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 the risk that the legal framework for consultation with communities is not clear?

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 (2) guidelines of practice, is variable. These protocols and guidelines should be easy to follow and have understandable expectations.

Evidence to support assessed likelihood:

“The OAIA recommends that the MECP should review and update what information is really required to make an informed decision about a proposed project. EAs are far too long, complicated and expensive and too difficult for most people to understand. This added complication can restrict the public and stakeholders from participating effectively in the EA process. OAIA [Ontario Association for Impact Assessment] suggests that the MECP respond to the question, ‘what information is really necessary to inform decision- making?’” Likelihood Score 3/5 Source: OAIA, 2016, p. 8.

At present, online submission related to project assessments is not possible. Submissions must be made on paper. However, MECP is committed to digitizing the submission process during its modernization process.

Source: Lashbrook, 2019.

A code of practice aids practitioners’ in their assessments. It meets the constitutional requirements laid out in s. 35 related to the duty to consult and accommodate.

Page 4 Transparency International Canada Source: MECP, 2019c.

Source: Newman, 2017.

Evidence to support assessed impact:

A code of practice aids practitioners in their assessments.

Source: MECP, 2019c.

As of June 6, 2019 (as part of the More Homes, More Choice Act), Part II Order requests (bump-up requests) were refined to be able to screen out vexatious requests and requests by non-Ontario residents. This new approach provides more control by the minister and MECP, as well as more clarity, but limits the public’s capacity to participate Impact Score in assessment processes. 3/5 Source: Lashbrook, 2019.

“[It’s a] big burden for communities to participate, particularly [an] administrative burden for [a] community for [a] project when these processes are undertaken. Companies must continue to engage even if they [Indigenous communities] don’t want to participate in the process. There are issues with how communities are identified for project. There is no mechanism for a community to ‘opt’ a community out even if they don’t want to be consulted.”

Source: Toronto consultant #2.

Description of impact: From a process prospective, most assessment appears to meet the minimum standards of the duty to consult and accommodate. Communities that have consultation standards appear to have clearer processes. However, MECP should provide more extensive guidance about which communities should be consulted for a project. First Nations governments may consider developing consultation protocols to assist proponents and governments in consultations. Funding from provincial and federal entities should be made available to assist in community consultation protocol development. Validation also indicated that there needs to be consistency across provincial ministries and that there is a pervasive lack of knowledge of how to properly engage.

Assessment Likelihood x Impact = 3 x 3 Total score: 9

Risk: Does the delegation of consultation by the government to proponents lead to the absence of meaningful consultation?

The Crown has a legal duty to consult Indigenous communities when it has knowledge of an existing or asserted Indigenous or treaty right and where a proposed undertaking might adversely impact that right. SCC has stated that Code CC-N2 (3) the Crown may delegate procedural aspects of consultation to third parties, e.g., proponents. The delegation of consultation to proponents could lead to biased interpretations or limited interest by impacted Indigenous communities.

Page 5 Transparency International Canada Evidence to support assessed likelihood:

“The relationship between Indigenous Peoples and the Crown is dynamic. Proponents are often unable to properly scope EA project work (such as monitoring field studies, analyzing socio-economic conditions and providing meaningful consultation) in an ever- changing environment. The proponent is often seeking certainty and timeliness.

The procedural aspects of the Crown’s duty to consult are often passed to proponents and are confused with EA Act consultation requirements and accommodation requests made by Indigenous Peoples. This may further complicate issues associated with the broader relationship between the Crown and Indigenous Peoples with regard to involvement in the EA process.

The current EA process/practice did not anticipate and, in its current form, does not facilitate the meaningful involvement of Indigenous Peoples under these dynamic conditions.”

“Today, proponents, particularly private proponents can be caught up in extremely costly Likelihood Score and unproductive tasks in an effort to move their projects forward in the EA Program. 4/5 This is particularly true of resource development projects in northern Ontario, and must be addressed if better social and economic outcomes are to be achieved for both Indigenous people and resource development companies.”

Source: OAIA, 2016, pp. 14–15.

“Proponents want the quickest and least effortful process, because they just want things to go, but they understand the need for a more in-depth process; then they want certainty of process. That doesn’t always happen — certainty.”

Source: Toronto consultant #1.

“Duty to consult is given to companies. It’s Crown land and we’re responsible — we have to be participants. It’s unfair to First Nations. They get screwed every time, due to limited capacity and limited ability for consensus. The province taking a backseat puts companies and First Nations in a bad spot.”

Source: Elected official Timmins #1.

Evidence to support assessed impact:

“The government [Ontario] did their own consultation, but not very effective or efficient. Whole lot of consultation and not a lot of end product to show for it. There is a lot of consultation fatigue and we had complete no shows to events.”

Source: Toronto consultant #1. Impact Score 5/5 “‘What, if anything, a participant has said has impact on anything?’ You [a participant] can participate, to the point of consultation fatigue. But I wonder, if I was in their seat, if I would be thinking ‘It was more about me getting information.’ There is limited capacity to influence process. First Nations have a greater capacity to influence, by getting a share, as opposed to influencing process [the process moves forward] [by saying] yes or no.”

Page 6 Transparency International Canada Source: Toronto consultant #1.

“The general public doesn’t have any interest. We have open houses in Indigenous communities. We’re not the only individuals holding open houses; people get saturated and lose interest. There are only so many people in the community … Jobs and business opportunities are the focus of open houses. The Timmins and Sudbury area knows mining; a lack of opportunity to participate isn’t the problem, more a lack of interest.”

Source: Toronto Consultant #2.

“Trust [and] building relationship with communities is challenging. Most communities don’t trust proponents because of colonialism. Colonialism impacts all aspects of relationships. Everything gets projected onto whoever’s standing there. Current communities have insufficient internal support on how assessment works. Proponents must educate communities about EA process in a non-threatening environment, when proponent might be providing a perceived threat”

Source: Toronto consultant #2.

Description of impact: Communities do not trust that companies are acting in their best interest, or that their questions or concerns will influence the assessment results. This perception results in an absence of consultation as community members do not attend events or influence the assessment. Therefore, there is a strong likelihood that delegation results in “consultation fatigue” and limited effective consultation. Validation also highlighted that the government’s role as the intermediary also means that information from both sides is lost because the project subject related ministry may not have all the information communicated to it by the proponent and because “the ministry does not have the capacity to fully understand the values and concerns of Indigenous communities and has a difficult time ensuring that the proponent appropriately addresses those concerns” (validation workshop comment). The validation workshop also highlighted that proponents and consultants can be confused by government instructions, including lists of who should be consulted (which can differ across ministries), expectations across ministries, etc.

Assessment Likelihood x Impact = 4 x 5 Total score: 20

Risk: Free, Prior, and Informed Consent (FPIC) of affected communities will be ignored

The Canadian government has acknowledged FPIC but has been slow to integrate FPIC into legislation and practice. Historically, and currently, the primary focus of Canadian jurisprudence relating to affected communities has been to elaborate the implications of section 35 of the Constitution, meaning the duty to consult and accommodate. One of the major challenges for the implementation of FPIC is federalism. The Province of Ontario has the mandate Code CC3 to manage most resource considerations and thus implement of FPIC on the ground, particularly on Crown land where Indigenous communities have traditional lands. Ontario has not integrated FPIC into its regulations, nor has it endorsed the concept. Assessments have traditionally been a venue to implement duty to consult, and likely will be seen in the future as a means of implementing FPIC.

Page 7 Transparency International Canada Evidence to support assessed likelihood:

“[It’s a] big burden for communities to participate, particularly [an] administrative burden for [a] community for [a] project when these processes are undertaken. Companies must continue to engage even if they [Indigenous communities] don’t want to participate in the process. There are issues with how communities are identified for [a] project. There is no mechanism for a community to ‘opt’ … out even if they don’t want to be consulted.”

Source: Toronto consultant #2.

“Most issues in relation to natural resources are at the provincial level, both because of jurisdiction on those matters and because of provincial ownership of land and resources, subject of course to any Aboriginal ownership interest. There are certain important exceptions in terms of federal jurisdiction over interprovincial transportation infrastructure Likelihood Score (such as pipelines) and uranium development in light of special concerns about 5/5 national security and foreign affairs connected to the nuclear industry. However, broadly speaking, aside from any confusion arising from overreaching federal government pronouncements, most decisions in relation to resource development will be at the provincial rather than federal level.”

Sources: Newman, 2017; Yellowhead Institute, 2019; Tomlinson, 2017.

FPIC is becoming a greater concern for industry because of financing requirements and increasing international obligations. Select companies may be striving for FPIC to improve corporate social responsibility (CSR), access financing, etc. However, this industry-led driver is variable.

Source: Papillon & Rodon, 2017.

Evidence to support assessed impact:

A code of practice aids practitioners assessments.

Source: MECP, 2019c.

FPIC is not integrated into federal or provincial EA practice.

Source: Yellowhead Institute, 2019.

Meaningful consultation is infrequently achieved. Impact Score 5/5 “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: Timmins Elder #1, June 2019.

“The Crown holds the duty to consult, the proponent executes the procedural aspects of the duty to consult, and the government assesses the proponent’s consultation efforts. 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.

Page 8 Transparency International Canada Description of impact: Ontario has not implemented FPIC. Additionally, Ontario has limited guidance for undertaking project-level impact assessments on the mining sector. Therefore, there is limited implementation of the FPIC concept in mining projects, unless the proponent is engaged in that approach. Proponent engagement is extremely variable and cannot be relied upon. The duty to consult and accommodate is, however, embedded in Ontario legislation. There may be a natural evolution toward FPIC from these constitutional obligations but there is limited evidence to suggest it. The validation workshop suggested that this impact score should be reflective of Indigenous perspectives; during research, Indigenous participants generally said that FPIC was absent from their experience with mining operations.

Assessment Likelihood x Impact = 5 x 5 Total score: 25

Risk: Limited integration of social and cultural considerations in environmental assessments as they relate to Indigenous communities

The impacts of a project on the social and cultural considerations of Indigenous communities are expected in environmental assessments. However, these considerations are infrequently captured. Indigenous communities are wary of working with companies and the government for fear of misrepresentation or misuse of the information, as has historically occurred. Proponents Code CC-N1 and government also come from western perspectives and have limited time, capacity or knowledge to draw on in relation to these considerations. Additionally, accurately depicting social and cultural considerations is often challenging, given the diversity within communities.

Evidence to support assessed likelihood:

“When working with Indigenous communities, there is only so much information on baseline that can be gathered without community support. Without community support, baseline information is incomplete and can cause conflict later on. Clarity and expectations are important … There are no provincial requirements for socio-economic assessment. Feds have no guidelines and are vague.”

Source: Toronto consultant #2.

“Valued components are not community-defined anymore.”

Source: Toronto consultant #2. Likelihood Score 4/5 “In Canada, as elsewhere, community determinations to resist or accept, with or without conditions, a proposed local mine can be highly variable. Many of these communities are understandably torn by their distrust of the sector and their desire to improve material conditions. A key part of their challenge, be they vehemently opposed to, merely wary of, or outwardly supportive of mining, is their lack of knowledge of the likely impacts of a mine, especially with respect to community well-being. While it is becoming standard practice in Canada to track environmental and basic social outcomes from mine operations at regional scales, the same is not true at the community scale, especially with respect to community well-being, as captured by indicators that have meaning to Aboriginal Peoples; sadly, this deficiency exists even within research aimed at gauging the degree to which Impact and Benefit Agreements are mitigating mining impacts and delivering benefits to communities.”

Source: Klinck et al., 2015.

Page 9 Transparency International Canada Evidence to support assessed impact:

“General public doesn’t have any interest. We have open house in Indigenous communities. We’re not the only individuals holding open houses; people get saturated and loose interest. There are only so many people in the community … Jobs and business opportunities are the focus of open houses. The Timmins and Sudbury area knows mining. A lack of opportunity to participate isn’t the problem, more a lack of interest.”

Source: Toronto consultant #2.

“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.” Impact Score 5/5 Source: Timmins Elder #2 (June 2019).

“The new federal impact assessment has the best opportunity to participate in process by having them participate in a meaningful way.”

Source: Toronto consultant #2.

There are positive examples of industry–First Nation collaborations that indicate transparency, honest communication, trust building, and companies developing cultural competence improve operations. The level of engagement deters many companies from moving forward in this manner because of the costs it can generate: “We encourage mining companies not to hide behind the rules,” said Dubreuil, “rather pretend there are no rules, and basically deal out of respect.”

Source: Ross, 2019.

Description of impact: There has been limited effective integration of Indigenous social and cultural considerations into impact assessments in Ontario. Indigenous communities are reticent to provide community data for what is perceived as company purposes. Federally and provincially, there has been limited guidance on establishing social and cultural criteria to be considered in relation Indigenous communities. It is a challenge to establish social and cultural impacts without considerable data.

Assessment Likelihood x Impact = 4 x 5 Total score: 20

Risk: Decentralization of government decision-making will create uncertainty in the EA approval process

Class EAs are challenging to navigate because they are distributed across ministries depending on the project, e.g. mining, transportation, and do not have a centralized repository. Additionally, federal and provincial project assessments Code CF-2 of the projects are infrequently harmonized, meaning there is limited coordination between the federal government and the province. The resulting confusion creates challenges for the public, including Indigenous Peoples, to navigate.

Page 10 Transparency International Canada Evidence to support assessed likelihood:

“In many instances individual projects either arise from approved government plans or policies or must seek additional approvals under multiple pieces of legislation. It is not uncommon for a proponent to be faced with a complex array of approval requirements that must be addressed while planning a project. This often causes difficulties amongst proponents, regulators and stakeholders as it becomes a challenge to determine the appropriate level of detail required for EA approval vs. the other approvals.”

Source: OAIA, 2016, p. 10.

“The use of such streamlined EA approvals processes with very different requirements has created issues of inconsistency and confusion over time since each process has its own projects, proponents, definitions, process and timelines.”

“Stakeholders, proponents, agencies and the public are confounded by the discrepancies in the application of the numerous Class EAs and streamlined regulations. Likelihood Score While it is recognized that parent Class EA documents reflect the unique requirements of 3/5 the class of projects for which the Class EA applies, there are aspects of the Class EA process that are consistent between Class EAs and should be applied consistently (e.g. process steps, level of assessment required, Part II Order requests). This would provide clarity and consistency to the Class EA process.”

Source: —OAIA, 2016, p. 11.

Interviewees indicated that there is limited communication between ministries. Variety of class EAs, related to highways, electrical transmission, etc., also often apply to operating mines and are independently managed by their respective ministry. In practice, companies often engage voluntarily in project assessments to fulfill all their various class assessment requirements. Project assessments can be utilized to fulfill each ministry’s class requirements and to avoid the challenges of class EAs across multiple ministries.

Sources: Interview, Ontario ministry official #1; Interview, academic #1; Interview, Toronto consultant #2.

Evidence to support assessed impact:

“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 knowledge — including, for example, 80% of those conducted by the Ministry of 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 Impact Score the Ministry was aware of the projects and had reviewed the assessments, deficiencies 4/5 were identified in more than half the assessments, indicating that project owners were not always conducting them properly …

“The Ministry does not have effective processes to ensure that projects are implemented as planned. Such processes could include field inspections during project implementation or requesting data, after projects are implemented, that shows their environmental impact.”

Source: Office of the Auditor General of Ontario, 2016, p. 340.

Page 11 Transparency International Canada “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 EA process in Ontario is established in the EA Act. Over time numerous EA processes have been developed through regulations and through the various Class EAs for specific groups of similar projects. This has resulted in different rules for different groups of projects and for different types of proponents. While this has addressed some issues to streamline EA processes, it has created others. Now it is difficult for EA practitioners and stakeholders to understand what the actual EA process is and why there are different EA requirement for proposed projects that may have similar environmental effects. As a result, we have projects which are not undergoing an appropriate level of assessment given their proponent, project scale and location.”

Source: —OAIA, 2016, pp. 11–12.

Description of impact: The decentralized approach to assessment in Ontario requires consultants to navigate it, thereby generating a cottage industry navigating the assessment process for companies. For general public and Indigenous communities, this decentralized approach creates considerably more challenges to navigate. The relationship between class assessments (if multiple are required) and across ministries seems negligible. How class assessments influence project assessments is also challenging for the general public to understand.

Assessment Likelihood x Impact = 3 x 4 Total score: 12

Risk: Ministry staff and managers will be unable to cope with the workload of the agency

Numerous challenges facing the MECP staff have been identified that may influence the overall project assessment process. The ability to complete tasks Code CF-3 in a timely manner, provide consistent and prompt advice to those who require it, etc. contribute to this risk.

Evidence to support assessed likelihood:

“The provincial government does not have appropriate resources — not enough people and not sufficiently trained. Before the government of the time, the Ministry was world renowned for their expertise, but it was ripped apart.”

Source: Franco DiGiovanni, consultant, Toronto.

Likelihood Score “While EA is a proponent-led process in Ontario, it is not enough to place the entire 4/5 burden for good quality EAs on the proponent. Proponents should expect that they can receive strategic guidance from MECP staff [and] that the Ministry will consistently support that advice over the long term. This concern is particularly prominent in the case of complex and controversial projects where proponents often receive mixed messages from Project Officers assigned to their file. This equally applies to straightforward Class EA studies and recurring, predictable EA projects. EA studies take time to complete and proponents of EA projects often deal with several Projects Officers as a result of high staff turn over at the Environmental Approvals Branch. If Project Officers provide

Page 12 Transparency International Canada inconsistent guidance to the proponent, this results in costly delays and having to go back and undertake more work.”

Source: OAIA, 2016, p. 7.

“OAIA encourages MECP to build its accountability as the regulator. The lack of seasoned, experienced, senior EA practitioners as Project Officers at the Environmental Approvals Branch was noted as a significant issue. Improvements to the hiring of experienced, knowledgeable MECP staff and their ability and willingness to provide strategic EA guidance to proponents, respond to complex issues, address consultation concerns, deal with Part II Order Requests, respond to questions about level of detail required in EA studies, scoping, etc. is a noted suggestion.”

Source: OAIA, 2016, p. 6.

Evidence to support assessed impact:

“MECP should identify opportunities to provide senior EA Program leadership to participate in the development and review of other potentially interrelated government programs (e.g., source water protection). Furthermore, where EA projects arise from government plans or policies the lack of accountability and availability of decision- makers during project specific EA studies often complicates individual project approvals.”

Source: OAIA, 2016, p. 10.

The public has the opportunity to request that projects be bumped up from a class level assessment to a comprehensive project assessment. However, it is extremely infrequent that the ministry heeds those requests. From 2010 to 2016, there were 190 requests for bump-up and they all related to only four projects. Only one project was bumped up to comprehensive project review. However, if the bump-up is requested, the project must halt until the ministry makes its decision. This determination can result in project delays averaging from 90 to 110 days. The ministry has a prescribed timeline to review these requests (30–45 days), but only meets that timeline 5% of the time. Impact Score 5/5 Source: Office of the Auditor General of Ontario, 2016.

“While EA is a proponent-led process in Ontario, it is not enough to place the entire burden for good quality EAs on the proponent. Proponents should expect that they can receive strategic guidance from MECP staff that the Ministry will consistently support that advice over the long term. This concern is particularly prominent in the case of complex and controversial projects where proponents often receive mixed messages from Project Officers assigned to their file. This equally applies to straightforward Class EA studies and recurring, predictable EA projects. EA studies take time to complete and proponents of EA projects often deal with several Projects Officers as a result of high staff turnover at the Environmental Approvals Branch. If Project Officers provide inconsistent guidance to the proponent, this results in costly delays and having to go back and undertake more work.”

Source: OAIA, 2016, p. 7.

“Also, in this regard, it was noted that both MECP and proponents have failed to keep pace with newer public participation methods. Project Officers are not given the opportunity of visiting proposed project site and consulting with Indigenous Peoples and

Page 13 Transparency International Canada the public face to face. As a result, proponents are not getting the most current guidance on appropriate consultation and as a consequence they may have to repeat consultation steps causing project delays. Better public participation practice and staff involvement in it will lead to better social and economic outcomes.”

Source: OAIA, 2016, pp. 7–8.

Description of impact: MECP has demonstrated challenges meeting timelines, has significant turnover rates, high use of contract staff, and not been provided with the opportunity to utilize more innovative approaches to EA. These factors, when combined with the general dissatisfaction that interviewees had with the department, indicate that MECP staff is overburdened with work. The validation exercises also indicate that staff retention is problematic and proponents often educate staff about projects. Federal staff was considered significantly more technically sound. The structure of the legislation also generates an inefficient workload, requiring assessment based on the proponent as opposed to the impact. Therefore, resources cannot be aligned to where they are most needed.

Assessment Likelihood x Impact = 4 x 5 Total score: 20

Risk: Ministry does not have enough technical capacity to manage EAs with high accuracy and precision

Workplace culture, limited staff retention, lack of experience and capacity all Code CF-N1 factor into this risk evaluation. Staff expertise is also vital to this evaluation.

Evidence to support assessed likelihood:

Source: OAIA, 2016, p. 6.

Numerous consultants identified the lack of capacity on mining assessment within the Likelihood Score Ontario Ministry of the Environment as a major issue of concern that made writing 4/5 assessments more challenging. “Not a lot of hiring of experts.”

Source: Toronto consultant #5.

“Before the mid-nineties, the Ministry was world renowned for its expertise. The government at the time then gutted the Ministry and they never replaced them.”

Source: Interview, Franco DiGiovanni, consultant, Toronto.

“Provincial staff people didn’t understand the conceptual elements of EA, relative to the level of design that they were used to seeing with permit applications and didn’t seem to understand the costs associated with these requests from a design perspective.

Page 14 Transparency International Canada Provincial agency staff, ignorant of their mandate within the context of their ministry or department, didn’t think they had mandates or didn’t care.”

Source: Toronto consultant #4.

“The approvals branch people wanted to be helpful and facilitate — but have a lack of experience with heavy industry, such as mining. Provincial staff experience is largely based on assessments for landfills and large public projects; and the EA system was designed with that in mind. Very different context for a mine that is a private endeavour that is much more easily accommodated with the CEAA [Canadian Environmental Assessment Agency] process. We had odd conversations with the ministry over the nature of the mining project, like about the site location of the mine, for 2 hours, when it is quite obvious there is no choice for the location of a mine since you must mine where the ore is. Or alternatives to and alternatives for analysis — ‘alternatives to’ is a red herring for a private company as there are no real alternatives to conducting its business as it sees fit; some of the information that would be necessary to assess alternatives would be privileged and shouldn’t be part of the EA process. I’m hoping that you can leverage CEAA people to guide the provincial people. They kept returning to the legal framework because ‘that’s what you’re supposed to provide.’”

Source: Toronto consultant #1.

“The agency and the ministry are a bunch of paper pushers. We need to get people in government agencies to do detailed review, but they have organizers not assessors. Panels have trouble finding agency people that are good enough to write it up. This is a capacity issue, and consulting companies have them.”

Source: Ontario academic #1.

“Often staff that are unqualified to comment on the very specific technical elements of the project — clarity on process and clarity on roles would help to fix this … There is institutional loss because no one alive in any ministry had played a role in a new mine in Ontario [once they begun assessing mines].”

Source: Toronto consultant #1.

“The Agency shows incompetence, lack of capacity and lack of direction. 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 as evaluating baseline conditions.”

Source: Ontario NGO #1.

Evidence to support assessed impact:

“Province had little to no experience with mining-related projects for EA. Their Impact Score experience was entirely permitting for mining. We were forced down unclear roads, to 5/5 repeat materials for permits and EA. The provincial staff people didn’t understand the conceptual elements of EA, relative to the level of design that they were used to seeing with permit applications. They didn’t seem to understand the costs associated with these requests from a design perspective. The provincial agency staff, ignorant of their

Page 15 Transparency International Canada mandate within the context of their ministry or the department, didn’t think they had mandates or didn’t care.

“Little institutional experience, and that makes the process flounder. People that should be directing it can’t, won’t or don’t know how to. They treat it like a big permitting process. “The province should just drop EA from their mandate entirely, and they can engage provincial staff as needed, and the province can deal with the permitting on the back end. Throw the current process out and start again, or not do it at all.”

Source: Toronto consultant #1.

“Often to successfully comply with the EA Act, EA studies can result in large parcels of land being frozen, proponents and property owners being left in a state of uncertainty, which can cause emotional stress and financial consequences. This problem is compounded when EA decision-making is slow.

“The cyclical nature of the mineral development industry can result in significant loss of return on investment by mining proponents when EA studies are held up. For example, Noront Resources’ Eagle’s Nest nickel and copper mine’s Terms of Reference for its EA took over two years to approve with significant amendments. This has caused major delays in Noront’s ability to complete regulatory approvals to move the project forward, as well as missed opportunities for the company and Indigenous people in the area.”

Source: OAIA, 2016, p. 6.

“OAIA members believe that it is unfortunate that a ‘cookbook’ approach has been adopted by proponents and encouraged by regulators. All EA projects have their own unique challenges; some of these require creative solutions. There appears to be little incentive at the Environmental Approvals Branch to foster more adaptive and creative applications of the EA Act and the EA process. We believe that the existing EA Act (and all Parent Class EA Documents) allow for a balance between cookbook and innovative approaches.”

Source: OAIA, 2016, p. 7.

Description of impact: The MECP staff was subject to considerable criticism over the course of this review. The skill deficit primarily appears to reflect a high rate of turnover resulting in low institutional knowledge, limited experience in assessing mining developments, and a lack of innovation in their approach to assessment, relying on scripted approaches. Funding cuts, contract employment, limited opportunities for training and skill improvement, and hiring inexperienced staff appear to also contribute to vulnerabilities that are causing the risk. Validation exercises confirmed this evaluation. Importantly, this criticism also indicates that the structure in which

Page 16 Transparency International Canada MECP is operating is limited, focusing on proponent instead of impact, and limiting staff’s capacity to take a more innovative approach focused on impact.

Assessment Likelihood x Impact = 4 x 5 Total score: 20

Risk: External influence on ministerial decision-making

In Ontario, the minister has significant discretion in determining if a mine requires an environmental assessment, approving terms of reference and scope, and determining whether a project moves forward or not. Additionally, Cabinet does the decision-making, and therefore numerous ministers can exert Code PD-14 influence, including in MENDM promoting mining. Ontario is also aggressively pro-mining in its policy and language, primarily because of its extensive mining history. Also, because ministers are elected, their party may have relationships with industries or lobbies that could influence decisions or policies.

Evidence to support assessed likelihood:

Province will indicate to company through back channels that a project will likely be designated for a project assessment and that the company should proceed with voluntary agreement between the proponent and the province to undertake a project- level assessment under the EAA.

“The province was quite clear that they were going to use all their influence to move the class to a project assessment, that is, ‘we have the ability to bump this at any given moment.’”

Source: Toronto consultant #1.

“Proponents will be likely to get designated, based on environmental impacts and public interest. They avoid the 6 to 9 month delay.”

Source: Ontario ministry official #1. Likelihood Score 3/5 Language used by the Ontario Government in the lead-up to Ring of Fire project assessments indicates that they will move forward. Reviews of mining projects, road projects, etc., had either only begun, were still in the terms of reference stage or had not yet been undertaken. However, the language suggested that they would move forward and that processes such as EAs were barriers to economic development. Additionally, there is limited transparency related to where the public funding for Indigenous proponency of roads is coming from, what guarantees are being provided and who owns the road interests.

“If I have to hop on that bulldozer myself with Vic [Fideli] on the other one, we’re going to start building the roads to get to the mining … So when we get in there, we’re going to start doing and stop talking and start creating economic prosperity up in the north. This is comparable to oil sands in Alberta.”

Source: Doug Ford, quoted in CBC News, 2018.

Page 17 Transparency International Canada The proponents of the road construction in the Ring of Fire are Webequie First Nation and Marten Falls First Nation, both remote Matawa communities. Neither community has sufficient capital to build the roads themselves. Public funding from The province is funnelling public funding to these proponents to pay for the roads, and doing so with limited transparency. The roads are being assessed as a community project, despite using public money.

Source: Eabametoong First Nation, 2018.

Minister Greg Rickford was a member of the Noront Board of Directors from April 10 until December 20, 2017, when he declared his candidacy for member of the provincial parliament for Kenora–Rainy River. Previously, he was the federal minister of natural resources. This indicates a “revolving door” between mining and government. Additionally, the minister of MENDM is also a member of Cabinet, making the minister both the promoting agency as well as a decision-maker on project EA. MENDM is also the decision-maker on MENDM class EAs on exploration plans and closure plans. Minister Rickford is concurrently the Minister of Energy, Mines, Northern Development and the Minister of Indigenous Affairs, in charge of ensuring that consultation requirements are met. Being in charge of Indigenous consultation, and mining promotion, and having a role in decision-making, can create conflicts of interest and perceptions of bias.

Source: Noront Resources, 2017.

Evidence to support assessed impact:

Back-channel discussions resulting in a voluntary agreement to undertake a more strenuous assessment process increases the overall transparency by promoting the more rigorous process. It also assists in overcoming the regulatory shortcomings of Ontario’s assessment process.

“The province was quite clear that they were going to use all their influence to move the class to a project assessment.”

Source: Toronto consultant #1.

“Proponents will likely get designated, based on environmental impacts and public Impact Score interest. They avoid the 6- to 9-month delay.” 3/5 Source: Ontario ministry official #1.

“Decisions regarding whether to grant public requests for more extensive consultation are at the Minister’s discretion, with no clear criteria or an independent body to ensure objectivity. In the last five-and-a-half years, the Minister has denied all but one of the public requests to have 177 streamlined assessments ‘bumped up’ to comprehensive assessments. Also, the Minister has denied all 190 public hearing requests related to four projects … Clear communication about why requests were rejected would instill more public confidence in the environmental assessment process.”

Source: Office of the Auditor General of Ontario, 2016, p. 339.

The mayor of Timmins, during discussions on the Canadian Mining Expo said that “Regulations are stifling” because of the cost of compliance for mineral development. The suggestion was that lobbying the federal and provincial governments was essential

Page 18 Transparency International Canada to reduce regulatory burdens for development, including the need for “super-flow-through funding”.

He also stated: “I’m standing up here, as mayor of the city, with a passion for mining and geology and extraction and process and Timmins, telling you to ask us, to come to me and tell us what you need,” he said. “What’s the message we should be carrying to both the provincial and federal governments on any of these subjects? We will elevate the conversation.

“We’ve got the contacts within the provincial government … and we do have the contacts within the levels of government to talk to directly to say this is the message you have to hear if the North is not only going to survive but it’s going to thrive.

“Talk to me and we’ll do everything to make it happen. That’s the level of conversation I want to have with this office. That’s what I think I can do for the exploration, processing, development and building of our mineral complex across the whole North.”

Mayor Pirie demonstrates the attitude that regulation is not in the government’s best interest, and easy access to financing is crucial.

Source: Grech, 2019.

Description of impact: Ontario is a pro-mining jurisdiction and regulation is frequently seen as a barrier to development. The provincial approaches reflect the “revolving door” of industry and government. Financing infrastructure to support mining development through First Nations communities also lack clear, transparent procedures. Approaches also indicate that the presumption that decisions are pre-determined, regardless of EA, is in evidence. Validation exercises increased this score to moderate, particularly given the limited oversight of ministerial decision-making and the uncertainty industry feels when the governmental policy or ministers change.

Assessment Likelihood x Impact = 3 x 3 Total score: 9

Risk: Proponents will scope project descriptions to be under the thresholds requiring an EA

The federal threshold for assessment is a large, initial operation or significant expansion. Mining operations in Ontario only tend to move toward voluntary agreements if federal thresholds are already triggered. Mining companies may Code PD-N1 plan to begin operations in Ontario at a production rate that is below the federal threshold and expand the project under the expansion threshold, thereby bypassing environmental assessment requirements.

Evidence to support assessed likelihood:

“Some [companies] are trying to slip through the cracks — small tonnage, expanding existing operation. This problem is more Ontario based.” Likelihood Score 3/5 “The City of Timmins pitched it [Hollinger Pit] to the Ministry, using the closure plan/ rehabilitation to make a big open pit mine. The underground mine workings had become unstable … Created the Hollinger Pit, which takes out the Shania Twain Centre. No CEAA. No EA.”

Page 19 Transparency International Canada Source: Toronto consultant #3.

There is a perception among the general public and Indigenous community members that consultants are biased toward the concerns of their clients, including in the scoping of the project, the baselines and measurable components. This concern was identified in the EA Expert Panel Report, which stated, “The collection of data by consultants hired by project proponents has led to perceived inconsistencies in the quality of data, analyses and conclusions and the perception of bias in the analysis of impacts.” This concern led to the development of the independent federal assessment agency, with expanded internal capacity, to better review the materials generated by consultants. This concern was similarly identified in interviews with NGOs, consultants, Indigenous community members and academic experts at the provincial level.

“Roger Suffling in assessment classes taught that EAs were ‘populated by engineers wanting to get through the hoops.’ Consultants are captured by clients, and there is some evidence that they change their results. Companies want the one-stop consulting shops to get them through the process. The companies have risen to fill [a] niche for proponents — definitely there to serve industry. Consulting firms are paid by industry. This generates enormous barriers [between] mining and NGOs, e.g, scientists. Mining companies do not see assessment as assessment, but as an approval process … 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 as evaluating baseline conditions.”

Sources: Interview, Ontario NGO #1; Expert Panel for the Review of Environmental Assessment Processes, 2017.

“[Biased reporting is a] problem that expands over other sectors of industrial development. A lot of corruption and incompetence, with consultants doing it technically wrong or biasing the results toward the results of their clients … Ontario is the wild west in air-quality assessment. It’s an old boys club and no one wants to disturb the apple cart. But they’re doing their own clients a disservice.”

Source: Franco DiGiovanni, Toronto consultant.

Evidence to support assessed impact:

No expansion project has ever been designated for project assessment, nor has any expansion project undertaken project assessment via voluntary agreement in the province of Ontario.

Source: Ministry of Environment employee information meeting, November 2019.

Impact Score Expansions are common occurrences and encouraged through tax incentives. A mining 5/5 tax exemption on up to $10 million of profit during an exempt period is available for new mines (non-remote three years and remote 10 years). The exemption is also available for a major expansion of an existing non-remote mine.

Sources: Ministry of Finance, 2020; Government of Ontario, 2012.

In the Ontario Mining Association’s 2019 annual directory of operational mines, lists each mines annual production rate from 2015 to 2019, along with annual highlights, including expansion projects. Most mines demonstrate a consistency in annual production.

Page 20 Transparency International Canada However, many mines have expanded production extensively over the five-year period, as their stated expansions indicate. Not one of these expansions was subject to project assessments.

Source: Ontario Prospectors Association, 2019.

Description of impact: There is limited systematic review of whether companies attempt to avoid thresholds. However, anecdotal evidence suggests that a problem exists. Validation results agree with this conclusion though there was significant discussion regarding whether this avoidance was intentional or based on the economics of the initial projects. Mines must be financially viable to go into development, and if mines are proposed to only have minimal yields, their financial viability might be questionable. Therefore, there are questions related to whether, at the outset, companies expect to expand production beyond their initial project proposal. There are significant concerns about cumulative effects when companies that are not required to undertake environmental assessment or generate a smaller footprint in their assessment then regularly expand their production under the threshold. Additionally, there are some concerns that companies are transparent about their environmental, socio-economic and cultural impacts in the assessment projects and that consultants assist companies to reduce their regulatory burdens. The new, higher federal threshold will mean most mines will not hit the threshold, meaning even fewer projects will require review or it will be easier for proponents to scope the project to avoid review.

Assessment Likelihood x Impact = 3 x 5 Total score: 15

Risk: Gaps in regulatory coverage exist in the EA to integrate cumulative effects

Because of the focus of the EAA, Ontario does not require mining projects to undertake project assessments. The act focuses on the proponent of a project (i.e., if it is a public or private entity) as opposed to proposed project impact. In recent years, many mining proponents voluntarily agree to undertake project-level assessment of the mine, particularly if the project triggers federal Code PD-N2 assessment. The reasoning behind this decision relates to avoiding the time delay that proponents could face if a project is designated, for CSR expectations or if multiple class assessments are triggered. However, historically, very few mining projects and expansions have been designated and only 17% of currently operating mines have undergone project assessments in Ontario.

Evidence to support assessed likelihood:

Likelihood Score Source: Office of the Auditor General of Ontario, 2016, p., 338. 5/5 “Ontario, however, doesn’t automatically require the application of the Environmental Assessment Act to mining projects. Various elements of a mine may be subject to the Act, but a complete evaluation of a mining project is not required because the province maintains that it is a private project and that there is no provincial ‘decision’ to allow a mine to go ahead — it assumes a mine will go ahead providing it meets the technical permit requirements. This is an unusually regressive stance and is unique in Canada.”

Page 21 Transparency International Canada Source: Ontario Nature, 2017, p. 23.

Cumulative effects are not captured in either the streamlined or project assessment.

“The cumulative effects of multiple projects are usually not assessed. Despite international best practices, project owners are not required to consider the cumulative effects of other relevant activities such as known future projects and those that are already occurring in the project area; this can result in projects going ahead in areas that are already subject to significant environmental stresses.”

Source: Office of the Auditor General of Ontario, 2016, p. 340.

The OAIA identified cumulative effects as an emerging issue for MECP to develop guidance on.

Source: OAIA, 2016, p. 16.

“The type of assessment required for a particular project is often not based on the project’s potential environmental impact. For example, the basis for determining whether a comprehensive or a streamlined assessment is required for a particular project often depends on its size, scale and cost rather than its potential impact.”

Source: Office of the Auditor General of Ontario, 2016, p. 338.

“The EA process in Ontario is proponent led. In most cases, the proponent is the trigger for EA (with the exception of project triggers in some regulations). OAIA members noted that the triggers instead should be significance of potential environmental effects of a proposed project. For example, a road proposed by MTO [Ministry of Transportation] and a road proposed by a municipality may cause substantively the same type and scale of impacts but would be addressed differently in the EA Program.” Source: OAIA, October 2016, p. 8.

Evidence to support assessed impact:

“Some [OAIA] members believed that the EA process is focused too much on projects with minimal potential for environmental impact and/or no design alternatives. The excess focus on such projects takes away valuable resources that could be better spent on new and more complex projects with higher impact potential. OAIA suggests that the MECP should review whether the EA process should be applied to some projects at all.”

Source: OAIA, 2016, p. 8. Impact Score 5/5 Projects that trigger federal assessment under the Impact Assessment Act are new mines with an ore production capacity of 5,000 t/day or more; and expansions of existing metal mines that would result in an increase in the area of mine operations of 50% or more and a total ore production capacity of 5,000 t/day or more. This is an extremely high bar that is rarely met, meaning that most operating mines in Ontario do not have to undertake impact assessment for mine expansion or smaller undertakings.

In Ontario, 87% of currently operating mines have not received a project assessment, either federal or provincial. Many of Ontario’s mines have been operating for considerable periods of time. However, expansions, repurposing, etc., have also not been subject to assessment. Because of increasing numbers of voluntary agreements to do assessments, that percentage will likely decline in future years, presuming MECP

Page 22 Transparency International Canada staff continues with current practices.

“Ontario is the only Canadian jurisdiction in which environmental assessments are generally not required for private-sector projects. These projects — such as mining operations or chemical manufacturing facilities — proceed without an up-front evaluation of the environmental impacts of the project. Such impacts can be extensive and can affect Ontarians for many years. For example, as of March 31, 2015, the government identified that it had a liability of $1.2 billion to clean up 47 contaminated sites that were caused by mining in Ontario over the years … With over 4,400 active and abandoned mine sites and 15,000 recorded mine hazards, MiningWatch Canada reports that Ontario ranks first in Canada as having the biggest environmental liability in the mining sector.”

Source: Office of the Auditor General of Ontario, 2016, p. 338.

Description of impact: Ontario is the only Canadian jurisdiction that does not have mandatory impact assessment on private projects, including mining (because private enterprise is exempt under the EAA). There is no written guidance for if and when an individual assessment based on voluntary agreement should be employed, and because of this omission, the EAA cannot be relied upon by proponents, the public and Indigenous communities. Related to this concern, the EAA is designed for public proponents with specific considerations for review primarily related to public interest. Interviewees have indicated that the process is often at odds with proponent considerations, including intellectual property concerns or confidential firm information. Additionally, interviewees found that the materials required for Ontario’s process are often extremely detailed compared to those for the federal process, often expecting information that would normally not be required in another jurisdiction until later permitting stages. Therefore, the process is not knowable or anticipatory because (1) it happens sporadically or infrequently; (2) there is limited written guidance or provincial experience to draw from; and (3) it does not align closely with its federal counterpart. Consultants have indicated that the process is clear, identifiable and anticipatory. Validation showed that the lack of project EA in Ontario is a major risk.

Additionally, projects that trigger federal assessment under the Impact Assessment Act are new mines with an ore production capacity of 5,000 t/day or more; and expansions of an existing metal mine that would result in an increase in the area of mine operations of 50% or more and a total ore production capacity of 5,000 t/day or more. This an extremely high bar that is rarely met, meaning that most operating mines in Ontario do not have to undertake impact assessment for mine expansion or smaller undertakings. Decision-making authority under the EAA rests with the minister of environment and Cabinet. Therefore, Ontario has considerable leeway in designing a regime with limited application to most mining activities.

Assessment Likelihood x Impact = 5 x 5 Total score: 25

Risk: The criteria and framework that may trigger a private sector EA is not publicly known

Ontario is the only Canadian jurisdiction that does not have mandatory impact assessment of private projects, including mining, as private enterprise is exempt under the Ontario EAA. Thus, even though companies might voluntarily undertake an EA instead of multiple class assessments, there is no trigger under the province’s legislation to require a project EA. Code PD-N4 The government can designate that a project requires an EA. However, the criteria that such a decision would be based are also not publicly available.

The lack of clear guidance related to when a project should have an EA in Ontario hinders the transparency of the process and the public’s ability to hold the government accountable.

Page 23 Transparency International Canada Evidence to support assessed likelihood:

Because of focus of the Environmental Assessment Act, Ontario does not require mining projects to undertake project assessments. In recent years, many proponents have voluntarily agreed to undertake project-level assessment. The reasoning behind this decision relates to avoiding the time delay that proponents could face if a project is designated. However, historically, very few mining projects and expansions have been designated.

“The province was quite clear that they were going to use all their influence to move the class to a project assessment”

Source: Toronto consultant #1.

“Proponents will likely get designated, based on environmental impacts and public interest. They avoid the six- to nine-month delay.”

Source: Ontario ministry official #1.

Source: Office of the Auditor General of Ontario, 2016, p. 338.

“Ontario, however, doesn’t automatically require the application of the Likelihood Score Environmental Assessment Act to mining projects. Various elements of a mine 5/5 may be subject to the Act, but a complete evaluation of a mining project is not required because the province maintains that it is a private project and that there is no provincial ‘decision’ to allow a mine to go ahead — it assumes a mine will go ahead providing it meets the technical permit requirements. This is an unusually regressive stance and is unique in Canada.”

Source: Ontario Nature, 2017, p. 23.

The type of assessment required for a particular project is often not based on the project’s potential environmental impact. For example, the basis for determining whether a comprehensive or a streamlined assessment is required for a particular project often depends on its size, scale and cost rather than its potential impact.”

Source: Office of the Auditor General of Ontario, 2016, p. 338.

Source: Office of the Auditor General of Ontario, 2016, p. 339.

“The EA process in Ontario is proponent-led. In most cases, the proponent is the trigger for EA (with the exception of project triggers in some regulations). OAIA members noted

Page 24 Transparency International Canada that the triggers instead should be significance of potential environmental effects of a proposed project. For example, a road proposed by MTO and a road proposed by a municipality may cause substantively the same type and scale of impacts but would be addressed differently in the EA Program.”

Source: OAIA, 2016, p. 8.

Evidence to support assessed impact:

Source: OAIA, 2016, p. 8.

Projects that trigger federal assessment under the Impact Assessment Act are new mines with an ore production capacity of 5,000 t/day or more; and expansions of existing metal mines that would result in an increase in the area of mine operations of 50% or more and a total ore production capacity of 5,000 t/day or more. This is an extremely high bar that is rarely met, meaning that most operating mines in Ontario do not have to undertake impact assessment for mine expansion or smaller undertakings. Impact Score In Ontario, 83% of currently operating mineral mines have not received a project 5/5 assessment, either federal or provincial. Many of Ontario’s mines have been operating for considerable periods of time. However, expansions etc. have also not been subject to assessment. Because of increasing numbers voluntary agreements to do assessments, that percentage will likely decline in future years, presuming MECP staff continue with current practices.

“Ontario is the only Canadian jurisdiction in which environmental assessments are generally not required for private-sector projects. These projects — such as mining operations or chemical manufacturing facilities —proceed without an up-front evaluation of the environmental impacts of the project. Such impacts can be extensive and can affect Ontarians for many years. For example, as of March 31, 2015, the government identified that it had a liability of $1.2 billion to clean up 47 contaminated sites that were caused by mining in Ontario over the years … With over 4,400 active and abandoned mine sites and 15,000 recorded mine hazards, MiningWatch Canada reports that Ontario ranks first in Canada as having the biggest environmental liability in the mining sector.”

Source: Office of the Auditor General of Ontario, 2018, p. 338.

Description of impact: Because there is no trigger for private enterprises’ EAs in the Ontario EAA, the legislation is unreliable or proponents, the public and Indigenous communities. Even though the EAA includes the possibility of review and designation (primarily related to public interest), what exactly would mobilize a review or designation is unknown. The criteria of what would lead to designation is not clear or publicly available, which limits civil society’s ability to hold the government accountable.

Therefore, the process is not knowable or anticipatory because (1) it happens sporadically or infrequently; (2) there is limited written guidance or provincial experience to draw from; and (3) does not align closely with its

Page 25 Transparency International Canada federal counterpart. If a federal comprehensive project is triggered, consultants have indicated that the process is clear, identifiable and anticipatory.

Assessment Likelihood x Impact = 5 x 5 Total score: 25

Page 26 Transparency International Canada