On April 5, 2017, the Expert Panel (the “Panel”) released its report to the Minister titled, Building Common Ground: A New Vision for Impact Assessment in Canada (the “Report). The Panel was appointed by the federal Minister of Environment and Climate Change to make recommendations on improvements to the federal Environmental Assessment (“EA”) process.
The Panel’s recommends very wide ranging changes to the EA process including combining the current multiple federal EA agencies, such as the NEB, into a single “Impact Assessment Commission” and a new process to request Indigenous consent. Public comments on the Report will be accepted online at http://www.letstalkea.ca/ until May 5, 2017.
The Expert Panel’s key recommendations are summarized below.
1. Impact Assessment
The Panel recommends moving the environmental assessment process from an assessment of bio-physical environment to an assessment of all impacts (e.g., in addition to environmental issues, social issues, economic opportunities, health impacts, and cultural concerns), both positive and negative that are likely to result from the project. The Panel found “impact assessment” (or an “IA”) would therefore be a more appropriate label than “environmental assessment”. In determining when an IA is necessary, impacts on matters of federal interests should be a central consideration, which include, at a minimum, federal lands, federal funding and where the federal government is a proponent.
2. One Project, One Assessment
The Report calls for increased co-operation among jurisdictions with respect to assessments subscribing to a “one project, one assessment” principle. Where an assessment will involve more than one jurisdiction, the Panel recommends cooperative assessments (where all relevant jurisdictions participate), but suggests substituted assessments (where one jurisdiction conducts the assessment) should still be an option on the condition that the highest standard of assessment applies.
3. Single IA Decision Maker
The Panel recommends moving away from the current model of Responsible Authorities under CEAA 2012. Currently, the National Energy Board (“NEB”), the Canadian Nuclear Safety Commission (“CNSC”) and the Canadian Environmental Assessment Agency all conduct environmental assessments, depending on the nature of the project. The Panel reported that there was a perceived lack of independence and neutrality of the NEB and CNSC among some of the participants. To address these concerns, the Panel recommends the establishment of a single federal IA authority called the “Impact Assessment Commission” (the “Commission”), a quasi-judicial tribunal empowered to conduct and make decisions with respect to all impact assessments.
4. New IA Commission’s Mandate
The recommended mandate of the Commission is extensive and includes:
- conducting IAs;
- ensuring impacts on Aboriginal and treaty rights are considered and assessed in the assessment process and ensure the duty to consult and accommodate is appropriately fulfilled by the Commission;
- maintaining a public registry of assessment information;
- providing dispute resolution and decision-making to advance assessment objectives; and
- ensuring compliance, monitoring and follow up on assessment decisions.
5. Recommended IA Process
The Report outlines a three phase federal IA process consisting of the Planning Phase, the Study Phase and the Decision Phase. Each of these is described in more detail in the Report, but outlined below briefly:
- Planning Phase - The scope of assessment will be determined in the planning phase.
- Study Phase - The study phase will follow and consist of the substantive assessment work including baseline studies conducted by consultants and experts retained by the Commission and funded by the proponent. The study phase must address accommodation for impacts on Aboriginal and treaty rights. An Impact Statement would be drafted at the end of the study phase, and areas where consensus is reached will be identified, as well as areas where consensus is not reached.
- Decision Phase - The decision with respect to the assessment of the project would then be made by the Commission, which would seek consent of Indigenous peoples and decide whether the project “contributes positively to the sustainability of Canada’s development”. The Report recommends that the decision be subject to appeal (at the request of any participant) to the Governor in Council, and the Governor in Council be required to provide reasons, including an explanation and justification of trade-offs, as well as the project-specific sustainability criteria.
6. Requesting Indigenous Consent
Enhanced participation in the IA process by Indigenous Peoples was a key goal of the Panel’s Terms of Reference. The Report states that the broader implementation of the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”) and its principles ought to be reflected in the assessment process and recommends:
- The assessment processes should require the assessment of impacts to asserted or established Aboriginal or treaty rights;
- The Commission should be designated an agent of the Crown, responsible to fulfill the duty to consult;
- Indigenous knowledge should be integrated into all phases of the assessment; and
- Seeking consent of Indigenous Groups.
The Report recommends that the new regime should be based on “collaborative consent” with Indigenous Peoples. The Panel made the following recommendation with respect to the Decision Phase:
After applying the sustainability test to the project, the Commission would officially request that Indigenous Groups provide their decision on consent. If an Indigenous Group provides its consent, the process would continue. If an Indigenous Group withholds consent, any party involved could request that the Commission refer this matter to a panel to review whether the withholding of consent is reasonable. For clarity, the absence of appropriate accommodation measures should be deemed an acceptable reason for the withholding of consent.
The recommendation is silent with respect to situations of differing opinions regarding consent from different Indigenous groups. Similarly, the recommendation does not provide further details on what would be done with the panel’s review of the reasonableness of withholding consent.
7. Regional Impact Assessments and Strategic Impact Assessments
The Report recommends that the legislation require a regional impact assessment where there is a potential for, or existing, cumulative impacts, on many federal interests, or on federal lands or marine areas. A regional impact assessment would be conducted using the same three-phased process as a project impact assessment (described above). In the Panel’s view, a regional assessment may help reduce costs and time required for project assessments, allowing those assessments to focus on project-specific impacts.
The Report also recommends that the legislation require a strategic impact assessment when a new or existing federal policy, plan or program would have implications for a project or regional impact assessment. The strategic assessment is not described in detail, but would be a process where Indigenous groups and the public provide input on how to implement the policy, plan or program.
8. Public Comments on Report
Public comments on the Report will be accepted online at http://www.letstalkea.ca/ until May 5, 2017.