Hope may finally be in sight for fixing Canada’s environmental assessment process, after a four-member expert panel released a promising report on the heels of consultations in 21 cities across the country.

Historically, the focus of Canada’s environmental assessment has been on “avoiding harm” and “significant adverse impacts” associated with new projects, but the new approach recommended by the panel would shift the focus to a “net contribution to sustainability,” said Anna Johnston, staff counsel at West Coast Environmental Law.

“The recommendations that the panel has made address a number of the concerns that were raised by the scientific community,” said Aerin Jacob, conservation scientist for the Yellowstone to Yukon Conservation Initiative. “I was pleasantly surprised.”

A key recommendation is to establish an arms-length independent agency with a broad mandate to administer environmental assessments — including gathering information, conducting the review and making the final decision (although cabinet would retain the ability to appeal). This recommendation would take reviews out of the hands of other agencies, such as the National Energy Board.

Another crucial recommendation is for government to move to a model in which the proponent continues to fund the science, but the actual science itself will be provided by independent professionals hired by the government.

“It recognizes that environmental assessment has to be integrated with assessments of the various other impacts, the costs and the benefits,” said Chris Tollefson, executive director of Pacific Centre for Environmental Law and Litigation and a law professor at the University of Victoria. “So we’re moving from an environmental assessment regime to an impact assessment regime, which is a major step forward.”

Major Overhaul of Environmental Laws Possible

There are four expert review panels currently preparing reports for the federal cabinet on environmental and regulatory processes.

Each is taking on a distinct but interrelated piece of legislation: the National Energy Board Act, the Fisheries Act, the Navigation Protection Act and the Canadian Environmental Assessment Act.

Those pieces of legislation were dramatically altered in 2012, during the Conservative government’s overhaul of Canada’s environmental laws — which sparked widespread protests across the country.

The environmental assessment panel went to 21 cities, received more than 500 online submissions and  welcomed more than 1,000 participants at engagement sessions,” according to the government.

Shift Towards ‘Impacts Assessments’ Recognizes Holistic Nature of Project Impacts

The recommended shift from an “environmental assessment” to “impact assessment” might sound like a mere semantic quibble.

But Johnston said it represents a significant move towards a more holistic “sustainability approach” that considers social, cultural and economic impacts in addition to environmental impacts. The report also recommended that environmental assessments should be conducted and decisions made in collaboration with Indigenous governments.

“It makes it clear that we have to not just look at the biophysical impacts of the project — whether there’s going to be significant adverse environmental effects — but instead to look at projects and other proposals in a more holistic way that looks at their impacts on social, economic, cultural and other important components of Canadian society,” Tollefson explained.

However, Johnston notes the report didn’t include a recommended expansion of assessment for cumulative impacts, meaning the negative effects of development from smaller projects on a landscape may still not be adequately evaluated.

Information from Environmental Assessments to Be Made Public

There’s also the issue of information sharing.

Jacob of the Yellowstone to Yukon Conservation Initiative says that one of the things she’s most excited about is a recommendation to make all data from environmental assessments publicly available. While the details are still unclear, Jacob says it would include information sharing and both baseline and monitoring data.

“That’s really key,” she says. “It goes much beyond an individual project: this is about helping Canadians know more about our country. If implemented, that would be tremendously important.

“If you want to know that somebody did something carefully and following particular standards, you have to be able to see all the details of their methods,” she adds. “It helps us build upon the shared body of knowledge. That’s critical.”

However, Jacob notes there’s still ambiguity about the independence of information collecting: although the report is “really explicit” that the new body would be impartial and the lead authority, she says there would still be a reliance on proponent-driven data.

That’s where clarification on what “best available information” looks like is needed.

“I really want to emphasize that scientists of all stripes — whether they’re at universities, working in consultancy companies or NGOs — really care about being involved in this,” she said.

Federal Government Now Seeking Responses to Report

There’s now a public comment period that’s open until May 5, 2017, giving individuals or organizations the ability to respond to the recommendations in the report. Following that, the federal cabinet will decide on changes to legislation, regulations and policies, with the government listing the estimated window of fall 2017.

Johnston said she’s been working closely with government leading up to report, and confirms the government is considering significant legislative amendments. Tollefson added that there will be “momentum towards implementation.”

“This is a real opportunity to make a huge step forward; there may be disagreements on the details but in terms of the broad sweep this is an opportunity that should not be missed,” he said.

Only time will tell how many of the panel’s recommendations are implemented. But experts agree the review process itself has bolstered confidence in the government’s interest in public consultation, which Johnston said stands in stark contrast to the processes that resulted in the changes to the 2012 legislation.

“The panel has recognized that you just don’t get quality decisions when you don’t have public values and input included in that process, and you don’t have community buy-in if the community hasn’t been able to provide their thoughts,” she said.

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If you feel exhausted by Canada’s fevered debates about oil pipelines, liquefied natural gas terminals, renewable energy projects and mines, there just might be relief in sight.

Right now, the federal government is reviewing its environmental assessment (EA) process. Yes, it’s reviewing its reviews. And while that might sound kinda boring, it could actually revolutionize the way Canada makes decisions about energy projects.

“My highest hope is that Canada will take advantage of this once in a lifetime opportunity … and take a really visionary approach to environmental assessment,” said Anna Johnston, staff counsel at West Coast Environmental Law.

That could include implementing something called “strategic environmental assessment,” which creates a forum for the larger discussions about things like oil exports, LNG development or all mining in an area.

So instead of the current environmental assessment process, in which pipeline reviews have become proxy battles for issues such as climate change and cumulative effects, there’d actually be a higher-level review designed specifically to examine those big-picture questions.

This week, the panel that will help determine the future of environmental decision-making arrives in B.C. at the end of its cross-country tour.

We spoke to Johnston — who is part of the advisory council providing advice to the panel — about the review, how strategic environmental assessment could help move Canada’s energy conversation out of gridlock and how Canadians can get involved.

Q: Why does this review matter to everyday Canadians?

What we saw with CEAA 2012 [the changes to environmental assessment made under the Harper government] was that it was a real erosion of democracy and it put Canadians’ environment at risk.

We’re in the middle of this national conversation about what we’re going to do about climate change, for example, and we’re seeing protests across the country about projects that have gone through environmental assessment largely because people have felt like the environmental assessment was inadequate and there was a lack of transparency and accountability in the review process.

Good environmental assessment allows the public to have a meaningful say.

The public really cares about climate change and they really care about their ability to have a say. So it’s about trusting government and it’s about knowing that you’re able to have a say and influence decisions.

But then it’s also about, on this other level, how are we going to get to carbon neutral by 2050? Environmental assessment is the main tool for making decisions about proposals that affect the environment.

There’s a lot of concern that no matter how good the [climate] plans might be that we need to make sure they influence the project-level decisions.

Q: How should we best grapple with those big societal questions?

Right now we’re grappling with them at the project level. So when Kinder Morgan or Energy East proposes a pipeline to take tarsands bitumen to tidewater all of these concerns come up at that project level, where it takes an incredibly long time and the reviewing bodies and the proponent argue it’s outside of the scope of the assessment.

The solution is to create a forum for those policy-level discussions where you have essentially an environmental assessment of a government policy or a plan to have oil to tidewater, without tying that conversation to a particular project.

Right now we’re trying to have these really high-level national conversations about climate change, tarsands, at the same time as in a project-level assessment, getting down into the weeds of whether or not a pipeline should be sited here, maybe on a different route, what are the impacts on a particular species?

So it’s just putting way too much into one basket.

Best practices in environmental assessment say you have to begin with what’s called a strategic environmental assessment. And that’s where you have those policy discussions. Once you get that strategic assessment that has examined those bigger picture policy-level issues then those assessments can provide guidance at the project level.

So it might be that if we’d had a national conversation about oil to tidewater 10 years ago, we would have been able to decide as a country that that was not a viable idea, that it was going to bring us away from any reasonable goals to do our fair share on climate change and that we’d never approve a project. And that would have saved everybody a ton of money and a ton of time.

Q: How does a strategic environmental assessment actually work? In some senses, aren’t those policy-level decisions typically political decisions?

Yea, they are political decisions but we already have a requirement that government plans, policies and programs that require ministerial approval get a strategic environmental assessment. That requirement is set out in the cabinet directive.

The problem is that it’s not being followed. The auditor general and the commissioner of environment and sustainable development have found that time and time again that government departments and agencies are not doing strategic environmental assessments in the vast majority of cases.

So it’s already required, the government has already acknowledged the importance of it. It’s just that we need to put that requirement into legislation so that there’s more accountability.

There’s another kind of strategic environmental assessment where you are doing a regional scale environmental assessment, but you narrow it in some way so you might only be looking at all mining in an area, or all oil and gas in an area, and you come out with a regional-scale plan for how you want that kind of development to occur.

There’s pretty broad consensus among not just environmental groups, but also among industry groups, that doing those kinds of regional-scale assessments would really ease the burden on proponents, on the public, on indigenous peoples, on government, because it would mean first of all that we’re creating a vision for what we want development in the region to look like and how we want the environment in the future to look like and then set out these pathways for how to get there.

Then we’d have that strategic-level guidance for the project-level assessments. It would ease the burden at the project level

Q: Would this work for something like the development of LNG, for instance?

Yea, that’s the perfect example of where we should have done a strategic EA.

Right at the very first whisperings of LNG in B.C., we should have done a strategic EA of LNG in B.C., figured out whether we should have LNG at all — could we have LNG and achieve our climate obligations and goals?

Are there particular communities who would like to have LNG? Are there particular environments that could sustain an LNG facility? Are there particular environments that are a no-go zone? Many would say that Lelu Island should have been flagged right off the bat as a no-go zone.

If we had done that at the very outset, then when the project proponents come along, they’d have the guidance from a strategic EA that would have said: maybe we can have one or two in B.C. Here are the different temporal spacings they’d need to occur in and here are the locations, the pipeline routes and the LNG facility locations where it might work. And then once you get to the project-level EA you’re looking much more closely at the specifics.

Q: Do you feel hopeful about the outcome of the review?

Yes, I feel hopeful. I think the biggest challenge that this panel is facing right now is how to drill down to really concrete recommendations to the government. So they’re hearing a lot of things … at the 50,000-foot level … and the difficulty for them will be drilling down to a more practical implementation level.

Q: Will fixing the environmental review process really solve our problems? Or ultimately do we need that to come from the political level?

I think you need both. You need elected decision makers making good decisions for the people who voted them in. But you can’t rely exclusively on them so we need to have good processes. And that’s one of the main purposes of environmental assessment.

Q: What is the thinking about recommendations — should they be binding?

There are two schools of thought on that … the minister probably should retain some sort of discretion but I think that the legislation needs to set out much more explicitly the criteria by which she makes her decisions … right now, our decision-making process is the minister concludes: “Will this project result in significant adverse impacts and, if so, are they justified?”

And the justification decision is made by cabinet behind the dark curtains of cabinet, where they get to take into consideration anything, even beyond the environmental assessment, including political considerations.

That black box of the justification decision is what really undermines public confidence in the process.

So you can have ministers making decisions, but the legislation should really clearly set out the decision-making criteria, so that the public, so that indigenous people, so that proponents know exactly what this project needs to achieve in order to get approved.

Q: What are the biggest points of push back from industry?

One of the things I’ve been hearing from industry is that they think the provinces should be entrusted exclusively to do environmental assessments where they have jurisdiction or where there’s shared jurisdiction. I don’t share that view. I think you get better processes when you have both parties, or all parties, at the table, collaborating, drawing on the highest standards of process.

Q: Who should participate in these hearings?

Anyone who is concerned about the environment, who has experience with environmental assessment, anyone who was shut out of the Kinder Morgan [Trans Mountain] environmental assessment or had to fill out those long forms, and anybody who has concerns about how the public is engaged in decision-making.

There are two different types of public process: there are the hearings, which are a little bit more formal and you get one-on-one time with the panel for 15 minutes. And then there are the workshops, which more people are able to attend and it’s more of a dialogue on key questions on federal EA and I think that it’s really important that the panel get a diversity of experiences and a diversity of voices.

This isn’t just for experts for sure.

More Resources

• The panel is holding sessions in Kamloops, Fort St John, Prince Rupert, Vancouver and Nanaimo, finishing up on December 15. Find out how to get involved.
• The panel’s report will be released on Jan. 31, 2017, followed by the release of the Fisheries Act review in mid to late February and the review of the National Energy Board on March 31. *UPDATE: In December, the panel’s deadline was extended until March 31. There will also be a 30-day public comment period on the report.
• Read Johnston’s full participant’s guide for the environmental assessment review.

This interview has been condensed. 

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Fish-bearing waters are less protected from pollution after regulations passed by the federal government give Fisheries and Environmental Ministers the ability to grant blanket-authorizations to pollute if the polluting activity is related to fish-farming, research, or falls under other federal or provincial regulations or guidelines, which are not legally binding.

“Deregulating pollution in fish-bearing waters is short-sighted and irresponsible. They represent yet another attempt by the federal government to abdicate its responsibility to Canadians to protect fish and fish habitat,” Jessica Clogg, executive director and senior counsel at the West Coast Environmental Law Association said.

Dumping pollutants, such as drugs, aquatic pesticides and biochemical oxygen-demanding matter, into fish-bearing waters is prohibited in Section 36(3) of the Fisheries Act, except with a permit. The new regulations bypass permits and exempt pollution in a wide-range of circumstances, including aquaculture.

The Harper government quietly made way for a major expansion of fish-farming in British Columbia in January after opening the entire coast, excluding the Discovery Islands region, to aquaculture. Critics say the decision to scale up the fish-farming sector ignores the conclusions of the 2012 Cohen Commission report, the result of a three-year inquiry into the 2009 collapse of the Fraser River sockeye salmon fishery.

The Cohen Commission's final report made 75 recommendations which have yet to be implemented by the federal government. In February conservation groups filed petitions with the auditor general of Canada, requesting the Harper government report back to the public on the fate of the Cohen Commission’s recommendations.

Critics with the Watershed Watch Salmon Society fear the decision to expand fish farming on the B.C. coast is putting wild fish stocks at risk.

“The decision to expand destructive aquaculture practices anywhere along B.C.’s coast is a huge betrayal of the concerns raised in the Cohen inquiry,” Craig Orr with the society said.

The 2012 omnibus budget bills C-38 and C-45 eliminated several pieces of environmental legislation in Canada and revised both the Canadian Environmental Assessment Act and the Fisheries Act. As a result aquaculture projects, among many other kinds of projects, are no longer assessed for environmental impacts by the federal government. 

The Regulatory Impact Analysis Statement that accompanied the federal government’s new pollution regulations states the new rules will bring greater certainty to the industry.

According to the West Coast Environmental Law Association members of the public are concerned the new rules will limit oversight of potentially harmful pollution.

“What we really need is certainty that our rivers, lakes, and oceans are protected," Anna Johnston, staff counsel at the West Coast Environmental Law Association said.

“Requiring permits for pollution ensures that the regulators are aware of the pollution, allows site-specific considerations to be taken into account and allows for adjustments if any unwanted harms happen. What these regulations really enable is the government’s ability to turn a blind eye.”

Image Credit: lipseyhimsley via Flickr

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B.C. Environment Minister Mary Polak has reversed and apologized for excluding First Nations from two amendments that would eliminate the province’s mandatory environmental assessment of gas developments and ski resorts.

As DeSmog Canada recently reported, the Orders in Council were passed without public consultation and would exclude major natural gas processing facilities and resorts from undergoing a standard environmental review and public consultation process.

“The rescindment is a direct result of backlash from the Fort Nelson First Nation (FNFN)," Anna Johnston, staff counsel with West Coast Environmental Law Association, told DeSmog Canada. "Yesterday, at an LNG Summit hosted by the FNFN, they ‘drummed out’ government representatives due to the provincial government’s failure to consult with them on the Orders.”

B.C. officials were escorted from the forum on liquefied natural gas (LNG) after news of the eliminated environment assessments broke. At the forum, called “Striking a Balance,” Chief Sharleen Gale of the FNFN asked B.C. government officials to leave the room, saying “what I learned from my elders is you treat people kind. You treat people with respect…even when they’re stabbing you in the back.”

“So I respectfully ask government to please remove yourself from the room. We’re going to ask industry to stay.”

A video of the expulsion can be seen below.

The provincial government has been undergoing “serious environmental deregulation,” said Johnston, pointing to Bill 4, the Park Amendment Act, as further evidence.

“Their rescinding the Orders indicates that the Minister of Environment has heard the message loud and clear that the government cannot continue to sneak through changes to environmental laws that will significantly impact British Columbians without first consulting them,” Johnston told DeSmog Canada.

“Public participation is essential to responsible environmental decision-making, including the process of making the laws that protect our environment and our communities. Hopefully, the government has learned that next time, it must properly consult stakeholders, environmental groups and First Nations before attempting any further changes to our environmental safety net.”  

Yesterday Chief Terry Teegee of the Carrier Sekani Tribal Council told West Coast Native News First Nations were “blindsided” by the changes. “There was no consultation as far as changing that policy.”

An executive with the First Nations Summit, Cheryl Casmier, said the revisions were “another unacceptable example of government once again attempting to water down and minimize its consultation and accommodation obligations with our communities.”

First Nations expressed concern decisions that would impact land use were being made without proper consultation.

Chief Stewart Phillip of the Union of B.C. Indian Chiefs told West Coast Native News, “in a stunningly stupid move, the province has effectively declared war on all B.C. First Nations and jeopardized all LNG discussions throughout the entire province of B.C.”

Minister Polak made this statement in a B.C. government press release:

“I would like to acknowledge First Nations concerns about amendments to the Reviewable Projects Regulation under the Environmental Assessment Act. Our government apologizes for failing to discuss the amendment with First Nations prior to its approval.

Our government is committed to a strong, respectful and productive relationship with First Nations. That is why we will rescind the amendment that would have removed the requirement for an environmental assessment for sweet gas facilities and destination resorts, until we have undertaken discussions with First Nations. The Canadian Association of Petroleum Producers (CAPP) has been made aware of this decision, and respects the need for our government to have further discussions with First Nations.

Our government sees a significant value in continuing to develop a Government to Government relationship with all First Nations. We remain actively engaged with First Nations in northeastern British Columbia, including shared decision making that respects the environment, First Nation values, and Treaty 8 and its associated rights.”

Image Credit: Jeremy S. Williams, Wilderness Committee

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