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Federal Environmental Assessment – What’s Next? – Expert Panel Releases Report

Posted in Aboriginal, Consultation, Environmental, Mining, Oil & Gas Law, Project Development, Project Permitting, Public Utility, Regulatory, Regulatory Compliance
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On April 5, 2017, an Expert Panel established by the Minister of Environment and Climate Change (the “Panel”) released its report, Building Common Ground – A New Vision for Impact Assessment in Canada, The Final Report of the Expert Panel for the Review of Environmental Assessment Processes (the “Report”). Our post of June 26, 2016 discussed the Federal Government’s review of key environmental and regulatory legislation and processes. The Report is a step in this review and Canadians are invited to comment on the Report until May 5, 2017.

The executive summary of the Report sets out 48 recommendations regarding legislative and regulatory changes to the current environmental assessment (“EA”) processes associated with the Canadian Environmental Assessment Act, 2012 (“CEAA 2012”).  The recommendations, if adopted, would represent significant changes from the current approach to federal EA processes. Some key themes covered in the Report are:

  • a shift in focus from EA (with an emphasis on the bio-physical environment) to a sustainability-based Impact Assessment (“IA”) process based on five pillars of sustainability: environmental, health, social, cultural and economic considerations;
  • the purpose of federal IA, and an approach that incorporates not only Project IAs, but also Strategic IAs and Regional IAs;
  • considerations regarding Indigenous Peoples, their inclusion in the processes and in decision-making, and IA processes reflecting the principles of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP);
  • the establishment of a single IA Authority as a quasi-judicial tribunal, responsible for leading the development of the Impact Statement, and with the power to compel expertise from federal scientists, retain external scientists, and verify the accuracy of studies across all five pillars of sustainability;
  • evidence-based IA, incorporating Indigenous knowledge, community knowledge, and the best available scientific information, and including provision for a federal database for baseline and monitoring data;
  • a proposed new process for Project IA that provides for open, meaningful public participation, involves multi-party in-person engagement, and has three phases: Planning, Study, and Decision;
  • a Decision Phase in which the IA Authority would seek Indigenous consent, and would issue a decision statement on whether the project contributes positively to the sustainability of Canada’s development;
  • new triggers for Project IA based in part on a new Project List, as well as other projects that are likely to have a consequential impact on matters of federal interest, the intention being to have hundreds of projects per year triggering federal IA, rather than the dozens per year that trigger EA under CEAA 2012, or the thousands per year that triggered federal EA under the pre-2012 CEAA legislation;
  • co-operation among jurisdictions, whether through co-operative IAs or substituted IAs (but without the equivalency option that is set out in CEAA 2012);
  • mandatory project monitoring and follow-up programs, which may include Indigenous Groups and local communities; and
  • provision of a broad set of enforcement tools, including the possibility of the IA Authority carrying out compliance and enforcement activities with other jurisdictions.

Underlying Focus – The Shift to Sustainability

Underlying the entire Report is the Panel’s recommendation that sustainability be central to any new IA legislation, meaning that assessments should move beyond the bio-physical environment to encompass a review of impacts on all five of the pillars of sustainability identified in the Report (environment, society, economy, health, and culture). Changing the nomenclature from Environmental Assessment to Impact Assessment underscores the substantive changes proposed in the Report.

The Panel further recommended a sustainability framework be defined at the outset of each assessment, addressing each of the five pillars. The panel recommended that the decision of whether to approve a project should no longer be based on the significant adverse environmental effects test, but rather should be based on the sustainability framework in the form of a sustainability test. This is a departure from CEAA 2012 and historic assessment processes, which concentrated on the significance of adverse environmental effects.

There are many points of interest covered in the Report. Stay tuned for additional posts from our practice group in the coming days, elaborating on some of the other key points.

Implications

The Report represents another step in understanding how the Federal Government may amend federal EA processes, but does not provide concrete examples of what the new legislation may look like. The recommendations, if adopted, imply a substantial re-write of the legislation. For project proponents – particularly industry – the message remains that assessments will continue to be required for new projects, but how new triggers and a new test will be legislated remains unclear. The changes may also involve the establishment of a new regulator and new assessment and decision-making processes.  Project proponents must pay close attention to the Federal Government’s response to the Panel’s recommendations, and may consider commenting on the Report to ensure their views are considered.