Superficial Review of Canadian Environmental Assessment Act Cannot Sustain Public Confidence or Produce Real Results

Reprinted with permission from The Hill Times, Canada's Politics and Government Newsweekly, February 13, 2012.

By Jamie Kneen, February 13, 2012

(Ottawa) Much has been made of the public pronouncements by Prime Minister Stephen Harper and Natural Resources Minister Joe Oliver about limiting public participation in environmental reviews, limiting their duration, and ‘streamlining’ them, just as the public hearings on Enbridge’s proposed Northern Gateway pipeline began.

Little notice has been paid to the fact that these same pronouncements could be just as prejudicial to the statutory review of the Canadian Environmental Assessment Act (CEAA), as the House of Commons Standing Committee on Environment and Sustainable Development is still developing its report. Interested observers could be forgiven for wondering if there was any point to the standing committee process if the government’s intentions were already that explicit, and indeed whether the standing committee process wasn’t cut short so as to avoid wasting any additional time when the conclusions had already been decided.

This is a matter of deep concern to our network. In October 2011, as the standing committee was finally beginning the CEAA review, the caucus wrote to the committee to point out that this was “an opportunity for a much-needed ‘root and branch’ appraisal of the substance and process of environmental assessment in Canada,” and that Canada’s system for making environmental decisions needs to be seriously improved and strengthened in order to protect the environment for future generations and respond to climate change.

We said the CEAA review “should be comprehensive and should evaluate the legislation, regulatory framework, and practice of Canadian environmental assessment,” and that it was “the ideal moment for Parliament to speak directly with Canadians about the best ways to manage the impacts of human activities on land, water, and air, and to build an environmental assessment regime that ensures that economic activity actually contributes to long-term environmental and social sustainability.”

We urged the committee to make the review a “truly democratic, inclusive, and comprehensive process aimed at developing a world-leading environmental assessment regime that Canadians can be proud to hold up as a model of environmental governance,” by holding hearings across the country and ensuring that they were as accessible as possible.

The committee did nothing of the sort. Its abbreviated process was opaque, confused, and superficial. It made no effort to prepare for the review, much less engage the public in preparation for the review or even the review itself, and it heard testimony from only a small number of witnesses representing only a small portion of the relevant experience and analysis.

In contrast to the previous review of CEAA, neither the standing committee nor the Canadian Environmental Assessment Agency presented any background materials or discussion papers, or did any public consultation in preparation for this review. Nor was the minister’s multi-stakeholder Regulatory Advisory Committee (RAC) involved; in fact, it has not even met since June, 2008. (When CEAA was created, the Environment Minister created the RAC to work on the Act’s key regulations. It continued to work on the implementation and reform of the Act, including the Five-Year Review.) And although the review was overdue, having been mandated to begin in June, 2010, there was not even a public notice of the start of the review.

When the standing committee eventually started its work, it made no public statement on what the scope or objectives of the review were, or what kind of evidence it was seeking, such as direct experience administrating, participating in, or proposing projects within EA processes, or legal and policy experience and analysis. The caucus and one of its member organizations, the West Coast Environmental Law Association, sent letters to the committee raising concerns about the process; objections were also raised in testimony before the committee by MiningWatch Canada, also a caucus member.

The committee held only nine hurried hearings on the subject, some less than an hour long, offering witnesses only a few days’ notice to prepare their presentations and only 10 minutes to present.

Witnesses had very short notice to appear, and so had little opportunity to develop more comprehensive submissions or to coordinate with each other. It did not hold hearings outside of Ottawa, much less make an effort to reach out to people heavily affected by environmental decisions but who are far from decision-making centres, in the territories and in rural and northern communities in the provinces. It allowed written submissions, but did not advertise for them or set a deadline, finally closing the submission period with two days’ notice.

There was also considerable confusion and lack of transparency in the hearings themselves; initially witnesses were asked to address the review process itself, with the result that some witnesses did not present their more substantive material in the expectation that there would be other opportunities to do so.

The committee only heard from those who were invited to appear, or heard about the hearings and specifically asked to testify. Key participants were either heard from perfunctorily or not at all:

  • Neither the Ontario Association for Impact Assessment nor the CEN EPA Caucus (or many of its member groups) were called to testify, though in some cases they had already been promised hearing dates.
  • Government agencies that have worked with the act such as Parks Canada and CIDA—even the Major Projects Management Office (MPMO), which is responsible for coordinating regulatory procedures between federal agencies—were not called to testify.
  • Canadian Environmental Assessment Agency staff were only questioned about the basic functioning and administration of the act, not their experience in implementing it.
  • The Canadian Environmental Assessment Agency’s Quality Assurance Program data and analysis were referred to in testimony but were not submitted or discussed.
  • The MPMO's experience and analysis were not submitted or considered.
  • First Nations were represented only by the Assembly of First Nations, who made it clear that without a broader consultation process it was impossible for the AFN to make recommendations that would reflect the requirements of regional councils or individual First Nations. Other aboriginal groups were not involved at all.
  • Provincial environmental assessment administrators were not heard from, despite extensive references to the potential use of provincial review processes as equivalents or substitutes for the federal process. At the same time there was little discussion or consideration of existing harmonization and coordination procedures.

It is hard to see how such a badly-managed and inadequate review process will be able to produce useful, constructive recommendations on such an important law.

Jamie Kneen is with MiningWatch Canada and is co-chair of the Environmental Planning and Assessment Caucus of the Canadian Environmental Network which represents more than 60 national and local conservation and community groups with a long history of work on, and involvement with, the environmental assessment process in Canada.

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