Firelight’s Thoughts on Rapidly Changing Environmental Assessment Processes in Canada

By George Van

The future of environmental assessment in Canada has been a hot topic of discussion in recent weeks here at the Firelight Group. The April 5th release of The Final Report of the Expert Panel for the Review of Environmental Process in Canada, coupled with our continuous participation alongside Indigenous communities currently engaged in EA processes has given rise to much well-informed discussion between our offices and amongst staff and directors. Director Alistair MacDonald, Senior Researcher Lindsay Galbraith, and Senior Regulatory Advisor Trefor Smith have been particularly engaged in reviewing the Report and sharing their views and comments with other staff. In this post I will provide some of the observations and opinions shared amongst Firelighters in recent discussions.

First, some background on environmental assessment processes in Canada.

Environmental assessment (EA) in Canada is used to predict the effects on both people and the environment of proposed projects before they are carried out, to minimize and avoid adverse environmental effects before they occur, and to incorporate environmental factors into decision making. EA has grown over time to encompass the assessment of project-caused infringements on Indigenous rights and interests, including use of lands and resources for traditional purposes. In recent years, the credibility of EA as a precautionary planning tool has been undermined by its inability to fully and consistently consider the scope of effects on Indigenous rights. Its credibility has been further hampered by the EA bodies’ (federal and provincial) authority to unilaterally issue EA decisions, oftentimes seemingly without regard for Indigenous interests or inputs.

Building Common Ground: A New Vision for Impact Assessment in Canada is the final report commissioned by the Federal Government to review Federal environmental assessment processes. Its findings suggest that an assessment process that is transparent, inclusive, informed, and meaningful can deliver better projects, more benefits, and can contribute positively to Canada’s sustainable future.

Discussions at Firelight have examined the Report’s recommendations and gaps, and their implications for the Indigenous groups that we work with in EA. Below are some of the key points in our discussions regarding the Report’s recommendations:

• Recommendations likely to see benefits for Indigenous peoples if adopted include, among others:

  • The establishment of a structured planning phase at the outset that is not controlled by the proponent.

  • Shifting beyond just “impacts” to “benefits” and “net gains” approaches.

  • Legislating the increased incorporation of Indigenous knowledge.

  • The explicit inclusion of Indigenous rights impact assessments.

• Discussions must occur, before legislation is tabled, to provide much greater clarity on how sustainability will be assessed, how Indigenous rights will be assessed, how Indigenous knowledge will be prioritized, and how the Crown will take over the bulk of assessment work from proponents.

• Reducing the role of proponents in impact assessments is a strong message throughout the document. While this would likely have benefits in terms of levelling the playing field for submission of information that guides decision-making between proponents and Indigenous communities, clarifying the role of proponents in a revised impact assessment process has to be a priority, as this will likely require the government to commit many resources to leading this work.

• The Report is silent on some key issues critical to Indigenous groups, including but not limited to:

  • The need for Elders advisory committees (similar to the roles of “Chief Science Officers”, but for Indigenous knowledge. See this analysis of the Porcupine Gold Mine in Ontario).

  • Indigenous rights as a 6th pillar alongside the five pillars of “sustainability;” how it will be considered in decision-making.

Overall, the Report is an excellent diagnostic tool that recognizes the paramount importance of greater Indigenous sovereignty moving forward, and the responsibility of the Federal Government in supporting this change. However, an accurate diagnosis should not be confused with an effective cure. One of the most important messages we have encouraged the communities we work with to share with the Federal Government, which is now initiating consultation on how to alter their EA process, is that the Expert Panel’s report is the 138th expert report related to better impact assessment for Indigenous Canadians. The Crown owes the duty to consult equally on all of the recommendations made by 137 Canadian Indigenous groups to the Panel and the Crown, not merely on those recommendations adopted by the Panel.

All told, the EA process in Canada is likely to undergo a transformation that will see it be more informed, inclusive, transparent, and meaningful. The Firelight Group is committed to being at the forefront of environmental assessment practice and methodology, and will continue to lead innovative and effective environmental assessment support for Indigenous groups and local communities.

The Firelight Group provides support to communities through all stages of environmental assessment processes, and provides the research and analysis that communities need to make informed decisions and effect change. Our recent work includes providing support to nine separate Indigenous groups on the Federal EA Review process, and multiple EAs in BC, Alberta, the Northwest Territories, Saskatchewan, and Ontario.

Forthcoming will be another blog piece on the related National Energy Board Modernization Panel report, which was released the week of May 15th, 2017.