Contributed by Robert Lyman © 2017

A Summary of the Federal Government Discussion Paper

On June 29, 2017, the federal government announced the issuance of a discussion paper on the review of environmental and regulatory processes. Coming only a few months after the issuance of a report by the Expert Panel on Modernization of the National Energy Board, the discussion paper dealt with many of the same subjects and themes. Indeed, the discussion paper makes clear that many of the ideas described in the Expert Panel report have already been accepted in principle by the federal government and that the government has already set the broad course that it wishes to follow.

The purpose of this note is to summarize the most important elements in the discussion paper, especially as these relate to the development of climate change policy and its application to the Canadian energy economy.

In announcing the paper, Minister Carr stated that it was based on extensive consultations, Expert Panel Reports and Parliamentary studies over the past twelve months. This seems strange given that these “public consultations” received virtually no press attention. One wonders whether they were by invitation only. It certainly is clear and that a broad range of indigenous and environmental groups were consulted.

The paper states many of the same contentions as were made by the Expert Panel, namely that:

  • There is a need for greater transparency around the science, data and evidence supporting decisions and to ensure indigenous knowledge is sufficiently taken into account.
  • Protections to Canada’s fisheries and waterways are insufficient.
  • Indigenous peoples and the public should have more opportunities to meaningfully participate.

The explicitly stated assumptions are that: Canada’s environmental assessment processes need to be changed to regain public trust; opportunities for Canadians to participate in environmental assessment processes are too limited; information is difficult to access; indigenous knowledge is not fully considered; information presented by project proponents is not properly “validated”; individual projects are often reviewed without an understanding of the “broader environmental and development context”; decisions are not sufficiently explained; reconciliation with indigenous people and recognition of their rights has not been clear and consistent; and proponents and investors need a more predictable and fair process.

To address these perceived problems, several changes are proposed.

Impact Assessment and Regulatory Processes

  • The current environmental assessment and regulatory review processes will essentially be merged into a new more closely integrated one.
  • There will be a greatly expanded introductory process intended to perform a “Strategic Regional Assessment” and “Early Engagement and Planning”; following this phase, “additional conditions are applied to support regulatory compliance during the regulatory phase”.
  • Projects under review will then be divided into two groups: “designated” and “non-designated” projects. The designated projects will include major energy transmission projects, nuclear projects and offshore oil and gas projects. There is no explanation as to why some projects would be designated and others not.
  • The designated project process would entail, as a first stage, an extended “impact assessment” carried out by the single environmental assessment agency, either alone or jointly with a regulatory body. This would essentially be a review in principle to determine whether it was in the national interest, after which there would then be a policy decision by the appropriate Minister or Cabinet. Only then would the actual regulatory review based on the “technical” merits of the project be performed by the responsible regulatory body.
  • The non-designated project review would entail no “Strategic Impact Assessment” or political decision, but rather would a more limited review for a projects’ “safety, economic, environmental, social and health considerations”.

Assessing Cumulative Effects

The proposed approach includes new requirements and processes.

  • Working with provincial and territorial governments and indigenous peoples, the federal government (who, exactly, is not clear) will develop national environmental frameworks to inform regional assessments (e.g. Pan-Canadian Framework for Clean Growth and Climate Change; Air Quality Management System).
  • The government will conduct strategic assessments that “explain the application of environmental frameworks to activities subject to federal oversight and regulation, starting with one for climate change”.
  • The government will prepare regional assessments to guide planning and management of cumulative effects, identify the potential impacts on the rights and interests of indigenous peoples and inform project assessments.
  • The government will establish an “integrated open science and data platform” to inform environmental frameworks and regional assessments.

Early Engagement and Planning

  • The Strategic planning phase will include “direct engagement between Crown representatives and indigenous peoples to discuss impacts and identify issues”.
  • An initial list of issues will be developed; it will be made public and public feedback will be obtained.
  • Clear guidance will be given to industry on what will be assessed and the scale of the assessment.

Public Participation

  • Eliminating the “standing” test previously used by the National Energy Board for those wishing to participate in assessments.
  • Improving participant funding programs.
  • Engaging Canadians in a “two-way dialogue” on environmental assessment and regulatory processes through better use of social media and other tools.
  • Increasing transparency on reasons for environmental assessment and regulatory decisions.
  • “Inclusive monitoring and compliance activities, so that life cycle regulators and permitting departments work closely with indigenous peoples, communities and landowners”.

Science, Evidence and Indigenous Knowledge

The government is considering:

  • Moving toward an open science and data platform containing knowledge that supports environmental assessment and regulatory processes.
  • Incorporating indigenous knowledge alongside other sources of evidence.
  • Introducing peer reviews of science and evidence in the assessment phase.
  • Making plain language summaries of the scientific facts that support assessments accessible to the public.

Impact Assessment

The government is considering:

  • Broadening the scope of assessment to include environmental, economic, social and health issues.
  • Consistently using Gender-Based Analysis Plus (GBA+) in assessments.
  • Introducing legislation to explicitly require assessment of impacts on indigenous peoples.
  • Establishing a single government agency responsible for impact assessments and for coordinating consultations with indigenous peoples.
  • Using joint reviews by the environmental assessment agency and the responsible regulatory body for all major energy transmission, nuclear and offshore oil and gas projects.
  • Reviewing the Project List and establishing clear criteria to update it in future.

Partnering with Aboriginal Peoples

The government is considering:

  • Being more “responsive” to indigenous rights, jurisdiction and decision making, with “space created” for increased indigenous involvement and indigenous-led assessments.
  • Sharing administrative authority and management responsibility with indigenous peoples.
  • Early and regular engagement and participation.
  • Formalizing the co-development of frameworks for cooperation on environmental assessments and regulatory processes.
  • Increasing participation of indigenous peoples on assessment boards and review panels and in regulatory processes.
  • Clarifying roles for consultation and accommodation in regulatory processes.

Cooperation with Jurisdictions

The government is considering:

  • “More comprehensive cooperation” with interested jurisdictions to support the objective of “one project – one assessment”.
  • Introducing legislation to allow substitution of provincial and territorial project assessments for federal ones where there is alignment with federal standards.
  • Developing new provisions and criteria to enable substitution of project assessments to indigenous governments.
  • Ensuring that processes better recognize indigenous jurisdiction laws, practices and governance systems.
  • Allowing ministerial approvals of exceptions to legislated timelines.
  • Cooperating with other jurisdictions to guide planning and management of cumulative effects.

Next Steps

The government is seeking public comments on the discussion paper before August 28, 2017. Comments can be made at Government of Canada Environment and Regulatory Processes.

The public input and that received from other sources will be taken into account as the government finalizes it approach to amending the environmental assessment and regulatory processes this fall.