How Ongoing Reviews of Federal Environmental Laws Could Change Environmental Decision-Making in Canada

In November 2015, the Prime Minister mandated several Cabinet Ministers to review four of Canada’s environmental laws and processes: the Fisheries Act, Navigation Protection Act, the National Energy Board, and federal environmental assessment processes. The four reviews are ongoing now and will be completed in early 2017.

The West Coast Environmental Law Association has established an on-line hub where individuals and groups can access key information about the reviews, background resources and guidance about how to get involved. This includes our briefs and submissions on Fisheries Act and Navigation Protection Act reform, as well as recommendations about next generation environmental assessment in Canada, which are relevant to all four review processes, and are discussed further below.

12 Pillars for Next Generation Environmental Assessment in Canada

As I have previously written, in May, West Coast hosted a Federal Environmental Assessment Reform Summit, where over 30 of Canada’s leading experts on EA discussed leading-edge solutions to key issues in federal environmental assessment EA. The outcomes have now been distilled into 12 Pillars of a Next-Generation EA. These are interconnected and may be summarized as follows:

  1. Sustainability as a core objective
    All assessments should ensure the long term health of the environment and social values, and the equitable distribution of risks, impacts and benefits.
  2. Integrated, tiered assessments starting at the strategic and regional levels
    Participatory and sustainability-based assessments occur at the regional, strategic and project levels, and each of those levels inform the other.
  3. Cumulative effects assessments done regionally
    Cumulative effects assessment is regional, focuses on environmental health, and looks to the past, present and future.
  4. Collaboration and harmonization
    Jurisdictions harmonize their assessments to the highest standard, collaborating on processes and decisions wherever possible.
  5. Co-governance with Indigenous Nations
    Collaborative assessment and decision-making processes are based on nation-to-nation relationships, reconciliation and the obligation to secure the free, prior and informed consent of Indigenous peoples.
  6. Climate assessments to achieve Canada’s climate goals
    A climate test ensures that projects keep Canada on track to meeting its climate change commitments and targets.
  7. Credibility, transparency and accountability throughout
    Legislation sets out criteria, rules and factors to guide assessments and discourage politicized decisions. An independent body conducts assessments and the public has the right to appeal decisions.
  8. Participation for the people
    Meaningful public participation is early, ongoing, accessible and dynamic. It occurs at all levels of assessment and has the ability to influence outcomes.
  9. Transparent and accessible information flows
    All relevant information is easily accessible to the public, is shared between different levels of assessment and remains available for future use.
  10. Ensuring sustainability after the assessment
    After projects are approved, the law requires robust follow-up, monitoring, adaptive management, compliance and enforcement.
  11. Consideration of the best option from among a range of alternatives
    Assessments consider alternative scenarios, including the “no” alternative.
  12. Emphasis on learning
    The assessment regime fosters opportunities for learning, to ensure more informed and better decisions now and into the future.

In today’s column, I wish to explore one of these pillars in further detail: Co-governance with Indigenous nations.

Co-governance with Indigenous nations

Related to all of the federal reviews is the mandate given to the Minister of Indigenous and Northern Affairs to:

Undertake, with advice from the Minister of Justice, in full partnership and consultation with First Nations, Inuit, and the Métis Nation, a review of laws, policies, and operational practices to ensure that the Crown is fully executing its consultation and accommodation obligations, in accordance with its constitutional and international human rights obligations, including Aboriginal and Treaty rights.

Operationalizing this commitment, particularly implementing the United Nations Declaration on the Rights of Indigenous Peoples and its clear standard of free, prior, informed consent (FPIC) from Indigenous Peoples should be fundamental to the shape of environmental decision-making in Canada going forward.

We have used the term co-governance to describe the institutional mechanisms and processes through which FPIC may be implemented. In the context of environmental assessment, for example, this may mean assessments carried out by collaboratively managed institutions such as the plethora of co-management boards enabled by northern land claims agreements (see for example those established under the Mackenzie Valley Resource Management Act), or it may mean enabling parallel assessments by Indigenous nations and the Crown (for an example see this independent assessment by the Tsleil Waututh Nation of the Kinder Morgan Trans Mountain tankers and pipelines project), followed by reconciliation negotiations to reach agreement on outcomes.

At the regional scale, in order to respect the fact that Indigenous title and rights are held at the territorial level, the focus may need to be on technical assessments conducted by scientific and Indigenous experts focussed on values and rights that cross-cut any one nation’s territory, which then serve as an input to subsequent government-to-government negotiations and decision-making about proposed development.

A “collaborative consent” model to implementing FPIC in environmental decision-making could be achieved by establishing government-to-government agreements about environmental assessment or regulatory decisions as a pre-condition to approvals. It is likely that a new body, perhaps framed as an Environmental Reconciliation Tribunal will be required to support these negotiations and address disputes that arise. In our view, such a body should be empowered to do so on the basis of meeting both Indigenous and Canadian legal requirements, and avoiding infringements of Aboriginal title and rights.

Given the priority placed by the federal government on renewing the relationship between Canada and Indigenous peoples “based on recognition, rights, respect, co-operation, and partnership” these and other approaches should be the subject of government-to-government discussions to shape our new legislative frameworks, informed by the outcomes from the public reviews.

Doing so would have the potential to profoundly shift the nature of environmental decision-making in Canada – to the benefit of all.

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