This morning, the Expert Panel appointed by the Minister of Environment and Climate Change released its recommendations for reforming federal environmental assessment processes. The Expert Panel had been formed to consult with the public and Indigenous groups and to make recommendations to restore trust and confidence in these processes.
What were the concerns?
JFK Law assisted a number of First Nations who made presentations and written submissions to the Expert Panel. The key concerns expressed by our clients were:
- Present environmental assessment processes do not meaningfully assess the potential for projects to negatively affect Aboriginal and Treaty rights;
- Cumulative effects assessments are narrowly scoped, preventing meaningful assessment of the greatest threat to the continued exercise of Aboriginal and Treaty rights;
- Indigenous participation is key to meaningful assessment of impacts and a consideration of Indigenous knowledge;
- Decision making following environmental assessments is not transparent, and often ignores concerns expressed by Indigenous groups;
- Timelines imposed by the Harper government in CEAA, 2012 undermined the integrity of EA processes; and
- First Nations lack the capacity to participate meaningfully in environmental assessments.
Our client’s submissions can be found at these links:
- Athabasca Chipewyan First Nation (presentation) (submission)
- Mikisew Cree First Nation (presentation) (submission)
- Ditidaht First Nations (submission)
- Te’mexw Treaty Association (presentation) (submission)
What are the recommendations?
The Expert Panel’s report can be found at this link (report). We are still analyzing the report, but it is clear that the Expert Panel has made a number of important recommendations relating to concerns expressed by Indigenous groups. In particular, the Expert Panel has recommended that:
- Impact assessments be conducted by a single federal authority with quasi-judicial decision making power, eliminating, for example, the role of the National Energy Board in impact assessment.
- Impact assessments move beyond a narrow focus on the bio-physical impacts of particular projects and instead assess all impacts that may result from a project. Our clients have long urged the Crown to look directly at the impact of development, including cumulative impacts, on the exercise of Aboriginal and Treaty rights, rather than focusing on impacts to, for example, specific wildlife populations.
- Impact Assessments be followed by a “Decision Phase” where the impact assessment authority would seek Indigenous consent.
- Funding program be developed to provide long-term, ongoing capacity to Indigenous Groups, and that funding provide adequate support during the entire assessment process.
- Indigenous knowledge be integrated into all phases of assessment, in collaboration with, and with the permission and oversight of, Indigenous groups.
- Mandatory regional impact assessments occur where cumulative impacts may impact federal lands, marine areas or federal interests .
What is next?
The Expert Panel’s recommendations must now be considered by the public and the government. There is a comment period open from now until May 5. It is unclear whether there will be additional capacity funding made available, but the Minister has indicated there will be additional engagement with Indigenous groups through the spring and summer of 2017 (link) .