In this post, I will share my preliminary reflections on the Expert Panel Report on the reform of the federal environmental assessment process. The report, entitled: Building Common Ground: A New Vision for Impact Assessment in Canada, was released by Minister McKenna on April 5, 2017 and is available at: http://eareview-examenee.ca/. It is open for public comment until May 5, 2017. The report is the result of an open and thorough public engagement process that heard from an incredible number of Canadians with a keen interest in EA. The Panel offered an impressive range of engagement opportunities, from formal presentations to workshops, special sessions for indigenous communities, and opportunities for written submissions. It is clear from the report that participation was wide and varied, and that the Expert Panel gave careful consideration to the perspectives it heard.
The report ultimately recommends a fundamental overhaul of the current process under CEAA 2012 (for an assessment of CEAA 2012, see https://ssrn.com/abstract=2104336). The report is too long for a comprehensive assessment in this post, so I will limit myself to brief comments on the following design elements of the proposed new assessment process:
1. Application & Triggering
2. Process & Institutions
3. Jurisdictional Cooperation
4. Use of Regional & Strategic Assessments
5. Scope of Assessment
6. Public Participation
7. Role of Indigenous Peoples
8. Post EA (Follow-up) Process
1. Application & Triggering
The Expert Panel has recommended the following approach to triggering of project assessments. First, the project list for CEAA 2012 is to be expanded to include all projects that are likely to adversely impact matters of federal interest that is consequential for present and future generations. As discussed in more detail below, adverse impacts are to be considered from a sustainability perspective. Projects not on the list should be assessed on the same basis, based on whether they are likely to have a consequential impact on federal matters. The Expert Panel proposes a petition process for projects not listed, and suggests that the test should be a legal test with no discretion. The discretion on whether an assessment is actually required for projects that are listed or otherwise meet the triggering test is to be eliminated.
Overall, the proposed project triggering process seems workable. A key question will be the threshold for what is considered “consequential for present and future generations”. This will determine both what projects get added to the initial project list, and what projects not listed still require an assessment. The Expert Panel clearly recommends a legal test without discretion. While this is appropriate, it will require a clear legal test, and does raise the question whether there should be an opportunity to appeal decisions to an appeal body, as the alternative could be lengthy delays as a result of court proceedings challenging the application of the legal test.
Another challenge with the implementation of the proposed triggering process will be how to make appropriate determinations about the consequence of a proposed project without the benefit of an impact assessment. The key will be to come up with a meaningful legal test that can be applied based on information readily available at the early planning stages of a proposed project. To illustrate, the role of cumulative effects in making the triggering determination needs to be clear, particularly for determinations on projects not on the initial list. Do we consider the consequences of a proposed project in isolation of other activities and impacts, or will there be some consideration of cumulative effects in determining whether a proposed project’s impact is consequential for present and future generations? Does it matter whether a project would foreclose future development in the region because it uses up the remaining carrying capacity of the receiving environment?
There is somewhat limited guidance in the Expert Panel Report on the application of regional and strategic assessments. The basic approach for regional assessments is to focus on federal lands (including marine areas), as they do not offer jurisdictional challenges for federal decision makers. For regions outside federal land, the Expert Panel suggests a cautious approach, with a focus on cumulative effects on federal matters. The proposal for triggering of strategic assessment is largely reactive, with a focus on the review of existing and new policies, plans and programs to understand their impact on project assessments.
My main concern with the proposed approach to the application of regional assessments is that it does not offer much in terms of new incentives for provinces to cooperate in carrying out comprehensive regional assessments. Unfortunately, unless provinces are motivated to participate in cooperative regional assessments, this may mean that the regions in most need of regional assessments will be least likely to have one carried out.
With respect to strategic assessments, the proposed approach is useful, but incomplete. In addition to reviewing existing and new plans, programs and policies to understand their implications for project EAs, there is an urgent need for proactive SEAs that serve to fill policy gaps that become apparent during project assessments. The most obvious examples are sustainability policies for new industries, the need for policy changes in light of important scientific developments, and out-dated policies that prove to be unworkable during a project assessment.
2. Process & Institutions
The Expert Panel has recommended a complete overhaul of the federal assessment process and the institutions responsible for carrying it out. An independent Assessment Authority is to oversee the process. Multi-interest, project specific committees are to be set up to plan the process and carry out the assessments. The Expert Panel proposes a focus on cooperation and on consensus-based decision making, with the Assessment Authority and Review Panels expected to step in to make decisions where consensus cannot be reached on important issues. A sustainability framework for the assessment and the project decision is to be developed for each project assessed, so that it is clear up front how the ultimate project determination (whether the project makes a net contribution to sustainability) is made. Final project decisions are to be made by the Assessment Authority or the Review Panel, with a limited right to appeal to cabinet. The preferred approach for project decision making is a collaborative consent based approach with indigenous peoples involved on par with other governments.
Other key elements of the new approach include the preparation of the Impact Statement (currently called environmental impact statements or EISs) by the Assessment Authority rather than by the proponent, and a focus on the rigour of the analysis in the impact statement, on a precautionary and evidence based approach to analysis and decision making, on the use of traditional knowledge on par with western science, and on full transparency. The Expert Panel highlights the need to rebuild federal science capacity to properly support this approach to project assessments.
There are many aspects of this approach that are commendable. The focus on cooperation and consensus, the emphasis on science, precaution and transparency, and the efforts to de-politicise the process, while leaving the ultimate decisions in the hands of elected officials are all worthy of support. They key question is how to ensure the detailed design of the proposed institutions and processes results in an effective, efficient and fair process. Proper legislative guidance to the Assessment Authority through clearly stated goals, principles, and decision-making criteria will be key. A clearly and narrowly defined right to appeal to cabinet on the basis of errors in the sustainability decision (meaning failure to properly apply the decision making criteria established at the outset of the process) will also be important for the functioning of the proposed approach.
A recurring question throughout the proposed process is whether there is a need for an appeal body, other than to cabinet and through the courts. There will be critical decisions at the triggering, scoping, process, and assessment stages. These all occur well before the final project decision, the only decision with a clear right to appeal (to cabinet). In the absence of an appeal body, disputes over all these decisions will inevitable end up in the courts, especially in the early years of this new process. An appeals tribunal would offer an opportunity to have these issues resolved in a much more expedient manner, and to have the issues heard by an appeals tribunal with more relevant expertise than is possible with a generalist court such as the Federal Court of Canada, a court that has demonstrated its reluctance to review environmental decisions.
3. Jurisdictional Cooperation
The Expert Panel is clear in recognising and endorsing cooperative assessments involving all affected jurisdictions, indigenous communities and other key interests (such as environmental groups and local communities) in the design and implementation of the assessment as the preferred approach to jurisdictional cooperation. This approach stands in contrast to delegation, substitution, equivalency and separate parallel assessments, most of which the Expert Panel rejects as unviable.
The main vehicle for the proposed cooperative approach is a multi interest planning committee to design the cooperative assessment process. The basic idea is that each jurisdiction contributes to the collective understanding of the project’s contribution to sustainability. A cooperation agreement (which the report suggests can take different forms) is to be developed by the planning committee early in the process. It is clear that the success of joint review panels in the past was a significant driver for the Expert Panel’s overall approach, recognizing that the cooperation achieved in joint review panels has served to produce the most efficient, effective and fair assessments under the current and previous legislation.
Of the alternatives to the cooperative approach, the Expert Panel rejects equivalency outright and does not endorse any of the others mentioned, with the exception of substitution. It proposes that substitution be included as an option, but only on a project by project basis. The appropriateness of substitution would be decided on by the planning committee or, in the absence of consensus at the committee, by the Assessment Authority. The decision to permit substitution would be on the basis of the “highest standard of assessment” and based on legislative criteria (see page 25 of report for proposed criteria).
The overall approach proposed by the Expert Panel to jurisdictional cooperation is constructive. The clear preference for cooperative assessments over delegation, substitution, equivalency and separate processes is commendable, as is the recognition of the value of actively engaging all jurisdictions and other actors in the design and implementation of the cooperative assessment process. The cooperative approach offers the best opportunity for an efficient, effective and fair assessment process, with all other options risking undermining more or more of these fundamental elements of a good assessment process (https://ssrn.com/abstract=2839617).
The retention of the substitution option is unfortunate, but politically understandable, as it may be key to bringing some provinces on board with the proposed new federal assessment process. A key question will be whether there will be adequate constraints on the use of substitution. Will its application be largely limited to situations where the planning committee reaches consensus that substitution is appropriate for a specific project? Will the Assessment Authority be willing to order substitution over the objection of members of the planning committee? How actively involved will federal decision makers be in a substituted process? How strong will be the oversight to ensure a substituted process meets the highest standard of assessment and the legislative criteria? Will there be an opportunity to appeal in case the substitute process fails to meet the legislative standard? Exactly what is the relationship to be between the collaboration agreements, the planning committee, the consensus based approach, and the substitution option?
4. Use of Regional & Strategic Assessments
With respect to regional and strategic assessments, the Expert Panel endorses a tiered approach whereby regional and strategic assessments serve to inform project assessments, with the goal of improving the efficiency, effectiveness and fairness of project assessments and project decisions (For a more detailed discussion of this approach and its role in improving cumulative effects assessments, see: https://ssrn.com/abstract=2480346, and https://ssrn.com/abstract=2774579). Having established this as the overriding goal, the Report then discusses the respective roles of regional and strategic assessments.
The use of regional assessments is recommended primarily in case of cumulative effects on federal lands (including marine areas). Beyond federal lands, regional assessments are contemplated where there are cumulative effects on “many federal interests”. In such cases, the preferred approach is a cooperative approach with other jurisdictions. In the absence of a cooperative regional assessment, the proposed scope of the assessment would be quite limited. The Expert Panel proposes a schedule for the development of regional assessments based on where they are most needed in light of current conditions and likely project proposals.
The approach to federal regional assessments proposed by the Expert Panel is helpful, but overly cautious when it comes to assessments beyond federal lands. This is unfortunate, as many of the regions of the country who are in desperate need of a regional assessment (with full consideration of future development scenarios, alternatives, and a full range of economic, social, environmental, health and cultural considerations) are outside federal lands.
While there are clearly limits on federal decision-making authority beyond federal lands, the Expert Panel seems to have failed to appreciate the value of and the clear federal jurisdiction over the information gathering function of regional assessments. In short, in order for federal decision makers to be able to make sound decision at the project level about a project’s contribution to sustainability (the proposed new test for project decisions), the results of a comprehensive regional assessment that is based on a reasonable range of future development scenarios, is invaluable. The issue is not whether the federal government has jurisdiction over all the information needed for a thorough regional assessment, the issue is whether this information will be helpful for project decisions that are within federal jurisdiction.
The proposed approach can be partially salvaged by ensuring that there are good incentives for provinces and other affected jurisdictions (such as municipalities and indigenous communities) to carry out cooperative regional assessments with the federal government. Unfortunately, a federal approach that is as timid as proposed by the Expert Panel does little to incentivise provinces to participate in cooperative regional assessments. Retaining the option for the federal government to carry out a comprehensive regional assessment on its own, even outside federal lands, will be critical to make regional assessments a viable tool in the federal assessment toolkit.
There is as much reason to be concerned about the proposed role for strategic assessments. What is clear is that it is to be used to link existing and new federal policies, plans and programs to project assessments, to help those engaged in project assessments understand the implications of federal policies, plans and programs for the projects being assessed. An example specifically addressed is the need for a strategic assessment of climate change, to determine how federal climate policies, plans and programs should factor into the assessment of projects and into project decisions (for proposals on possible triggers for strategic assessments, see https://ssrn.com/abstract=1660403).
While the proposed application of strategic assessments to existing policies, plans and programs is helpful, it is only one part of the overall value and importance of strategic assessments. Arguably as or more important is its use to fill policy gaps, particularly gaps identified during the course of project assessments. Examples include out-dated policies, lack of federal policies on important issues, new industries that had not previously been considered, and new scientific developments that make the existing policy framework unworkable at the project level. Strategic assessment can also play an important role in updating regional assessment in light of new developments.
With respect to the scope of assessments, the Expert Panel has recommended a natural progression of a transition that has been underway for a long time, a shift from a focus on biophysical effects to a comprehensive assessment of the full range of impacts, benefits, risks and uncertainties. The Expert Panel proposes the formal inclusion of the full range of environmental, social, economic, health and cultural considerations as part of a shift from environmental to sustainability assessments. A logical extension of this approach is a project decision that considers whether the project will make a net positive contribution to sustainability. The Expert Panel also recommends improvement to the consideration of alternatives and cumulative effects. This is to be achieved through the use of regional assessment, but also through improvements at the project level.
The proposed change in scope is long overdue, and among the most significant contributions of the Expert Panel to the reform of the federal assessment process. The recognition of the need to improve consideration of climate change, cumulative effects and alternatives is also commendable. To implement the Expert Panel’s vision, further work will be needed. Of course, much work has been done and is ready to be applied to make the sustainability approach proposed by the Expert Panel work (see, for example, the application of a sustainability approach in case of the Lower Churchill Project: https://ssrn.com/abstract=2480368). On climate change, the recommendation for a strategic assessment will be key, as this process is needed to give appropriate direction to the project level on how to ensure individual projects contribute to the transition of the Canadian economy in line with our international commitments and national policies.
With respect to cumulative effects, the link between regional and project assessment requires further work, including how regional assessments can ensure appropriate cumulative effects assessments at the project level, and what happens at the project level where the results of a regional assessment are not available. Finally, more work is required on alternatives assessments, including the selection of appropriate alternatives, and the consideration of alternatives through the lens of societal needs, goals and objectives. This should be facilitated through the shift from proponent-centered assessments to having the Assessment Authority holding the pen.
6. Public Participation
The Expert Panel has clearly recognized the important role of the public in the assessment process, including the need for early engagement, the need for the process to be open to all members of the public, and for meaningful engagement throughout the process. The panel has also emphasised the need for transparency of the process, analysis and decision-making throughout, and the need to ensure the public has access to information beyond what has been provided in the past, such as baseline data from previous assessments and monitoring results after project approval. Finally, the focus on collaboration and consensus is encouraging, as it provides opportunities for mutual learning and meaningful engagement.
While the general approach to public participation is constructive and in line with current thinking, the report lacks detail. How will community, environmental and indigenous interests be represented on the project planning committee? What role will the public have in assessments that do not proceed to joint review panels? Will there be opportunities to ensure decisions made are consistent with legislative direction through appeals? Will there be opportunities to design public engagement processes that are culturally appropriate given those seeking to participate? Will public engagement be designed to encourage mutual learning and consensus building? Will there be adequate time and resources for effective public engagement? What role and support will the public have in regional and strategic assessments?
7. Role of Indigenous Peoples
The Expert Panel has clearly recognized the need to rethink the role of indigenous peoples, communities, and governments in the assessment process. In particular, it has emphasised:
- The need to assess a proposed project’s impact on asserted and established indigenous rights and title (panel states that this should be done by indigenous groups themselves and contributed to the assessment process).
- The need to incorporate indigenous knowledge fully into assessment, which are currently dominated by western science.
- The need to encourage more indigenous participation in EA.
- The need to consider the role of the assessment process in implementing Canada’s commitment to the UN Declaration on the Rights of Indigenous Peoples (UNDRIP), and in particular indigenous decision making in line with their own institutions, laws and customs, and based on the principle of prior informed consent.
- The need to recognise that prior informed consent means impacted communities have the right to say no, but must exercise this right reasonably, and the need to design an assessment and decision making process that seeks the consent of affected indigenous communities.
- The need to carefully consider the Assessment Authority’s role in the federal Crown’s “duty to consult”.
- The need to build the capacity of indigenous communities to participate effectively in the assessment process.
Ensuring an appropriate and effective role for indigenous peoples in the new assessment process is a complex task. The ideas put forward by the Expert Panel are commendable. At the same time, they raise as many questions as they answer, and more clarity is needed in many areas explored by the Expert Panel. For example, what happens when consensus between indigenous and other governments involved in a cooperative assessment is not possible on an important aspect of the design or implementation of the assessment process? How will determinations be made as to whether an indigenous community has exercised its right to withhold consent reasonably? What happens if there is disagreement on this point between an indigenous community and the Assessment Authority? What if there is disagreement on whether the community is affected by the project? How do we ensure indigenous communities have the capacity to effectively participate in assessments while adhering to the principles of timeliness and efficiency promoted by the Expert Panel?
8. Post-EA (Follow-up) Process
A historically neglected but critical part of any assessment process is what happens after project approval to ensure the project is implemented in the manner envisaged during the assessment, to ensure adjustments are made to regulatory requirements in case predictions about project impacts turn out to be inaccurate, and to ensure we learn from past assessments to improve future assessments. All too often, these critical elements are left to project regulators without formal accountability and without ongoing coordination or transparency.
The Expert Panel makes some important recommendations in this regard. Key among them are recommendations for improved transparency, such as the sharing of monitoring and reporting results with the public. The Expert Panel is also recommending enhanced compliance through better coordination among participating jurisdictions.
As with other elements of the proposed approach, more detail will be needed to ensure the vision is effectively implemented. Tracking of the implementation of terms and conditions, on an annual basis, with clear allocation of accountability to the appropriate public authority would be a key element of an effective compliance strategy. The power to amend terms and condition, in particular when predictions about impacts turn out to have underestimated negative effects, are also key. Finally, assessing the analysis carried out during the assessment against actual impacts tracked during the follow-up stage will be critical for improving assessment analysis over time.
The Expert Panel Report offers a blueprint broadly consistent with proposals for next generation federal assessment (for a detailed proposal for next generation EA, see https://ssrn.com/abstract=2670009). It key components, including its sustainability focus, its emphasis on cooperative and consensus based approaches, its recognition of the value of regional and strategic assessments, and its focus on the important role of indigenous peoples in designing and implementing the process and in making decisions at the conclusion of the assessment, are commendable. In light of the extensive engagement of industry, governments, indigenous communities, community and environmental groups, academics, and individuals, it would be reasonable to expect that the federal government will accept the basic direction proposed and focus its attention on how to make this overhaul of the federal assessment process work.
A key limitation of the report lies in the generality of some of its recommendations. Another area in need of more work is the incomplete treatment of the opportunity to utilize regional and strategic assessments to improve the efficiency, effectiveness and fairness of project assessments. Otherwise, what remains is to work through the details, as the details will ultimately determine whether the opportunity to design and implement a federal assessment process that is capable of moving Canada toward sustainability is realized.
Professor of Law,
Associate, Marine & Environmental Law Institute