proponents in EAs. The Commission would: lead all phases of the IA and also have the power to develop policies and procedures for the conduct of an IA; be responsible for preparing the Impact Assessment document, based on studies conducted by various parties (including the proponent and Indigenous Groups); have powers to address disputes that arise in the course of an IA; have powers to retain scientists to provide technical expertise; and, be responsible for a decision on the IA.
    • Each project would also include a project committee (including various interested parties) and a government expert committee (including experts identified by Indigenous groups) which would be significantly involved in most phases of the IA.
  • Projects Requiring Impact Assessments: A new list of projects that trigger federal IAs should be prepared (“Project List”), which the Panel envisions would increase the number of assessments from dozens of projects annually to hundreds of projects annually (rather than thousands of projects annually under the predecessor to CEAA 2012). The Panel has left the development of this list to the federal government but states that federal IAs should be conducted for projects, plans or policies with clear links to matters of federal interest, which include: species at risk, fish, migratory birds, navigation and shipping, nuclear energy, activities crossing borders and Indigenous Peoples and lands. The likelihood of consequential impacts (impacts that affect multiple matters of federal interest; impacts that have a multi-generational duration; impacts that extend beyond a project site) on matters of federal interest should determine whether an IA is required, and projects requiring an IA would be set out in a Project List. Projects that are not on the list could still require an IA if they met prescribed criteria or where a request was made and accepted by the Commission.
  • Indigenous Issues and Participation: The role of Indigenous peoples in IA would be significantly increased from the current EA process to ensure that Indigenous Peoples are “included in decision-making at all stages of IA, in accordance with their own laws and customs”. This would include greater integration of Indigenous knowledge in all phases of IA, requiring distinct studies assessing impacts to asserted and established Indigenous and treaty rights “across all pillars of sustainability (environmental, social, economic, health and cultural)”, Indigenous representation on the project committee and government expert committees, and enhanced capacity funding programs to ensure that Indigenous groups can meaningfully participate in IAs. The Commission would also take a significant role in leading consultation with Indigenous groups, which would lessen the Crown’s current degree of reliance on proponents for consultation.
    • The Panel’s discussions of Indigenous issues repeatedly references and discusses incorporation of principles from the UN Declaration of the Rights of Indigenous Peoples, including “free, prior, and informed consent”. While it is not a formal recommendation, the Panel states that the new IA regime should be based on “collaborative consent” with dispute resolution processes available at various decision points and that “ideally, for many parts of the country, there will be co-management of IA process and natural resources between Indigenous Groups and the federal government.” The Panel states that Indigenous groups should have the right to withhold consent on the IA at the Decision Phase (further described below) and, if they do, any party could request the Commission to refer the matter to a Review Panel to determine whether the withholding of consent is reasonable.
  • Process for Impact Assessment: The IA process would start earlier than the current EA process, with a detailed Planning Phase led by the Commission that defines the scope of the IA, followed by a Study Phase during which all required studies were completed. This would be followed by a Decision Phase during which a decision would be based on the overall net benefit of a project for present and future generations, taking into account all gathered information and with a focus on sustainability.
  • Decisions and Appeals: Following the preparation of the key Impact Assessment document, the Commission would make a decision on the IA. The Commission “would apply a project-specific sustainability test to assess the impacts to valued components identified across the pillars of sustainability against established criteria, taking into account mitigation and accommodation measures.” After applying this sustainability test, the Commission would request that Indigenous Groups provide their consent on the decision; if consent were not provided, the Commission would ask a Review Panel to determine whether the withholding of consent were reasonable. The new process would incentivize consensus-decision making as a Review Panel would also be appointed to make the IA decision if there were “important issues of non-consensus” after the Commission-led process.

The Commission’s decisions should be subject to an appeal to the Governor in Council.

  • Jurisdictional Cooperation: A cooperative approach should be taken between the federal and provincial governments to coordinate IAs where a project impacts areas beyond federal authority.

If the approach proposed by the Panel is implemented, it could significantly increase the number of projects that are subject to federal assessment. Of course, the number and nature of projects subject to federal IAs would depend on the scope of the proposed Project List and the criteria for determining which projects not on such list should nevertheless undergo an IA. The approach recommended by the Expert Panel would also require significant government resources and could result in increased assessment costs for proponents, longer assessment processes, and greater uncertainty of outcomes.

The recommendations and commentary of the Panel on Indigenous issues also raise questions, particularly around the proposed model of collaborative consent and dispute resolution, the range of impacts that would need to be assessed, accommodation, and the role of proponents. It is unclear how the proposed model, particularly in situations where Indigenous groups withhold consent, would take into account and consider asserted versus established rights and the strength of claim of rights assertions, overlapping claims of Indigenous groups with conflicting positions on a given project, the development of lands within traditional territories where Indigenous rights are not being exercised, and other issues affecting the severity of potential impacts and the depth of consultation or the extent of required accommodation. It is also unclear how this model, particularly the Indigenous representation on both the project committee and government expert committee, would be scaled out for large linear projects that can impact over a hundred different Indigenous groups.  Depending on whether and how the proposed IA process is implemented, this proposed approach could substantially alter what is currently required at law for consultation and accommodation of Indigenous groups.

Any actual changes to the EA process under CEAA 2012 would need to be implemented through legislation and it remains to be seen how the federal government will respond to the Panel’s report. The government is also in the process of reviewing the National Energy Board process, the Fisheries Act and the Navigation Protection Act. We anticipate that the government will wait until reports from these reviews are released before proposing any changes to CEAA 2012, given that some of these reports will raise overlapping issues, particularly on Indigenous consultation.

The above is a short-summary of some of the Expert Panel’s recommendations, which outline a process very different from the one set-out in the current CEAA 2012. The federal government is accepting comments on the Report until May 5, 2017 at http://www.letstalkea.ca/. Comments will be used to assist the government in developing options for potential legislative, regulatory and policy changes to the federal environmental assessment process. We encourage interested parties to provide comments and would be happy to discuss the recommendations and implications of the Expert Panel’s Report in further detail.