Federal EA Panel Releases its Recommendations for Reform

Earlier this month, after several months of consultations, the expert panel that was established to review Canada’s federal environmental assessment processes (the “Panel”) released its findings in a report entitled Building Common Ground: A New Vision for Impact Assessment in Canada.

The Panel was established as part of a sweeping review of Canada’s environmental protection regime that was initiated in early 2016.

The Panel’s mandate involved reviewing the federal EA process with a view to regaining public trust, helping get resources to market, and introducing new, fair processes. As part of its review process, the Panel met extensively with and heard from stakeholders across the country.

The Panel’s Report stresses the importance of robust public participation in the assessment process. It articulated four overarching principles that must govern the assessment process: it must be transparent, inclusive, informed, and meaningful. The Panel also emphasised that there must be a special role for Indigenous peoples.

Substantively, the Panel envisions an assessment process that moves “beyond the bio-physical environment to encompass all impacts likely to result from a project, both positive and negative.” To this end, it suggested a shift from “environmental assessment” to “impact assessment” (“IA”).

Some of the Panel’s specific recommendations include:

  • making “federal interest” paramount in determining whether an IA should be required for a particular project, region, plan, or policy;
  • defining “project” as “a physical activity or undertaking that impacts one or more matters of federal interest” while continuing the current use of the Project List;
  • introducing a legislated planning phase, which would include public engagement, prior to project design is finalized;
  • creation of an “impact assessment commission,” with quasi-judicial powers to undertaking a range of facilitation and dispute resolution processes, to conduct assessments;
  • establishing a right of appeal of decisions to Cabinet;
  • use of a “tiered” approach involving either regional impact assessment or strategic impact assessment as appropriate;
  • overall shift from “significance” to “sustainability” in assessment so as to ensure projects are “planned to avoid or minimize harm and deliver benefits for current and future generations,” with consideration of both positive and negative consequential impacts and alternatives; ultimately, whether a project ought to proceed should be based upon its contribution to sustainability;
  • early and ongoing opportunities for public participation that are both open to all and that have the potential to impact decisions; and
  • implementation of UNDRIP principles so as to include indigenous peoples in all stages of decision making in accordance with their own laws and customs

The Ministry of Environment and Climate Change is accepting comments on the Report until May 5, 2017.