Risk Assessment

Ontario 3 Worksheet C - Risk Assessment Risk: No sufficient verification of EA reports to ensure an accurate impact description Throughout this review, consultant bias toward clients has been identified as a major concern from Indigenous and other public participants. In addition, reviewing files overburdens Indigenous government offices, and the sufficiency Code PD-N5 of the review within the MECP depends highly on the expertise of the reviewer. Therefore, there is limited capacity to verify the efficacy of reports produced by consulting companies. Evidence to support assessed likelihood: Across Canada, reviewing and disclosing uncertainties in EA reports is a challenge. Source: Lees et al., 2016. “Best critical evaluation will come from those with the highest incentive to do the evaluation, i.e., the potential victims. They don’t have much capacity or power, or may be ill informed. They are clear about what they are concerned with overall, but have limited expertise to build a case. Therefore, it requires an adversarial process with public funding Likelihood Score to go to public participants.” 2/5 Source: Ontario academic #1. The public and other actors presume (1) experts engaged by the proponent lack independence to undertake technical studies; and (2) a lack of independent review. “Proponent has a bias, [which then] is in the assessment report” Source: Ontario academic #1. Source: Expert Panel for the Review of Environmental Assessment Processes, 2017. Evidence to support assessed impact: “The question is about whether this [report] will satisfy [the] reviewer. Reviewers will have their own interest. Check the last major EA to see how things are evolving. There is continuous improvement in process in both review and assessment.” Source: Toronto consultant #2. Impact Score 4/5 “The Ontario process has no analysis or review. The province has never been able to analyze the EA reports. They repeat the method without analysis — with poor explanation and lack of transparent reasoning for approval. You shouldn’t retrofit science to get your outcome. A lot of the baseline studies are done in abbreviated time periods and are not suitable to evaluate baseline conditions.” Source: Ontario NGO #1. Transparency International Canada Page 1 Most interviewed consultants referred to the federal and provincial processes as “separate” and noted that different information is required for each assessment. “The Ministry [of Environment, Conservation and Parks] has no assurance that streamlined assessments are conducted properly because of its limited involvement. Many streamlined assessments are completed without the Ministry’s Impact Score knowledge —including, for example, 80% of those conducted by the Ministry of 4/5 Transportation in the last five years [up to 2016]. Without knowledge of these assessments, Ministry staff cannot provide input into these assessments. In cases where the Ministry was aware of the projects and had reviewed the assessments, deficiencies were identified in more than half the assessments, indicating that project owners were not always conducting them properly.” Source: Office of the Auditor General of Ontario, 2016, p. 340. Description of impact: There is limited evidence that supports the lack of verification of assessments. The validation process indicated that there is a thorough review of all aspects of the documents. However, provincial expertise is limited and does not always identify important concerns, particularly those of Indigenous communities. The suggestion that consultants are biased toward their clients’ requests and that the staff at MECP are unable to effectively verify the results is primarily anecdotal. Additional research needs to be undertaken to determine the extent of proponent bias in reviews and the capacity within the ministry to credibly assess the reports. Federally, the recent expansion in the hiring of assessment professionals at the Impact Assessment Agency and at other ministries should improve their capacity for review. Assessment Likelihood x Impact = 2 x 4 Total score: 8 Risk: Delegation of consultation leads to absence of meaningful consultation1 The legal requirement to meet the duty to consult and accommodate creates a procedural requirement. Guidance of what meeting this duty looks like, by community through consultation protocols, and by the Crown, through Code CC-N2 (1) guidelines of practice, is variable. However, the entrenchment of that duty in the Constitution and general practice is clear. These protocols and guidelines should be publicly available and easy to access. Evidence to support assessed likelihood: There is a published code of practice to assist practitioners in assessment, as well as a specific guide for engagements with Indigenous communities. Likelihood Score Sources: MECP, 2019c; Ministry of Indigenous Affairs, 2019. 1/5 The requirements in section 35 of the Constitution Act, 1982 and related to the duty to consult and accommodate is mandatory and multiple Supreme Court cases have affirmed it. Sources: Newman, 2017; Yellowhead Institute, 2019. 1 CC1a, CC1b and CC8 risks given in the technical report are connected to the delegation of consultation related vulnerabilities. In the national report, all these are presented under the CC-N2 risk. These risks are recoded as CC-N2 (1), CC-N2 (2) and CC-N2 (3), respectively. Page 2 Transparency International Canada Individual First Nations may have specific consultation protocols to assist proponents in their consultation. Consultation protocols, land and resource stewardship infrastructure, and consistent approaches to negotiation provide considerable assistance to proponents in their consultation processes and reaffirms a First Nation’s objectives and rights. However, not every First Nation has clear consultation protocols or some of them may not have the internal capacity to provide consultation protocol, or it may experience other barriers when moving decision-making toward consent, as opposed to simply consultation. Source: Christian Aboriginal Infrastructure Developments, 2017. Evidence to support assessed impact: There is a published code of practice to assist practitioners in assessment, as well as a specific guide for engagements with Indigenous communities. However, there appear to be some inconsistencies in interpretation of the consultation framework across ministries. Sources: MECP, 2019c; Ministry of Indigenous Affairs, 2019. “Three different ministries will give you three different guidance practices on consultations. The [provincial] government is not coordinating between ministries.” Source: Toronto consultant #2. The requirements laid out in section 35 of the Constitution related to the duty to consult and accommodate is mandatory and has multiple Supreme Court cases have affirmed it. Source: Newman, 2017. “The Crown holds the duty to consult, the proponent executes the procedural aspects of Impact Score the duty to consult, and the government assesses the proponent’s consultation efforts. 4/5 If communities do not have the capacity to be involved, accommodation cannot occur … There are very few projects where meaningful accommodation has occurred.” Source: Germaine Conacher, MNP LLP, Aboriginal Forum Timmins, June 6, 2019. Indigenous communities continue to be colonized by Western development processes because communities have limited power in consultation compared to proponents and international obligations as designated by UNDRIP, particularly FPIC, have not been internalized into the Crown’s negotiations with communities. “I have heard so often from different Indigenous leaders that something needs to change. Unfortunately, as reflected in the following comments from two leaders in the north, time is running out: • ‘We are becoming more and more like them. They are winning and it seems there is nothing we can do to stop it unless we become like them.’ • ‘We may as well sit at the table. We can’t stop them, so we should get what we can for our people.’ This rhetoric is hard to hear when we know colonialization is at its root. How do we affect change? Indigenous Peoples have stood up to defend their rights with some degree of short-term success. But, it seems litigation is simply a stop gap and collateral damage Page 3 Transparency International Canada from the fight includes marginalized rights, community poverty, social inequity, growing unrest, and frozen regional economies.” Source: Christian Aboriginal Infrastructure Developments, 2017. “Decisions are already made by the time consultation is made … we stop caring anymore. Nothing can be done to change it. Short term we get money. Long term we get environmental damage. Larger scale problems, like pipelines, how can we influence that? Someone’s going to break ice eventually.” Source: Elder #1 Timmins. Description of impact: Consultation requirements are publicly available and broadly understood as required by the Crown, proponents and Indigenous communities. It is expected by the public and proponents that the minimum standard will be met, and legal recourse is likely if that minimum is not met. However, to determine the extent to which consultation embeds neo-colonial realities, examination of the quality of these processes, particularly as it relates to implementing FPIC, is required. Additionally, our validation workshop indicated that many communities do not have consultation protocols, while some are not publicly available, which generates additional challenges. Assessment Likelihood x Impact = 1 x 4 Total score: 4 Risk: What is

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