Early in its mandate, the Liberal government committed to make substantial improvements to Canada’s system of environmental assessment, in order to regain public trust in how major projects are considered and approved. Specifically, it undertook to restore robust oversight and thorough environmental assessments; ensure that decisions are based on science, facts and evidence, and serve the public’s interest; and provide ways for Canadians to express their views and opportunities for experts to meaningfully participate.
Until 2012, Canada had a system of federal environmental review that did all of those things, more or less well. The Canadian Environmental Assessment Act (1992), as modified over time by judicial decisions, policy and practice, provided for reasonably open and effective environmental assessment of major projects. Much was accomplished during that 20-year period, but much also remains to be done to ensure that the current government’s stated objectives are effectively realized.
Inextricably entwined with these issues is the Trudeau government’s commitment to implementing the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which among other commitments affirms Indigenous peoples’ right to free, prior and informed consent. As the October 19, 2017 withdrawal of Assembly of First Nations regional chiefs from talks on the new environmental assessment regime illustrates, it is far from clear how this can be achieved across the many fields of interaction with Canadian governments. The regional chiefs objected to an apparent contradiction in the federal position: alongside the government’s overall commitment to partnership and dialogue, federal officials sought to retain control of decision-making about how dialogue would take place.
Effective and institutionalized Indigenous participation in line with UNDRIP must indeed be an essential element of a renewed system of environmental assessment. Our purpose here is to consider the critical ways and means of achieving sound and democratic decision-making in environmental reviews that respects both public participation generally and Indigenous rights specifically.
The perceived need to regain public trust and restore robust oversight over major resource projects was due to the Harper government having gutted that system in 2012, chiefly by restricting public participation and subsuming the environmental review of energy projects under the National Energy Board. The board proceeded to conduct public reviews of major oil pipeline projects that were widely seen as inept and illegitimate (Gateway, Trans Mountain and Energy East).
Critical to rehabilitating Canada’s environmental assessment system will be restoring and strengthening the public, independent review of major projects filed for regulatory approval. Major projects are controversial because of their size and scope and, more importantly for the purposes of assessment, because of their novelty in the receiving environment. Public concerns arise because such projects may bring unintended, unanticipated and irreversible effects, and that these will be borne disproportionately by those for whom project benefits will be minimal.
Critical to rehabilitating Canada’s environmental assessment system will be restoring and strengthening the public, independent review of major projects filed for regulatory approval.
For these reasons Canadians want and expect a transparent major project review process that is open to their intervention. They expect the process to produce a credible and understandable evidence-based analysis of project impacts — and of how these impacts might be enhanced, minimized or avoided altogether. To be credible in the public eye, project review must be independent. This means that it cannot be part of an internal government review system subject to regulatory capture, or subject to a closed negotiating process among governing elites and industry. Major projects must be subject to a public review that is broadly accessible and rigorously impartial.
Central to our environmental assessment system has been the review of major resource development projects by independent panels, under the auspices of the Canadian Environmental Assessment Agency (CEAA). While there is more to the overall federal environmental review process than major project review, these independent panel reviews are the flagships of the system.
Project review panels are charged with considering a broad spectrum of potential project effects — environmental, social, economic, and health — in combination, beyond the remit of any single government agency or the scope of any specific legislation. Their focus is primarily regional: what will be the effects of the project on the likely zone of impact? Will people there be better off or worse off? Their public hearings provide a forum for hearing public concerns and for examining technical and scientific evidence. Effective provision for intervenors — whether public interest groups or government agencies — as well as for public participation, is essential.
A review panel’s report must provide an evidence-based assessment of the impacts of the proposed project. It must explain whether and how it could make a durable and equitable contribution to local and regional well-being, and it must recommend conditions on approval that will eliminate or mitigate adverse effects. Unless the panel rejects the project as irremediably adverse, its report must provide guidance to downstream regulators, as well as a monitoring and follow-up program whose purpose is to ensure that impact predictions are verified and that prescribed mitigations are implemented and effective.
Review panels are independent and advisory. They may be appointed by the federal government alone, or jointly by the federal, territorial, provincial or Indigenous governments or authorities. Governments must formally respond to panel reports by indicating whether they accept, reject or modify each recommendation directed to it. The receiving governments are then supposed to direct their responsible authorities to implement these recommendations, and their regulatory agencies (such as the NEB) to adopt them as permitting conditions binding on the project operator.
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Review panels are not standing bodies. Each is created on a one-off basis. Members are appointed on the basis of familiarity with the type of project and/or the region in which the project occurs, and at least some should be able to bring local or Indigenous knowledge to bear. They are not required to have had legal, technical or academic training. As a consequence, however, they must be provided with the means to hire specialized support as needed.
The current government initiative provides a window of opportunity not only to restore the best of what CEAA 1992 provided for, but also to strengthen its key provisions and expanding its scope. Proposals for improvement and innovation received from the public include:
- The addition of regional and strategic reviews in addition to project-specific reviews. Regional reviews could provide an improved basis for understanding the potential cumulative effects of a specific project in combination with other activities in the zone of impact. Strategic reviews could provide guidance on larger issues such as energy and climate change policies whose resolution is beyond the purview of project-specific reviews.
- A key test of the project’s contribution to sustainability (i.e., durable and equitable contributions to public well-being) would be added to the current test assessing whether the project would have significant adverse effects.
Important as these objectives are, new environmental assessment legislation must above all restore the central place of independent review panels in assessing major projects. As the flagships of the system, these panels must be open, evidence-based, transparent, and above all independent. Their credibility depends on these factors. They must be visibly separate from and independent of the responsible authority, and most importantly not be agents of the Crown either in law or in public perception.
There must be no suspicion that the panels are merely ancillary to largely internal or closed proceedings within ongoing responsible authorities. An environmental assessment is not a regulatory review, and it cannot be substituted by or subsumed under such bodies as the National Energy Board, whose primary remit is to assess whether the development will be in the national interest.
Mandatory time limits, introduced in 2012, should be abandoned. A review panel must do its job according to the principles of natural justice, including procedural fairness and transparency. It must also fulfill (but not exceed) its mandate as provided by the parties that established it. So although a review panel’s primary product is its report, it must also to pay attention to process. Public participation and testimony are essential, and the panel must report what it heard. These considerations do not prevent panels from establishing rules of procedure that provide reasonable limits on participation and time. Evidence, in evidence-based reviews, lies in its substance, not in the frequency of the interventions.
Monitoring and follow-up programs, in addition to verifying impact predictions and mitigations as noted above, are crucial to ensuring that unanticipated adverse effects are detected and addressed. These programs also ensure that there is a prescribed course of action for correcting significant adverse effects if they occur.
These objectives are the fundamental basis for ensuring that the review process actually produces tangible results with respect to environmental integrity and sustainability. Determining whether a significant adverse impact is occurring, and applying corrective measures, requires rigorous and testable hypotheses about project cause and environmental effect, and the identification of measurable indicators that could confirm those effects and provide triggers for corrective action, at any point over the entire life of the project. If effective monitoring and follow-up do not occur, then the public benefit of reviewing major projects is much reduced.
Major project reviews are an important aspect of public decision-making about initiatives that have the potential to transform regional social and economic conditions. Shaped by practices developed in Canada over the last 50 years, major project reviews are a valuable social innovation that advance the opportunities for meaningful democratic decision-making. To serve this end, they require an unusual blend of technical expertise, public dialogue and far-sighted common sense — organized by rules and procedures that sustain a balance among these factors.
Restoring the credibility of Canada’s environmental assessment system requires that new legislation provide for a means of ensuring that governments can be called to account for implementing their commitments over the long run. Without this, panel reviews are mere performance, soon forgotten.
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