Common Failings of EA at the Core of the Enbridge Northern Gateway Court Ruling: Part 2
Part 1 of the blog post discussed the recent Federal Court of Appeal ruling that overturned Canada’s decision to approve the Enbridge Northern Gateway Project. [i] The focus of the discussion was on the common failings of environmental assessment. Part 2 explores how these shortcomings are being addressed today and what opportunities may be available to begin to address them.
How are these failings of EA being addressed?
Since Cabinet issued their decision on Enbridge Northern Gateway in 2014[ii] – the same year the Tsilhqot’in Supreme Court decision was issued – new environmental assessment (EA) approaches have been emerging in BC that involve more consensus-based approaches between First Nations and the Crown, and between Proponents and First Nations.
Both approaches use collaboration to assess impacts on rights and interests and design of appropriate measures to avoid or reduce impacts. For example, some Nations are co-authoring assessments with the Proponent for Aboriginal rights and a variety of environmental and cultural values and interests[iii], while others are working on implementing agreements with the Province of BC to conduct EAs for major projects and managing cumulative effects using collaborative approaches[iv].
What would happen if consensus is not reached in these collaborative approaches is not yet clear. However, it’s a step in the right direction for First Nations to hold the Crown to account and avoid these failings in the future.
This recent court decision underlines the importance of EA – it is the central process used by the Crown to discharge their duty to consult First Nations in relation to major projects.
Opportunities for change
The federal government recently announced they would form an Expert Panel to review the process. According to the draft terms of reference, the Panel will “consider the relationship between environmental assessment processes and the Aboriginal and treaty rights of Indigenous peoples and reflect the principles outlined in the United Nations Declaration on the Rights of Indigenous Peoples” and will “consult with Indigenous organizations, groups, communities, and individuals during its review.” The draft document states that the Panel’s report with recommendations to the Minister of Environment and Climate Change will be completed by January 31, 2017.
These changes will have implications for the consultation process – a “duty that is grounded in the honour of the Crown” and “forms part of the process of reconciliation.”[v] It will be important for our clients to leverage this potential opportunity to influence this process and begin to address the flaws in the current system. Input is currently being sought on the draft terms of reference for this Expert Panel review until July 20, 2016.
Firelight provides policy, governance, regulatory and EA support – including assistance on developing input to public policy consultations in BC and elsewhere.
For further information, contact:
Lindsay Galbraith, Senior Researcher: Environmental Assessment Support
Alistair MacDonald, Lead: Environmental Assessment Support
[i] Full text of the decision is available online here: http://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/145744/index.do
[ii] You can read the cabinet decision and find the Joint Review Panel report on the Enbridge Northern Gateway Project Joint Review Panel federal government website, here: http://gatewaypanel.review-examen.gc.ca/clf-nsi/hm-eng.html
[iii] See, for example, the co-authored assessment report for the proposed Baldy Ridge Extension Project between Ktunaxa Nation Council and Teck Resources (C1-C8; C10-13 only), here: http://a100.gov.bc.ca/appsdata/epic/html/deploy/epic_document_413_39797.html
[iv] See, for example, the Carrier Sekani Tribal Council Collaboration Agreement, here: http://www2.gov.bc.ca/gov/content/environment/natural-resource-stewardship/consulting-with-first-nations/first-nations-negotiations/first-nations-a-z-listing/carrier-sekani-tribal-council
[v] Paragraph 171 of the decision.