Fish, Canoes, Pipelines – Un-gutting Canadian Environmental Assessment

Fish, Canoes, the Environment and Pipelines – “Un-gutting” Canadian Environmental Assessment

 

The federal government announced the beginning of its review of the federal environmental assessment processes on July 20, 2016 – the day before National Aboriginal Day. The Government of Canada says it has committed to review and restore confidence in Canada’s environmental and regulatory processes and is undertaking a comprehensive review of these processes.  We provide this initial briefing note, and will follow-up with further information as we learn more.  As environmental and energy regulatory geeks, we think this is a big deal.  For many of our clients, this is a really, really big deal.

 

What's Up?

On January 27, 2016, Minister of Environment and Climate Change, the Honourable Catherine McKenna, and Minister of Natural Resources, the Honourable Jim Carr, announced an interim approach to restore trust in Environmental Assessment.  In a previous post we looked at seven implications of this new approach to Environmental Assessment for Indigenous Nations.   We’ve previously written about related topics, including: "Changes Coming to Canada’s Pipeline Review Processes", "Eyeing the Overhaul of Canada’s Environmental Assessment Process", and "Indigenous Knowledge in Environmental Assessments".

 

Prime Minister Justin Trudeau’s intentions have been clear for some time: “We will conduct a full review of the legislation unilaterally imposed on Indigenous peoples by the previous government,” the Prime Minister told a meeting of the Assembly of First Nations in Gatineau, Quebec. “Where measures are found to be in conflict with your rights, where they are inconsistent with the principles of good governance, or where they simply make no public policy sense, we will rescind them.”

Why should you care?  For Indigenous communities and groups, this is an important political and jurisdictional moment.  For people across Canada, this is a moment to see how political promises are fulfilled.  The Government of Canada says it is seeking to:

  • Restore robust oversight and thorough environmental assessments of areas under federal jurisdiction, while working with provinces and territories to avoid duplication;
  • Ensure decisions are based on science, facts and evidence and serve the public’s interest;
  • Provide ways for Canadians to express their views and opportunities for experts to meaningfully participate, and
  • Require project advocates to choose the best technologies available to reduce environmental impacts.”

#IdleNoMore

The #IdleNoMore movement was rooted in the Harper government’s so-called omnibus legislation that cut back – some say “gutted” – federal environmental assessment processes.  The omnibus budget bill C-45 introduced extensive changes without Indigenous consultation, and with minimal public discussion.  The Bill re-wrote Canada’s environmental laws, including the Navigable Waters Protection Act, the Fisheries Act and the Hazardous Materials Information Review Act.  These laws were important to Indigenous groups, and the people of Canada, as they provided significant protection of sustainable environments, clean water and healthy oceans. Many argued that the changes assaulted the integrity of the environment “to the detriment of present and future generations”. 

The changes to the Navigation Protection Act reduced federal environmental oversight from 32,000 major lakes and 2.25 million potentially navigable rivers to 3 oceans, 97 lakes, and portions of 62 rivers.  Many major projects on treaty lands and the traditional lands of Indigenous peoples were less likely to be subject to environmental impact assessments.  The David Suzuki Foundation said: "In reality, amendments to environmental laws account for about half of the 452-page bill. These amendments will weaken Canada’s capacity for environmental governance, threatening our land, climate and water." 

Given the history here, it is no surprise that Indigenous engagement has a high priority in these review process.  The government says that during these review processes it will:

  • Engage national and regional Indigenous organizations, groups, and communities (including First Nations and Métis) to enable their participation at regional and local levels; and
  • Work with regional Indigenous organizations in the planning and hosting of Indigenous in-person engagement events

  

So what’s next?

 

The key date is January 31, 2017.  This is the deadline for two separate Expert Panels to provide reports with recommendations.  There will be one Expert Panel for reviewing the Canadian Environmental Assessment Act 2012 (CEAA 2012), and a second Expert Panel for National Energy Board Modernization

 

Between now and January 31, 2017, the following steps will unfold:

 

  1. July 20, 2016 – deadline for commenting on the draft Terms of Reference for each of the Expert Panels
  2. Late July/August, 2016 – Panel members and details on the participant funding application process for Indigenous people will be announced.
  3. August 31, 2016 – Deadline for sharing views through questionnaire that will be available until August 31, 2016. A summary of comments received will be posted after the results of the questionnaire have been analysed.
  4. September, 2016 – consultation events in locations across Canada, with a particular focus on hearing from Indigenous people: “As part of the government’s commitment to renewing its relationship with Indigenous people based on trust, respect, and cooperation, the Expert Panel will work directly with Indigenous groups to ensure that their concerns are heard and taken into account throughout the review.... This will include engaging with national and regional Indigenous organizations, groups and communities to enable their participation at regional and local levels, and working with regional Indigenous organizations in the planning and hosting of “Indigenous in-person engagement events”.  The Panels will also be preparing Indigenous Engagement Plans outlining how and when they will conduct such engagement events.

 

Where Can I Find Out More?

There is a one-window website that takes you to the four parallel Government of Canada reviews of environmental and regulatory processes:

  • Reviewing federal environmental assessment processes;
  • Modernizing the National Energy Board; and
  • Restoring lost protections and introducing modern safeguards to the the Navigation Protection Act.
  • Restoring lost protections and introducing modern safeguards to the Fisheries Act

The website is here: https://www.canada.ca/en/services/environment/conservation/assessments/environmental-reviews.html

You can also follow the hashtag: #EAReview on social media

 

Fish, Canoes, the Environment and Pipelines – “Un-gutting” Canadian Environmental Assessment

Who Is Leading These Reviews? 

 

Expert Panels

Two Expert Panels will be created.  Indigenous and public input is invited until July 20, 2016 on the draft Terms of Reference for each Expert Panel.  The Terms of Reference is a document that outlines its proposed mandate, timelines and procedures.  Participant funding will be made available to assist Indigenous people in participating in the process and expressing their views. 

 

1) Federal Environmental Assessment Processes: The Minister of Environment and Climate Change is establishing an Expert Panel to review federal environmental assessment processes associated with CEAA 2012. The Expert Panel will engage broadly with Canadians, Indigenous groups and key stakeholders and develop recommendations to the Minister of Environment and Climate Change “for restoring public confidence in environmental assessment processes”.

 

The Environmental Assessment review Panel will consider how environmental assessment processes are conducted by the three responsible authorities under CEAA 2012: the Canadian Environmental Assessment Agency, the Canadian Nuclear Safety Commission or the National Energy Board. This will include the practices and procedures associated with the conduct of environmental assessment, such as Indigenous consultation, public participation, the role of science and harmonization with other orders of government. In assessing the practices and procedures associated with the conduct of environmental assessments, the Panel will consider the relationship between environmental assessment processes and the Aboriginal and treaty rights of Indigenous peoples and reflect the principles outlined in the United Nations Declaration on the Rights of Indigenous Peoples. The Panel shall also consider how to enhance regulatory certainty in the development of major projects in Canada.

 

2) National Energy Board Modernization - The Panel will prepare an Indigenous Engagement Plan, outlining how and when it will conduct Indigenous in-person engagement events. In preparing the Plan, the Panel will take into account the activities associated with the other mandated reviews. This Plan will be posted to the Panel’s website.  To ensure full participation and engagement with Indigenous groups in the NEB modernization process, Natural Resources Canada will determine the best mechanism to deliver participant funding to these groups, which could include working with other departments and agencies.

 

           

Secretariats

Both the EA Expert Panel and the NEB Modernization Panel will have Secretriats.

A Secretariat consisting of NRCan and NEB officials will provide administrative, technical, and procedural support to the NEB Modernization Panel. The Secretariat will work closely with their counterparts in departments and agencies conducting other mandated reviews to share information and ensure a coordinated approach to communications and Indigenous engagement. Members of the Secretariat shall be guided in their work and professional conduct by the Values and Ethics Code for the Public Service.


Expert Advice

The government will make use of advice from various experts:

1) Environmental Assessment Review - A Multi-Interest Advisory Committee with representatives of Indigenous organizations, industry associations and environmental groups will be established by the Minister to provide advice to the Panel.  The Panel will identify a select number of issues which may benefit from discussion by the Multi-Interest Advisory Committee. The Panel will, by way of a letter to the Canadian Environmental Assessment Agency, as convener of the Multi-Interest Advisory Committee, describe the issues for which it seeks advice and provide any relevant context to support the discussions by the Multi-Interest Advisory Committee.

The Multi-Interest Advisory Committee will meet as required in order to discuss the issues and will provide its consensus advice, to the extent possible, for the Panel’s consideration and in accordance with any timeline provided by the Panel. Any advice provided to the Panel will be posted on the Panel’s website. The Panel will include a summary of any advice provided in its Report.  Where expertise cannot be provided by the Multi-Interest Advisory Committee, the Panel may retain the services of independent non-government experts to provide advice on certain subjects within its mandate. Any advice provided to the Panel will be posted on the Panel’s website.

 

2) National Energy Board Modernization - The Panel may retain the services of independent non-government experts to provide advice on certain subjects within its mandate. Any advice provided to the Panel will be posted on the Panel’s website.

 

What About the Fisheries Act and the Navigation Protection Act?

In case you don't have enough to follow and engage in with the above reviews (!), in parallel and during about the same timeframes, the government is looking to:

  • restore lost protections and introducing modern safeguards to the the Navigation Protection Act, and
  • restore lost protections and introducing modern safeguards to the Fisheries Act

1) The Fisheries Act: Restoring lost protections and introducing modern safeguards.

The Fisheries Act gives the government authority to manage Canadian fisheries and to protect the habitat that supports them. The government says it will look at recent changes to the Fisheries Act and propose ways to restore lost protections and incorporate modern safeguards into the Act.

The Minister of Fisheries, Oceans and the Canadian Coast Guard, along with the Minister of Transport, are asking Parliament’s Standing Committee on Fisheries and Oceans and the Standing Committee on Transport, Infrastructure and Communities to examine recent changes to the Fisheries Act and the Navigation Protection Act and to hear from Canadians.

As an independent and public forum, a parliamentary committee can hear from witnesses including experts. All Canadians will be able to submit briefs or ask to appear as witnesses. You can also attend the hearings in person or watch them on the parliamentary web channel.

  • As part of the government’s commitment to renewing its relationship with Indigenous peoples, Fisheries and Oceans Canada says it will work directly with Indigenous groups to ensure that their concerns are heard and taken into account. Participant funding will be available to make sure groups are able to participate and express their views.
  • Summer 2016:
    • Engagement begins with provinces and territories
  • Fall 2016
    • Canadians can share their views online
    • Parliamentary committee begins work
    • Participant funding window opens for Indigenous groups
  • Early 2017
    • Parliamentary committee submits report and recommendations to Parliament

 

2) The Navigation Protection Act: Restoring lost protections and introducing modern safeguards.

The amendments to the Navigable Waters Protection Act, which came into force in 2014, concentrated the application of the Act on only 162 of Canada’s commercial and recreational navigable waterways by introducing a list of Scheduled waters (i.e., oceans, lakes and rivers). The Government of Canada has promised to review the recent changes to the Navigable Waters Protection Act, restore lost protections and incorporate modern safeguards.

The Minister of Fisheries, Oceans and the Canadian Coast Guard, along with the Minister of Transport, are asking Parliament’s Standing Committee on Fisheries and Oceans and the Standing Committee on Transport, Infrastructure and Communities to examine recent changes to the Fisheries Act and the Navigable Waters Protection Act and to hear from Canadians.

As an independent and public forum, a parliamentary committee can hear from witnesses and invite experts. All Canadians are able to submit briefs or ask to appear as witnesses. You can also attend the hearings in person or watch them on the parliamentary web channel.

As part of the Government of Canada’s commitment to renewing its relationship with Indigenous peoples, Transport Canada will work directly with Indigenous groups to ensure that their concerns are heard and taken into account. Participant funding will be available to make sure they are able to participate and express their views.

  • Summer 2016
    • Engagement begins with provinces and territories
  • Fall 2016
    • Canadians can share their views online
    • Parliamentary committee begins work
    • Participant funding window opens for Indigenous groups
  • Early 2017
    • Parliamentary committee submits report and recommendations to Parliament

 

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