Is the Federal Government Backing Away from Environmental Assessment Reform Promises?

August 11, 2017 | By admin | Filed in: Environmental Assessment.

Unless the Trudeau government takes a sharp turn from its
current course, it’s starting to look as if fixing Canada’s
environmental assessment law is going to be added to the
growing list of bold commitments that it won’t deliver on. At
the end of June, the federal government released a discussion paper outlining
its plans. They amount to little more than tinkering with the
Harper government’s devastating 2012 re-write of the
Canadian Environmental Assessment Act.

In fact, the discussion paper actually says, “changes to the
Canadian Environmental Assessment Act, 2012, are being
considered…”

The Trudeau Liberals made a campaign
promise
to “make environmental assessments credible again,”
and once in government, the Prime Minister’s
mandate letter
 to Environment Minister McKenna
repeated those objectives – to “immediately review Canada’s
environmental assessment processes to regain public trust and
help get resources to market and introduce new, fair
processes.”

Likewise, in all of the Cabinet mandate letters Prime Minister
Trudeau repeated, “No relationship is more important to me and
to Canada than the one with Indigenous Peoples. It is time for
a renewed, nation-to-nation relationship with Indigenous
Peoples, based on recognition of rights, respect, co-operation,
and partnership.”

Unless Minister McKenna and her Cabinet colleagues gets their
act together, and quickly, they are in serious danger of
betraying those promises. The discussion paper and related
materials clearly point to government agencies (chiefly but not
exclusively the Department of Natural Resources and its
regulatory agencies) that are more concerned about figuring out
what they should tell Canadians to convince them that they are
meeting their commitments than they are about actually meeting
them.

The discussion paper is the latest round of a public process
that kicked off a year ago when the federal government
appointed an Expert
Panel
to review federal environmental assessment processes.
The Expert Panel’s report – Building Common Ground: A New Vision for Impact
Assessment in Canada
– was clearly rushed, but made
dramatic progress in integrating the hundreds of submissions it
received from all sectors of society in its cross-country
hearings. Ironically, while the Expert Panel made a
huge effort to fulfill one of the key principles of public
engagement, and reflect back what it heard in reaching its
conclusions, the discussion paper makes scant reference to
either the Expert Panel’s report or the thousands of pages of
testimony that it heard.

The Expert Panel criss-crossed the country, hearing from
hundreds of people: community members, activists, experts
(government and independent), and Indigenous and provincial
governments alike. The Panel was repeatedly told – and
reported – that the environmental assessment process needs a
fundamental overhaul
if it is to serve any useful
purpose in building consensus and making informed and
participatory development decisions.

There are certainly some positive elements in the discussion
paper. It introduces gender-based analysis as
a fundamental aspect of impact assessment; if properly
implemented this would mean not just including gender-specific
social and economic impacts, but a reframing of the entire
process to make gender perspectives part of all aspects of
information-gathering, analysis, and decision-making.

It also includes a recognition of the importance of assessing
cumulative effects, both as part of regional
studies and as a key element of sustainability – though it
fails to build on this recognition to provide a useful
framework for either regional assessment (i.e.
looking at different development scenarios and projections in a
geographical area) or sustainability
assessment
(i.e. seeking the greatest overall
contribution to sustainability by integrating biophysical,
social, cultural, economic, and health effects, as outlined by
the Expert Panel).

Likewise, it does provide for direct engagement between Crown
representatives and Indigenous peoples to
address potential project impacts, and recognises (finally) the
importance and integral nature of Indigenous knowledge – but it
fails to allow for implementation of the UN Declaration on the
Rights of Indigenous Peoples (UNDRIP) despite making reference
to it, and it makes only weak references to Indigenous
jurisdiction, even under existing comprehensive land claims
agreements. Indigenous peoples were not consulted in
the formulation of the discussion paper, setting a poor
precedent for further work on the issue.

“Lost protections” of waters – still lost

There are some outright failures – the promise to “restore lost
protections” for navigable waters has been abandoned. The
Harper government’s removal of tens of thousands of Canadian
water bodies and waterways from the protection of the Navigable
Waters Protection Act – and the environmental assessment
process – was one of the key violations of trust that set off
the Idle No More movement.

Yet the Trudeau government is proposing to basically leave
things as they are. Projects affecting rivers and lakes that
are not on the “Schedule” of protected waters don’t require
permits, much less environmental assessments. While the
government is talking about making it easier to add water
bodies to the Schedule, including at the initiative of
Indigenous peoples, it’s not clear how or when this will happen
– or how it can be compared to the default blanket protections
that used to be in place.

The public, and Indigenous peoples, will have very little faith
that things can be “worked out” after the fact. The fact that
the government can make such poor proposals on critical issues,
a year into the review process, with all the information and
analysis they have been given, does not inspire any confidence
that it will follow through on anything that is not very
clearly spelled out.

A ray of hope

There is one important detail. The government is proposing to
require public notice in advance of a proposed work on
any navigable water. It’s a small but very important
concession. If projects are posted on a public registry,
there’s at least the possibility of follow up monitoring and,
where indicated, cumulative effects assessment.

It’s vastly inadequate, of course, since this wouldn’t apply to
other areas of federal authority, where there would still be no
provision for smaller projects to at least be registered. It
also fails to address the need to screen a wide range of
smaller projects for potentially serious impacts and “bump them
up” to an environmental assessment where needed.

Speaking of which, what gets assessed?

Throughout the Expert Panel process there were clear demands
from the public (and advice from experts) for a more
comprehensive assessment law, one that would deal appropriately
with small and large projects rather than just ignoring
anything short of a “major project.” People specifically
pointed to the need for mandatory assessment of projects on
federal lands, in national parks or national wildlife areas, or
requiring the disposal of federal lands – applying a suitable
level of effort so that larger projects would get more in-depth
attention, but assessing more like a few hundred projects a
year across the country, as opposed to the present couple of
dozen. No such commitment has been made, or even hinted at, in
the discussion paper. Instead, it proposes leaving the Harper
government’s “project list” in place, with a nod to adjusting
it, but without proposing any specific process or criteria for
doing so.

Likewise, while the discussion paper endorses strategic
environmental assessment as a tool for applying environmental
frameworks to government plans, policies, and programs – and
promises one on the Pan-Canadian Climate Change Framework – it
doesn’t acknowledge the importance of actually taking
sustainability into consideration in designing those policies,
and therefore making strategic assessment a legal requirement
in developing federal plans, policies, and programs.

Assessments are to be done by a single agency – unless
they aren’t

The discussion paper also proposes that all federal assessments
be coordinated and reviewed by one agency, cutting out the
National Energy Board (NEB) and the Canadian Nuclear Safety
Commission (CNSC). Great! But this is a “no-brainer”, given
that both of those agencies are widely seen as thoroughly
captured by their “client” industries and incapable of running
independent, neutral assessments. Clearly, they have a role to
play, as regulators, in contributing their expertise to the
assessment process, ensuring that regulatory requirements are
being met, monitoring and enforcing regulatory conditions
established through assessments, even contributing a panel
member to panel reviews.

But wait, what’s this? The discussion paper turns around and
proposes joint reviews between the EA Agency and the NEB and
CNSC for projects that they regulate – and then compounds the
error by adding the offshore petroleum boards, which have even
less public legitimacy as assessors. Is there anyone who
seriously thinks this is a good idea, aside from the agencies
themselves and their client industries?

Public Participation

Likewise, the document recognises the importance of early
public involvement, but undermines public participation by
leaving early engagement and much of the content of the EA
process in the hands of project proponents – and maintaining
the legislated deadlines that make it so difficult for the
public to engage fruitfully in the process (and Indigenous
peoples even more so).

Back in March, before the Expert Panel report was published, we
set out nine criteria we would judge it on: does
the next generation assessment proposal:

  1. Account for all dimensions of sustainability?
  2. Respect Indigenous authority and governance?
  3. Tie together assessment and decision-making by different
    government levels?
  4. Ensure there is a meaningful system for follow-up,
    monitoring, and enforcement?
  5. Provide for full public participation, transparency,
    accountability, and rights to challenge decisions in court?
  6. Address climate change effects?
  7. Include strategic and regional assessment as fundamental
    components of the law?
  8. Include appropriate assessment of the thousands of smaller
    projects currently not being studied?
  9. Promote evidence-based decision-making?

The Expert Panel report in April addressed all of
them quite encouragingly, some more solidly than others,
but overall, it was an important step forward. Despite a few
positive efforts, the June discussion paper falls far short.

It seems the Liberals are proposing to tinker with the
Conservatives’ legislation, not repeal and replace it. We’ve
warned them that while this may keep the captains (and
cheerleaders) of industry happy, it’s not going to restore
public confidence, much less build reconciliation with
Indigenous peoples. Maybe that’s a price they’re willing to
pay, but it will do little to help bring us to a sustainable
and just future.

What can you do? You can submit your thoughts via the
government’s discussion paper feedback
site
. You can also send a message via our
online tool
to your MP and key Cabinet Ministers, telling
them not to squander the opportunity to get EA right. This is
too important to let bureaucratic inertia and short-term
extractive industry interests derail it.


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