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On April 5, 2017 the expert panel appointed to review Federal environmental assessment issued its report Building Common Ground, A New Vision for Impact Assessment in Canada. The report presents an ambitious re-think of how Federal EA’s are conducted, and what they are intended to achieve. The panel’s recommendations – if implemented – will be the most significant overhaul of Canadian EA legislation since CEAA was enacted in 1992. Of greater interest to aboriginal communities, the Trudeau government’s response to the report will also offer a litmus test of its commitment to implementing the United Nations Declarations on the Rights of Indigenous Peoples (UNDRIP). The report’s recommendations are too transformative to be implemented through piecemeal amendments to the Harper-era CEAA, 2012. New legislation will be required, offering the Liberals the first opportunity to draft legislation affecting lands and resources that is consistent with UNDRIP.

In this post I’ll first discuss some of the panel’s key recommendations, and then focus on the report’s implications for aboriginal peoples and the opportunities and challenges it offers. My comments will of necessity omit or skim over important parts of the report, and interested readers should use the link above to read the whole thing.

From EA to IA

Building Common Ground proposes a fundamental transformation in both the process and content of Federal EA’s.   On the process side, it calls for the creation of an independent, quasi-judicial Impact Assessment Commission (IAC) tasked with conducting all Federal EA’s, which would be rebranded “impact assessments” or “IA’s”. The IAC would have both national and regional offices, and would assume all project assessment responsibilities previously held by the CEA Agency, the National Energy Board and the Canadian Nuclear Safety Commission. The IAC would be responsible for all phases of an IA, from an initial planning stage through to the preparation of the IA and decision-making. It would be statutorily mandated to verify the adequacy of studies used to support IA’s, and would have the power to hire its own experts or compel Federal scientists to provide information.

The IAC’s jurisdiction would be triggered in three ways: 1) a defined project list of projects requiring mandatory IA; 2) a power to initiate an IA of other types of projects not already listed; and 3) through a request by a proponent or other person to have an IA prepared. The panel recommends that, in all instances, Federal IA’s be limited to projects or activities that affect Federal interests in some significant way. The project list, for e.g., would include “physical activities or undertakings affecting one or more matters of federal interest” that have a “consequential impact”. Similar criteria would guide the exercise of the powers to initiate an IA for a non-listed project or activity.

While the IAC would make the final decision on each IA, it would do so through a collaborative process. The objective of IA, the panel emphasizes, should be to build shared understanding, collaboration and consensus. IA conclusions that are supported by consensus of IA participants will be recorded by the IAC in a final decision. Where consensus is not reached, a review panel would be appointed from within the IAC, and the review panel would make a final decision on non-consensus issues. Participants who disagree with the decision could appeal the decision to the Governor in Council (i.e. Cabinet), which would be required to provide written reasons for its decision.

On the content side, the report calls for a move away from looking at environmental impacts, towards a broader examination of a project’s contribution to sustainability. All impacts, both positive and negative, will be considered and assessed against five pillars of sustainability: environment, social, economic, health and cultural. Aboriginal traditional knowledge would be integrated into every phase of the IA process, and public participation would be statutorily mandated. While proponents would still play a key role in developing the studies that inform the IA, the IAC would vet the reliability of all IA information and prepare its own studies where required.

The panel deserves credit for having the courage to articulate a renewed vision for project assessment in Canada. The changes it proposes are not small, and have significant merit. A few reflections on the opportunities and challenges they present:

  • The creation of an independent IAC with the mandate to conduct the IA and vet – and even supplement – a proponent’s studies would be a welcome development. Proponents currently pay for the impact assessments and, whether it is acknowledged or not, influence their content and conclusions. Limiting that influence will go a long way to restoring confidence in the assessment process.
  • The removal of IA’s from the NEB and CNSC is also a welcome suggestion. The NEB’s regulatory role requires a close – many would say too close – relationship with the energy industry, and its appointees are frequently drawn from the ranks of that industry. Putting IA’s of energy projects in the hands of a independent IAC would help restore public faith in the credibility of energy project assessments.
  • The move to a five-pillar approach to sustainability assessment sounds good, but raises concerns. The broader economic and social (read “jobs and taxes”) benefits of large projects are often relied on to impose major environmental impacts and risks on local – frequently aboriginal – communities. Adopting sustainability criteria that give economic values co-equal status with culture and the environment may exacerbate this problem by statutorily entrenching a logic that enables sacrificing the local environment for “sustainable” economic benefits.
  • The panel fails to identify a workable guideline for deciding what should require a Federal IA. The Constitution dictates that a Federal IA must be connected to an area of Federal jurisdiction, so limits are required. However, the report uses vague and unworkable criteria to define how those limits should be set. It lists eleven areas of “federal interest” that may trigger an IA, including “Indigenous Peoples and lands”. Most aboriginal people would say that means the whole of Canada. It also references the power to require a Federal IA where there is a “consequential impact” with a potential multi-generational effect, and gives the example of a project in a “sensitive area”. Determining what qualifies as “sensitive” will not be easy and, of greater concern, the sensitivity of an area does not, by itself, bring it within Federal jurisdiction.

There is much more to say about Building Common Ground, but I will turn now to its implications for aboriginal peoples.

UNDRIP and the future of EA in Canada

The panel deserves credit for the thorough consideration it gives to how to enable aboriginal participation in IA’s, and for explicitly referencing UNDRIP as setting standards for meaningful and legally adequate aboriginal engagement. What is likely to be contentious, however, is its recommendations on how the UNDRIP principle of free, prior and informed aboriginal consent can be accommodated within a revised IA framework.

The panel recommends that aboriginal title and rights and treaty rights, as well as traditional knowledge, be recognized and incorporated into every phase of the IA process:

  • Where an aboriginal community has a defined project assessment process, the IAC should work with that community to establish a cooperative assessment process that fulfills the needs of both governments. Importantly, this recommendation is not limited to communities whose assessment powers are defined through settlement agreements.
  • It calls for co-management of “IA processes and natural resources” between the Federal government and aboriginal communities. If achieved, this would far exceed the current practice of seeking aboriginal input into a Federal controlled EA process.
  • It recommends that the IAC be statutorily mandated to fulfill the Federal Crown’s consultation and accommodation duties. This would help clarify the currently confusing Federal approach to consultation, where certain issues are addressed within the EA and others are excluded.
  • It recommends increasing capacity support to indigenous groups to enhance participation in project reviews, as well as developing long-term institutional capacity.
  • Traditional knowledge would be integrated into every phase of the IA, and protected from unauthorized disclosure or use.
  • The IAC would include indigenous representation, including on any panel review required to resolve disagreement over IA outcomes.

The above recommendations, while valuable, largely build on and improve existing practices within the CEA Agency or other EA bodies in Canada. It is on the issue of aboriginal consent that the panel proposes to break new ground. The panel acknowledges aboriginal consent to resource development on traditional lands as a core principle included in UNDRIP and grounded in s. 35 of the Constitution Act, 1982, and explicitly acknowledges the power of aboriginal communities to say “no”. However, it recommends that the power to say no be subject to limits.

The panel envisions Federal IA as a collaborative process aimed at getting to a shared aboriginal – Federal understanding of whether a project should proceed, and if so, how. Once this process is complete, the IAC would seek aboriginal consent. Where consent is given, agreed to terms and conditions would be included in the IA decision document.   Where consent is denied, the IA would go the review panel stage, and the review panel would have the authority to assess “whether the withholding of consent is reasonable”. If the review panel concludes the aboriginal community has not acted “reasonably”, it would presumably have the power to approve the project notwithstanding the absence of consent.

This is bound to be a highly contentious proposal. Many aboriginal peoples view UNDRIP as confirming a sovereign right, protected by s. 35 of the Constitution, to manage traditional lands. It is a management authority that is on the same footing as, not subject to, Federal authority. The panel’s approach will not satisfy adherents to this view. For those willing to consider a balancing process, the reasonableness standard is likely to be problematic. Reasonableness is a term with a long history of use in administrative law, and yet no objectively defined criteria. It is a legal standard that, practically speaking, rests in the eye of the beholder. This raises the question of how a “reasonable no” would be identified. Is evidence of irreparable harm to a valued environmental resource or aboriginal right required? Does reasonableness require aboriginal peoples to accept trading off their lands and traditions for benefits that flow to the broader society? And is reasonableness assessed within an aboriginal or dominant culture worldview? These are hard questions that will have to be asked if this proposal advances to legislative drafting.

As easy as it would be to criticize the panel for its efforts at reconciling free, prior and informed consent with Federal jurisdiction, some credit is due to the panel for having the courage to start the conversation. UNDRIP and its relationship to Canadian laws is a topic of ongoing controversy and great uncertainty. The panel’s approach to reconciling free, prior and informed consent with the Canadian constitutional framework may ultimately prove to not be the best one, but at least they have put some concepts out into the public domain for debate. Without that, we would remain stuck at the threshold, uncertain how to begin moving forward.

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