The Power of Perspectives

The Canadian Bar Association

Kim Covert

The impact assessment regime: A review of the review of the review

September 21 2017 21 September 2017

 

Having a clear, predictable federal regime for impact assessments is just the first step toward creating a process that will restore Canadians’ trust in the system and get resources to market. That protocol must also be sufficiently funded and resourced, say the CBA Aboriginal and Environmental, Energy and Resources Law Sections in response to an expert panel’s report released this summer.

The two CBA Sections were also among those who contributed to the report with a submission made to the expert panel during its consultation process in December 2016.

With the latest submission, the two groups commend the panel’s and the federal government’s efforts to review the environmental impact assessment process, and agree that the goal of the reviews should be to develop a process based on sustainability factors including incorporating meaningful public participation, best available scientific information and indigenous and community knowledge, while protecting the environment.

The Sections have made a total of 42 recommendations based on the report, a number of which deal with the need for adequate funding and resourcing – and who should be responsible for providing that funding.

“We agree that adequate funding of interested parties including Indigenous groups, is a key precondition for robust IAs that result in decisions based on ‘science, facts and evidence, and serve the public’s interest’,” the Sections say. “Without sufficient funding, interested parties cannot meaningfully participate in an IA process.”

However, the Sections note, the report doesn’t identify who should provide it, which suggests that it might be left to the project proponent to pay.

“Imposing this burden solely on the project sponsor may adversely affect its willingness to develop projects in Canada. To avoid this result, it will be important to ensure that the IA process is sufficiently and fairly resourced by the proponent as well as the federal government and other jurisdictions to ensure meaningful participation.”

The Sections note that the expert panel gave extensive consideration to the role of Indigenous groups in the IA process. Among other comments, the Sections stress that Indigenous groups must not simply be involved in the process, their involvement must be meaningful, which among other things means giving Indigenous community knowledge of an area consideration along with other sources of evidence.

As well, the Sections recommend that the federal government build capacity in Indigenous communities by providing “adequate and ongoing” program funding, administrative support and infrastructure to enable early responses to requests for consultation.

“We also support improving how assessment and regulatory processes recognize Indigenous jurisdiction, laws, practices and governance systems, and incorporate them into IA and regulatory decision-making. It is critical that the regulatory processes recognize the importance of Indigenous peoples’ participation and Indigenous laws, practice and governance systems.”

The submission also responds to a discussion paper dealing with the federal government’s review of the National Energy Board and on its plan to restore lost protections and incorporate safeguards under the Fisheries Act.

The discussion paper, which outlines legislative policy and program changes to restore public trust in the NEB, and lost protections of fish and fish habitat, raises a lot of questions, the Sections says, beginning by failing to explain the legislative framework for making the changes.

“While the CBA Sections commend the federal government for continuing to engage stakeholders who will be affected by changes to the federal government’s IA and regulatory review process, we are concerned that the limited detail in the discussion paper creates challenges for stakeholders who wish to provide further input on the proposed changes. If input from stakeholders is to be meaningful, it must be informed engagement that occurs before legislative, policy or program changes are made.”

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