The Power of Perspectives

The Canadian Bar Association

Kim Covert

Duty to consult: Reviewing the environmental assessment process

January 10 2017 10 January 2017

The federal government’s attempts to balance the interests of business, the environment and Indigenous peoples in the environmental assessment process have met with varied success, depending on your area of particular interest.

The government has established an expert panel to review the environmental assessment process. A working group made up of members of the Environmental, Energy and Resources Law Section and the Aboriginal Law Section prepared a submission that was presented to the panel in Vancouver in December. Tony Crossman, who appeared before the panel for the CBA, also followed up by letter with a response to three particular questions he was asked by the panel.

The CBA submission made a total of 33 recommendations for modernizing the process, underlining the importance of the Canadian Environmental Assessment Act, 2012, as well as sufficient funding and resources.

“The CBA Sections agree that the goal is to develop an (environmental assessment) process that incorporates scientific evidence, protects the environment, respects the rights of indigenous peoples and supports socio-economic growth,” the sections say.

First of all, the submission suggests, the purposes and role of federal environmental assessments need to be strengthened or amended, including, in terms of communicating with Indigenous peoples, “explicitly recognizing the requirements of section 35 of the Constitution Act, 1982, and the process of fair dealing and reconciliation between Aboriginal Peoples and the Crown.”

Ensuring that Aboriginal Peoples have meaningful consultation and participation in environmental assessments ahead of any project that might affect their territory is a primary focus of the submission, as is ensuring that environmental assessments be carried out in an efficient and cost-effective manner.

For example, the government should give additional guidance on the types of projects to which CEAA 2012 is intended to apply. If a provincial study is already underway, the federal assessment should defer to it unless there are questions at issue which are in the federal government’s jurisdiction.

As well, to cut back on up-front costs, “it would be more efficient for all parties if the Canadian Environmental Assessment Agency first considered whether the project should proceed (with the level of information submitted at this state limited to what is needed for that preliminary determination) and then required more detailed information at a later stage of the permitting process to determine further design and mitigation requirements.” Later processes would be focused on how the project should proceed, not on whether it will. “Regulators at this stage should not have the ability to directly or indirectly prohibit the project from proceeding.”

In terms of who gets to participate in the environmental assessment process, the Sections say the current opportunities are “generally inadequate, and are failing the public, proponents and decision-makers.”

The Sections would modify the “interested party” test to allow members of the public able to convey information about local matters to participate, and to allow those who can provide relevant expertise or information to participate as interested parties.

“Adequate funding of interested parties, including indigenous groups, is a key precondition for robust environmental assessments that result in decisions ‘based on science, facts and evidence, and serve the public’s interest’,” the Sections say.

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