Phase 2 Regulatory Reviews – Discussion Paper Comments and Recommendations BIIGTIGONG NISHNAABEG
August 28, 2017
62 Baker Street Guelph, Ontario, N1H 4G1 Canada 226-706-8888 www.sharedvaluesolutions.com BIIGTIGONG NIISHNAABEG
TABLE OF CONTENTS
1.0 Context ...... 3 2.0 Biigtigong Nishnaabeg Background ...... 5 3.0 Discussion Paper Questions ...... 6 4.0 Discussion Paper comments and Recommendations ...... 18
4.1 Canadian Environmental Assessment AcT ...... 18
4.2 National Energy Board ...... 38
4.3 Fisheries Act ...... 64
4.4 Navigation Protection Act ...... 7071 5.0 References ...... 7475
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1.0 CONTEXT
On June 29, 2017, the Government of Canada released its Discussion Paper on the environmental regulatory reviews including the potential reforms being considered to restore trust and modernize Canada’s environmental regulatory regime. The Discussion Paper includes brief reviews and suggested reforms to the Canadian Environmental Assessment Act, 2012, the National Energy Board Act, the Fisheries Act, and the Navigation Protection Act. Some of the key measures being considered for reforming the Canadian environmental assessment process and regulatory regime include:
Establishing a single government agency responsible for assessments of federally designated projects. The review would go beyond environmental impacts to also consider social, health, and economic aspects of a project and require a gender-based analysis. Joint assessments will be undertaken with the lifecycle regulator for major energy transmission, nuclear, and offshore oil and gas projects. Each review will draw on carefully reviewed scientific evidence, Indigenous Knowledge, and available data on the cumulative effects in the region where the project is planned.
Requiring an early planning phase to foster greater collaboration and engagement between proponents, Indigenous peoples, stakeholders, the public, and federal and provincial governments. This will build a common understanding of interests and issues and provide greater clarity and certainty to proponents.
Early and regular engagement and partnership with Indigenous peoples based on recognition of Indigenous rights and interests from the outset, seeking to achieve free, prior and informed consent through processes based on mutual respect and dialogue.
Restoring lost protections and incorporation modern safeguards to the Fisheries Act and Navigation Protection Act.
Upon the release of the Discussion Paper a two-month comment period was opened for members of the Canadian public, Indigenous communities, special interest groups, and key stakeholders to provide comments on the Discussion Paper, including providing responses to eight (8) questions embedded throughout the discussion paper in the areas of:
Addressing Cumulative Effects Early Engagement and Planning Transparency and Public Participation Science, Evidence, and Traditional Knowledge Impact Assessment Partnering with Indigenous Peoples
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Cooperation with Jurisdictions
The release of this Discussion Paper is the next step in the Government of Canada’s Environmental Regulatory Review Process that was launched in June 2016. To date that process has involved four concurrent reviews of the Canadian Environmental Assessment Act (CEAA), 2012, the National Energy Board (NEB) Act, the Fisheries Act, and the Navigation Protection Act (NPA). Each of the reviews included the following:
CEAA 2012 NEB Act Fisheries Act NPA
Participant Providing $9,000/ Providing $9,000/ Providing $7,500/ Providing $7,500/ Funding individual community individual community individual community individual community up to $233,200 for up to $233,200 for up to $75,000/ large up to $75,000/ large groups representing groups representing regional regional over 150,000 people over 150,000 people organizations organizations
Panel sessions in Panel sessions in 10 Committee 6 Committee Panel 21 cities 10 cities meetings meetings Sessions & 397 presentations 200 50 witnesses 17 witnesses Committee made presentations Meetings 1035 in-person made participants 1200 in-person participants 75 government 24 government 90 government 35 government Meetings meetings meetings meetings meetings
866 on-line and 400 on-line and 188 written 256 written On-line and written written submissions submissions Written submissions submissions Submissions Submissions Submissions Submissions were Submissions were due were due due December were due March January 31, 2017 January 31, 2017 23, 2016 31, 2017 1152 comments 1737 comments 1682 comments 92 written On-line and on-line on-line on-line submissions Written 163 written 121 written 193 written Submissions submissions submissions submissions to Government
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2.0 BIIGTIGONG NISHNAABEG BACKGROUND
Biigtigong Nishnaabeg is an Ojibway (Anishinaabe) First Nation on the northern shore of Lake Superior at the mouth of the Pic River. The community, Heron Bay, is located on a 322.7 ha (822 acres or 1.28 square miles) reserve in Northern Ontario. Biigtigong Nishnaabeg was not a signatory to the Robinson- Superior Treaty of 1850, however we did petition starting in 1879 for a reserve, and the request was subsequently granted (Ojibways of the Pic River First Nation, 2016).
The traditional territory encompasses over 2 million hectares combined with Exclusive and Shared territory on the north shore of Lake Superior. Biigtigong Nishnaabeg has asserted Aboriginal Title and has filed a comprehensive land claim in the Ontario Superior Court for Aboriginal title over our traditional territory (Ojibways of the Pic River First Nation, 2016).
There are approximately 1200 members with some 500 living on reserve. We elect our Chief and Council as per the Indian Act and the Indian Band Election Regulations. We elect one chief and 11 councillors every 2 years. Employment ranges from band administration, health/recreation fields, renewable energy to mining and forestry. Biigtigong Nishnaabeg has shown significant achievements in economic development with vested interests in the renewable energy sector as well as the establishment of the Pic River Development Corporation (Ojibways of the Pic River First Nation, 2016).
We are utilizing this latest regulatory review opportunity provided to put forth our perspectives regarding reforms to Canada’s environmental regulatory process and speaking to how processes can be more inclusive of First Nations voices. Unfortunately, this regulatory review process, put in place to improve Canada’s environmental legislation, has to date been mired in shortcomings that limit its potential to meaningfully engage Indigenous peoples, including Biigtigong Nishnaabeg.
The opportunity to engage in the Environmental Regulatory Review process and provide perspectives from our community has included the same fundamental flaws that limit many other consultation processes in our experience- specifically the consultation that occurs is superficial because there is not enough time or support to allow First Nations groups such as our community to effectively participate in the process. For example, throughout the entire regulatory review process the small funding amounts available to our community and tight timelines from when funding is awarded to when submissions are due have posed limitations on the depth of analysis and level of engagement that Biigtigong Nishnaabeg has been able to have with our membership on these processes. These timeline and funding limitations suggest to Biigtigong Nishnaabeg that the Federal Government is more interested in the appearance of consultation with First Nations than truly engaging in any meaningful dialogue that ultimately has impact on all the review processes.
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3.0 DISCUSSION PAPER QUESTIONS
DISCUSSION PAPER QUESTION: Addressing Cumulative Effects - What are the gaps in our national environmental frameworks and what geographic areas should first be examined for regional assessments?
Regional Strategic Environmental Assessments
The current national environmental framework focuses on evaluating the impacts of individual projects. However, impacts that occur regionally or are cumulative in nature are often poorly represented. Moreover, without a regulated process for evaluating impacts and sustainable development considerations across geographic areas, there is little opportunity for First Nations people to be involved in early and ongoing regional strategic planning. Thus, our voices are often not considered in developing alternatives, assessing cumulative effects or identifying development strategies that impact our rights and interests within our ancestral lands. It is therefore important that regional level effects of development be identified, evaluated and managed appropriately through a regulated, and First Nation inclusive, regional planning process such as a Regional Environmental Assessment (REA) or Regional Strategic Environmental Assessment (RSEA). According to the Canadian Council of Ministers of the Environment:
“RSEA is intended to:
improve the management of cumulative environmental effects; increase the effectiveness of project-level environmental impact assessment; and identify preferred directions, strategies and priorities for the future management and development of a region.” (CCME, 2009)
Legislated and regulated REA/RSEA programs that draw meaningfully on traditional knowledge should be utilized to address existing gaps in Canada’s environmental framework for assessing the environmental impacts of human activities. These RSEAs could build on lessons learned from other regional initiatives that have been completed such as the Beaufort Regional Environmental Assessment. These RSEAs can also be structured to include collaborative implementation with Anishnaabe rights- holders.
There are many geographic areas that would benefit from a REA/RSEA. However, due to the Crown’s limited capacity to complete these assessments, it is important to identify and prioritize these areas in a rational and transparent manner so that evaluation occurs in an efficient way. For this reason, we suggest that the Crown identify and prioritize areas which should be evaluated through a regional REA/RSEA process. For example, areas to be evaluated might include a strong focus on the “Mid-Canada Corridor” as defined by the following article- https://thewalrus.ca/if-we-build-it-they-will-stay/, This Corridor by definition takes in a large portion of Canada that is currently or reasonably prospectively subject to development as a new “frontier”. Areas to be evaluated should also be determined by:
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Input from First Nation peoples regarding important traditional areas and territories Environmental sensitivity, characterized by o the presence of rare, sensitive, and/or at-risk species o a very large amount of development, with few natural areas remaining o a very small amount of development, with relatively untouched areas o the presence of areas officially protected by Crown agencies and Anishnaabe rights- holders Potential for future development – Areas that are likely to see a large amount of development activities (e.g. Ring of Fire, Oil Sands) Areas that can draw from existing large-scale environmental initiatives (e.g. Great Lakes Program, St. Lawrence Action Plan, Lake Winnipeg Initiative etc.)
Based on our evaluation we suggest the following geographic areas should be evaluated through an REA/RSEA (or similar) process:
Gulf of St. Lawrence Central and Western James Bay watershed, including Ontario’s Ring of Fire region. Nelson River/Lake Winnipeg watershed Ottawa Valley Lake of the Woods
Location Rationale Gulf of St. Lawrence Impacts to First Nation rights and interests including First Nation Fisheries and traditional land use and harvesting A high potential for future development and activities linked to resource development such as increase oil tanker traffic The presence of sensitive and at-risk species including beluga whales, Gulf of St. Lawrence Aster, Deepwater Redfish, Porbeagle, Atlantic Sturgeon, Striped Bass, and Winter Skate Existing environmental initiatives in place such as the St. Lawrence Action Plan and SAR recovery strategies Central and Western James Bay watershed, Impacts to First Nation rights and interests in including Ontario’s Ring of Fire region the region including but not limited to hunting, fishing, trapping, gathering, and land use and occupancy Cumulative impacts from past and current resource development including forestry, hydro, and mining High potential for future resource
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development in the area including mining, forestry, and infrastructure development such as all-season roads and transmission line Nelson River/ Lake Winnipeg Watershed Impacts to First Nation rights and interests in the region including but not limited to hunting, fishing, trapping, gathering, and staying overnight on the land Cumulative impacts from past and current resource development including forestry, hydro, and mining Existing environmental initiatives in place such as the Lake Winnipeg Initiative Ottawa Valley Impacts to First Nation rights and interests in the region including but not limited to hunting, fishing, trapping, gathering, and land use and occupancy Existing environmental initiatives in place such as Ottawa River Regulation Planning Board
Lake of the Woods Impacts to First Nation rights and interests in the region including but not limited to hunting, fishing, trapping, gathering, and land use and occupancy Cumulative impacts from past and current resource development including forestry, hydro, and mining High potential for future resource development in the area including mining, forestry, and infrastructure development such as transmission lines
The Canadian Environmental Assessment Agency should coordinate the implementation of REAs/RSEAs in Canada, using collaborative implementation agreements with First Nation rights-holders. To support transparency and facilitate accessibility, a registry of all REAs/RSEAs, and all REA/RSEA collaborative agreements with Indigenous rights-holders, should be developed and maintained by CEAA. This could be linked with the public registry currently used for federal EAs.
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Strategic Environmental Assessment
As was previously stated, current national environmental framework focuses on evaluating the impacts of individual projects. However, the application of the environmental assessment planning framework to policies, programs, and plans through strategic environmental assessments (SEA) is currently quite limited. Moreover, there is little opportunity for First Nation people to be involved in strategic environmental assessment (SEA) processes. Thus, our voices are often not considered in developing plans, programs, and policies that impact our rights and interests. It is therefore important that First Nation inclusive Strategic Environmental Assessment processes be developed and implemented. According to Environment and Climate Change Canada:
“Strategic Environmental Assessment (SEA) is a key analytical tool used by the federal government to support environmentally sustainable decision making. It evaluates the environmental effects of a proposed policy, plan, or program and its alternatives, and informs strategic decision-making through a careful analysis of environmental risks and opportunities.
SEA facilitates the integration of environmental considerations early in the policy development process in order to reduce adverse effects on the environment, including effects of such environmental changes on health and socioeconomic conditions. Key benefits of SEA include identifying measures to enhance positive environmental effects and mitigate negative ones. SEA also helps to streamline the environmental assessment of projects by eliminating the need to address certain issues at the project stage, and enables consideration of cumulative environmental effects.” (Environment and Climate Change Canada, 2015).
Moving forward, the Government of Canada needs to ensure SEA processes are inclusive of First Nation voices and account for impacts to Anishnaabe rights-holders especially when analyzing environmental effects through the following considerations:
Scope and nature of potential effects The need for mitigation or opportunities for enhancement Scope and nature of residual effects Development of monitoring and follow-up programs The frequency and duration of the effects The location ad magnitude of the effects The risk associated with the effects The irreversibility of the effect The cumulative nature of the effects
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Climate Change Policy
Climate change is one of the most intractable problems of modern times. This is a global challenge that has the potential for catastrophic impacts on agriculture, wildlife, and humans. First Nation people in Canada are on the front lines of climate change and are experiencing its effects first hand. It is significantly changing and impacting our ability to hunt, fish and gather plants and medicines. Due to the importance, scale and immediacy of the problems from climate change we are calling on the Crown to embark on a process for the creation of a national Climate Change Policy in close collaboration with Anishnaabe rights-holders. This should draw on existing works such as the Pan-Canadian Framework on Clean Growth and Climate Change (Canada, 2016). It must also acknowledge the importance of First Nation voices by engaging in meaningful consultation and incorporating our Traditional Knowledge and environmental stewards. The policy should address: the potential climate change risks from large projects, and climate change risks to large projects, that are subject to Federal EA; the disproportionate effects of climate change on First Nation peoples; programs and initiatives for monitoring, minimizing and mitigating the effects of climate change; First Nation peoples’ engagement in carbon and greenhouse gas management; and strategies for promoting resilience in Anishnaabe rights-holders.
DISCUSSION PAPER QUESTION: Early planning and engagement will bring everyone to the table to build a common understanding of interests and issues, from which environmental assessment and regulatory processes could proceed. What should be the process and outcome of an early planning phase?
Early engagement of First Nation people in the EA and planning process for large projects is perhaps one of the biggest and most important gaps in the current environmental framework. As it currently stands, the screening and scoping phases of EA typically occur behind ‘closed doors’, without any legislated requirement for input from First Nation peoples. As a result, it is left to proponents to decide if and when to engage with First Nation peoples during these phases. This is problematic because it is during screening and scoping where there is the most opportunity for influencing on the design and implementation of projects and project EAs.
The benefits of having early engagement with Anishnaabe rights-holders include:
The opportunity to develop collaborative Crown-First Nation agreements for the conduct and oversight of EAs, and EA decision-making. The opportunity to have a say on alternatives to and alternative of a project. This will improve the ability to choose less impactful projects (e.g. sustainability assessment) as opposed to relying only on the determination of significant residual effects, as is currently the case in Federal EA. The ability to indicate interest in participation and training (e.g. environmental monitors, contracts, construction etc.). This early coordination between proponents and Anishnaabe rights-holders can also be used to encourage the proponent to focus on readiness and the development of training programs.
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Many Anishnaabe rights-holders are often left in the dark on the inner workings of the EA until late in the process. Early engagement will facilitate the transfer of information on processes, timelines, and funding opportunities. Early engagement will offer networking opportunities for Anishnaabe rights-holders to connect with other groups (PTOs, ENGOs, municipalities, FNs, etc.) with whom they can align, share information, and/or coordinate with.
To achieve the benefits outlined above, it may be best two-phase early involvement schedule. First the Crown and proponent should cooperate to identify and notify all those individuals, groups, and communities who may potentially be affected. Then in a second phase, provide opportunities for bringing those people together to facilitate participation directly in discussions of governance, jurisdiction, evaluation and planning, including developing collaborative agreements for the conduct and oversight of EAs, and EA decision-making.
To ensure its effectiveness, the process for early engagement with First Nation people should be legislated through the Canadian Environmental Assessment Act as part of the Federal EA process. Proponents and Crown agencies should be required to co-develop a Protocol Agreement with affected communities that would guide the early and subsequent engagement process, and EA decision-making. This agreement would govern roles of the parties, review timelines, capacity funding, channels of communication etc. The Protocol Agreement should respect existing treaties, aboriginal rights, land claims, supreme court decisions and engagement protocols (where applicable), and the federal government should have a defined role in approving and overseeing these Agreements as both part of their regulatory responsibilities as well as upholding the Honour of the Crown in consultation with First Nation peoples. Moreover, these agreements should strive to implement the principles outlined in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). The overall process for evaluating the engagement process could be led by government review teams that include members from Federal, Provincial, and Anishnaabe rights-holders. Review teams would jointly decide the methods and means of carrying out the environmental assessment from early planning, assessment and review, decision making, monitoring and compliance.
DISCUSSION PAPER QUESTION: What tools can we use to facilitate your participation and help you access the information you need in a user-friendly way?
To facilitate participation and access to information, we suggest that improvements be made related to funding and communication.
Funding
Funding should be provided for Anishnaabe rights-holders to participate in all EA phases, and should be available as soon as possible for participation in early phases. The application process for this pot of funding should be straightforward and independent from other existing funding (e.g. Participant Funding Programs). It would be used by eligible groups to gather information, secure expertise on par
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with proponents and government experts, and attend meetings and coordinate steps in the Environmental Assessment process. Access to adequate participant funding enables Anishnaabe rights- holders to participate and provide meaningful input into environmental assessment processes including the hiring of appropriate technical and legal experts to support participation. The Crown should strongly encourage proponents to provide adequate funding for First Nation participation in consultation delegated to proponents by the Crown.
Communication
Communication is a critical aspect of participation that must be improved so that Anishnaabe rights- holders are engaged in a meaningful way. We provide the following recommendations for improving communication:
Improve the ability to access project related information by having a public registry for all projects subject to Federal review. This should be a single point of access via an online portal for all projects. The current structure of the CEAA public registry is ideal, however, it should be updated to include all projects (e.g. CEAA, NEB and CNSC). i. All public documents should be made available online including those submitted by Anishnaabe rights-holders and the public as interveners. These should be housed in subfolders that are separate from primary project documents to avoid unnecessary clutter and complexity. ii. The registry should include a map similar to the one for the CEAA registry that has all active and archived projects. This map could be improved by allowing search ability using basic filters (e.g. filter by type of project, responsible authority, province, project status etc.). iii. All projects should include list of contacts for responsible authorities and proponents. iv. Projects should have links to archived projects that are similar in type. These could be made available for comparison where relevant. v. It would be useful to improve the public registry so that it is more suitable as a tool for research. This could include the ability to search through archived projects, case studies, policies etc. vi. Each project page should include a list of all federal regulatory approvals needed (and projected timelines) if approval of a project is granted. vii. Include regulatory and project documents for approved projects (e.g. Environmental Protection Plans, Follow Up Monitoring Plans, Fish Habitat Offsetting Plans etc.) Facilitate more face-to-face meetings with Anishnaabe rights-holders and regulators at all phases of major projects. These meetings are important as a touch point for the sharing of information on both sides.
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DISCUSSION PAPER QUESTION: How do we respectfully and meaningfully incorporate Indigenous knowledge?
To respectfully and meaningfully incorporate First Nation knowledge in Environmental Assessments we suggest that the government of Canada: Legislate the requirement for (and not just the option to) incorporation of First Nation traditional knowledge and traditional land use in the EA process. Proponents must clearly describe throughout their EA documents how First Nation knowledge has been used to inform the planning and design of the project as well as what efforts they have made to gather such information. Engage with Anishnaabe rights-holders earlier in the EA process to facilitate the collection of First Nation knowledge. There should be a facilitated process to ensure that communities can provide the First Nation traditional knowledge. This knowledge can be included in the baseline studies and for determining the scope of EAs. Ensure that proponents follow-up with Anishnaabe rights-holders to show how traditional knowledge is being used and protected. This could be implemented through iInformation sharing and use agreements. This information sharing and the relationship with proponents should be more closely managed by the Crown. In cases where a Proponent is not engaging in a good faith and appropriate manner, Biigtigong Nishnaabeg should be able to rely on the Crown to remedy the situation. It should not just be in the hands of proponents who are not always invested in engaging in a respectful relationship with First Nation people. Ensure that- as part of informed consent- proponents present back to Biigtigong Nishnaabeg what First Nation traditional knowledge they gathered and how it was used and considered in the assessment of impacts. Use First Nation traditional knowledge as a planning and avoidance tool along with its more conventional use in informing mitigation. For this to occur, the collection of IK must be completed early in the EA process. Requiring proponents, as a condition of approval, to develop agreements with Anishnaabe rights-holders for project monitoring and involvement in any follow-up programs including the involvement/ participation of land users, knowledge holders, and Elders. This helps to ensure that First Nation traditional knowledge is gathered and considered in an ongoing way in post-approval phases of a project.
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DISCUSSION PAPER QUESTION: How do we provide greater confidence in the science behind project assessments?
The following guidance is provided as ways to improve confidence in the science behind project assessments:
Provide unequivocal support for Indigenous rights-holders having resources for participating in peer-review processes for projects undergoing Federal EA. Support independent reviews by Indigenous rights-holders that include Indigenous knowledge holders and technical experts under the oversight of Indigenous rights- holders/communities. Create an independent advisory panel of technical experts for specific high-risk areas of major projects, such as Independent Tailings Review Boards for mining projects, water crossing planning, construction and monitoring for oil pipelines, accidents and malfunctions for off-shore drilling, or effluent management for oil refineries. These individuals would be available to answer scientific and technical questions from Indigenous rights-holders, the public, and government. Should be around the needs and requirements for effects prediction and assessment. o The panel must include Indigenous representatives, especially for effects on rights, traditional land use and Indigenous knowledge. o This panel could also play a role in setting the Terms of Reference or scope of the EA Guidance should be provided by the government for reliance on professional judgement for effects prediction and assessment of residual effects. These need to be qualified. Where no alternatives exist, a multi-expert processes (e.g. a Delphi process) would be preferred. This is much better than relying solely on experts hired by the Proponent. The precautionary approach should be employed more consistently, systematically, and transparently- especially in cases where there is heightened uncertainty due to lack of baseline or project design information; or novel technologies or approaches used in project design, effects prediction, or mitigation. Employ science in the service of Indigenous knowledge, and vice versa, through, for example, the use of indigenous knowledge to develop hypotheses and objectives for scientific study. Indigenous rights-holders must be involved directly in implementing monitoring programs. This would help to build confidence in the science through direct involvement in all stages of monitoring from planning to data collection, to data entry and analysis, to reporting about the impacts of a project first-hand. Provide plain language and graphic summaries of EA documents that are both credible and accessible to lay people, and available in Indigenous languages and through media (e.g. video) that improve accessibility.
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DISCUSSION PAPER QUESTION: What criteria should be used to consider potential changes to the Project List, and how do we ensure transparency in the process?
The following suggestions are provided to ensure that all projects that have potential impacts on First Nation rights and land use are assessed for and through a Federal EA, where appropriate.
There should be a mechanism for First Nation peoples to petition the Minister (similar to an elevation request) to have a project that is not considered a “designated activity” evaluated through a Federal EA. Currently the only way for this to occur is if the Minister of Environment and Climate Change, or Governor in Council designate the project, something which rarely occurs and for which there is no defined regulatory procedure. The Crown should assess and provide guidance for the following situations where it is not always clear whether a Federal EA is required: o Expansion or alteration of projects (e.g. expansion of mines); o Repairs and replacement of infrastructure (e.g. integrity digs for pipelines, refurbishment of old hydroelectric stations); o Re-use of linear rights-of-way for new projects or new infrastructure, such as transmission line corridors, road corridors, and pipeline corridors, especially where little or no previous Crown-First Nation consultation has occurred for previous project approvals; o Development that is occurring within similar or same footprint of an existing project but which may be substantively different (e.g. processing a new mineral in an existing plant with new reagents); o Decommissioning and repair of projects (e.g. oil and gas rehabilitation in the oil sands); o Roads into new ecologically sensitive areas that may be too short to currently trigger an EA but which may enable other ancillary development; o Infrastructure that is associated with a project undergoing EA but that that can be scoped out of the project (e.g. transmission lines, roads which enable the project); and o Projects occurring in ecologically important or previously impacted and recovering ecosystems.
In short, other context should be considered in federal EA screening whenever there is a material change to an ongoing major project, or there is the potential for impacts to First Nation rights and interests through socioeconomic or ecological pathways.
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DISCUSSION PAPER QUESTION: How can we work together to most effectively ensure the changes we implement support us on our shared path to reconciliation?
Reconciliation is a lengthy process that will require relationship building between Canada, First Nations and non-First Nation peoples for the foreseeable future. The Government of Canada can support reconciliation by respecting First Nation people, Aboriginal and treaty rights; by upholding treaties; land claims, aboriginal title and other agreements; and supporting First Nation people in the preservation, growth of their culture and worldviews. Regarding the EA process in Canada, the Federal Government can support reconciliation by ensuring First Nation people have:
opportunity to provide input via community sessions that focus on cumulative effects management, the collection of baseline data, and the incorporation of Indigenous knowledge; jurisdiction over projects that occur in their traditional territories; the training and education that will support improved participation in management, monitoring and enforcement for major projects; opportunity to provide this input directly into the process in place for drafting new policy and legislation related to environmental assessment processes in a manner that respects our culture and values; and adequate capacity funding is in place to support these endeavors.
Where First Nation rights and interests may be impacted, the duties of a review panel, or joint review panel, should include holding hearings in potentially impacted communities, to provide Anishnaabe rights-holders with inclusive opportunities to participate in the environmental assessment and its processes. The Agency should clearly articulate and explain to potentially impacted Anishnaabe rights- holders how various criteria, indicators and inputs are used in making screening decisions. Furthermore, analyses should be published including any initial determinations of the potential of a project to have significant adverse environmental effects.
The Federal Crown should ensure that a meaningful consultation process is offered to Anishnaabe rights-holders at all stages of the EA process, and that results of such consultation are incorporated meaningfully into the EA process. Crown consultation with First Nation peoples in an EA process should occur at the following stages: Determination of whether an EA is required, and what type (screening); Draft and final EIS guidelines (scoping); Assessment of alternative means (alternatives evaluation); Draft and final EIS; Sufficiency and completeness determinations (review panels and NEB/CNSC processes); Draft and final Crown EA report; Prior to final decision by the Minister or GIC, including during the course of any determination of whether a project is in the public interest despite significant residual effects.
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Decisions about needs for mitigation and what is and is not a residual effect needs to consider effects not just on the environment but also on First Nation rights and interests, for the benefit of all parties to an EA process. It is crucial that any EA follow-up program provide the following outcomes:
i. A forum where affected Anishnaabe rights-holders, the Crown and the proponent meet and consult affected individuals and communities on a regular basis, and where these affected people are empowered to have an influence in decision making with respect to follow-up; ii. Monitoring programs that are led by Anishnaabe rights-holders where there is a livelihood (indigenous use, health, socioeconomic, cultural heritage) interest, including capacity funding and support to conduct such programs and have the results of such programs taken into account in follow-up program reporting; iii. A basis and requirement for incorporating First Nation community input into adaptive management requirements and decisions as they relate to EA conditions of approval and/or deviations from the assumptions on which the EA decision was based.
The Canadian Environmental Assessment Agency should develop detailed technical guidance for proponents and any party who may administer follow-up programs, that includes measures to ensure the above outcomes. The Federal Crown should consider changes to the Act that may further these desired outcomes as well.
DISCUSSION PAPER QUESTION: What are the most important steps we should take to improve cooperation across jurisdictions?
To improve cooperation across jurisdictions, it is important to acknowledge Anishnaabe rights. In practice, these efforts can take a variety of forms including but not limited to:
• Establishing government review teams/ panels for environmental assessments that include representation from the Federal, Provincial, and First Nations governments that jointly decide the methods and means of carrying out the environmental assessment from early planning, assessment and review, decision making, monitoring and compliance. This includes the gathering of baseline data and incorporating First Nation traditional knowledge • Developing protocol agreements between First Nations, provincial, and federal jurisdictions regarding the coordination of EAs, the collection/ integration of First Nation traditional knowledge, baseline data, and the role of First Nation Peoples as lifecycle regulators of projects including but not limited to roles as environmental monitors, archaeological/ cultural heritage monitors, and providing both technical oversight and First Nation knowledge perspectives and world view. • Ensure that First Nations have access to adequate capacity funding and training as well as technical and legal expertise that enables First Nation Peoples to meaningfully engage in these processes in fulsome manner
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• Ensure science based evidence and First Nation traditional knowledge is considered equally when conducting EAs • Ensure First Nation traditional knowledge protocols for environmental assessments are co- developed with direct input of the Anishnaabe rights-holders the earliest stages of determining the scope of EAs in order for it to be included in determining the scope of assessments.
4.0 DISCUSSION PAPER COMMENTS AND RECOMMENDATIONS
The following comments are based on our initial assessment of the four (4) acts under review (CEAA, NEB, Fisheries, and NPA). These comments have been submitted to their respective Expert Panel or Standing Committee and form the basis of our assessment of the Discussion Paper. Our assessment of the Discussion Paper provides a determination of how effectively the Government of Canada addresses the issues we have identified in its considerations. Moreover, the recommendations we put forth identify how we wish to see our comments and issues addressed further as well as how we would like to see the Government of Canada better incorporate the recommendations from the Expert Panels and Standing Committees when moving ahead with legislative amendments.
4.1 CANADIAN ENVIRONMENTAL ASSESSMENT ACT
Adequacy of Section Comment/Gap/Issue Recommendation Discussion Paper 1 CEAA The duty to consult and accommodate has evolved to the point Partially The Discussion Paper on “Partnering with where it is obvious that collaborative assessment and decision- Addressed Indigenous Peoples” includes many making processes based on nation-to-nation relationships and considerations that partially address this agreements are necessary to secure free, prior and informed consent comment: (FPIC) of Indigenous peoples. The findings of the Truth and Reconciliation Commission and the UN Declaration on the Rights of However, the Discussion Paper does not Indigenous Peoples must be upheld and respected within future address how collaborative consent environmental assessment legislation. Agreements between the processes will work and whether the federal Crown and Indigenous rights-holders are essential prior to cooperation agreements with interested commencing processes that determine which projects will undergo jurisdictions will be binding and will prove environmental assessment, how such assessments will be conducted, mechanisms for influencing decisions. and by whom. “Collaborative consent” is an important foundational The Crown needs to provide further detail concept for future environmental assessment legislation in the and strong commitments to having context of nation-to-nation agreements set out by mutually agreed- collaborative agreements with Anishnaabe upon frameworks. Collaborative consent within nation-to-nation rights-holders. agreements can provide the flexibility and local and regional accommodations required for practical dialogue, informed decision-
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making processes, good information sharing, and projects that enhance sustainability objectives. Collaborative consent requires, at a minimum: a) nation-to-nation agreements on how collaborative consent processes will work b) agreements that provide for fair notice and full disclosure c) mutually determined scoping agreements that include the full range of Indigenous interests and perspectives on potential project impacts d) reasonable resources, capacity building and funding for communication and Indigenous community dialogue e) agreements that define mechanisms for influencing decisions, making decisions and resolving disputes f) mutually determined mechanisms for including Indigenous knowledge, including Indigenous science g) agreements on how the integration of Indigenous comments, Indigenous knowledge and Indigenous science are incorporated and reflected in decisions, and agreements on how Indigenous rights-holders will collaborate with the Crown to determine the make-up of project review bodies. 2 CEAA The current federal Cabinet role in determining whether a project Not A new mechanism is needed to determine with “significant adverse environmental effects” can proceed, has Addressed the scoring of the effect assessment. created the unanticipated consequence of proponents producing The Expert Panel has also found that using Environmental Assessment documents that strenuously avoid “significant adverse environmental effects” documenting any “significant adverse environmental effects” of a as a focus in the EA process is challenging. project. Virtually every proponent Environmental Assessment We agree fully with the Expert Panel’s document concludes that the project has “no significant adverse finding in this respect. The Expert Panel environmental effects.” Environmental Assessment legislation should provides this recommendation: discourage attempts to “game” the environmental assessment IA itself must judge more than the adverse process by encouraging good planning and collaborative problem- environmental impacts of a development solving with potentially impacted parties to better address project. IA should be able to analyse, “significant adverse environmental effects”. Encouraging discuss and weigh negative and positive collaborative problem-solving, especially with Indigenous rights- project impacts openly. Projects which holders at the table, and re-consideration of alternative means of provide a net benefit to the country should carrying out the project when faced with significant effects, will result be approved. Those that do not should not. in less risky projects and better solutions to project challenges. If The Expert Panel recognizes that a new after collaborative problem-solving with potentially impacted parties approach aside from “significant adverse results in a determination of “significant adverse environmental environmental effects” is needed and effects” or a stalemate among potentially impacted parties, only then instead concludes that: projects currently should Cabinet intervene. subject to s.67 meet the new project definition of affecting one or more federal interests and should therefore trigger IA where they meet the new proposed tests for triggering IA. The Discussion Paper’s consideration of ‘working tables’ could be the mechanism for encouraging collaborative problem solving, especially with Anishnaabe rights- holders at the table. 3 CEAA Federal EA scoping and guidance, Indigenous consultation, and EA Addressed If the Government of Canada adopts the follow-up are not consistently applied in the responsible authority “single agency responsibility for EAs”
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model of EA governance, leading to inequitable results for Indigenous approach, this would resolve this issue. peoples. This is an issue, in particular, and most significantly, with the National Energy Board.
Neither the National Energy Board nor the Canadian Nuclear Safety Commission should be charged with conducting environmental assessments. These agencies are too close to the industries they regulate and do not have the objectivity or range of environmental assessment experience required for conducting fair environmental assessments.
The Government of Canada should empower CEAA (the Agency) as a singular Crown coordinator for all federal EAs- with suitable capacity to administer such a role- to ensure that a reasonably comprehensive and consistent scope and guidelines are provided for all EAs, that a meaningful consultation process with Indigenous peoples is consistently carried out, that the results of Indigenous community consultation including Indigenous knowledge are consistently and meaningfully integrated into EA documentation and decision-making, and that EA follow-up meaningfully considers Indigenous interests in its development and implementation. 4 CEAA Currently the Act does not provide or prescribe the basis for a Addressed The Discussion Paper does mention co- collaborative approach to EA involvement by Indigenous peoples development of frameworks for (communities, organizations) or for acknowledging a nation-to-nation collaboration with Indigenous peoples and relationship in areas where land claims remain unsettled. The Indigenous-led assessments. Legislated Government of Canada should establish the framework for such frameworks, inclusive of bi-lateral and collaboration in a new Environmental Assessment Act. Such multi-lateral agreements between the collaboration should include membership on EA review panels and Crown and Anishnaabe rights-holders must government review teams for those communities potentially affected be in place. by a designated project, and participation in writing key EA documents including the EIS guidelines and final government EA report to inform government decision-makers. The Act should also include the basis and provisions for an Indigenous agency or body outside of those identified in the current definition of “jurisdiction” under section 2(e) and (f) to be recognized as having the authority to conduct an EA by substitution provided that it meets the requirements of equivalency as specified in section 37 of the Act. The Minister of the Environment may refer an environmental Partially The Discussion Paper mentions further assessment to a review panel if the Minister is of the opinion that it is Addressed scientific rigour through peer reviews of in the public interest to do so. A review panel is a group of science and evidence. However, First independent experts appointed by the Minister of the Environment Nation representation on review panels to conduct an environmental assessment. When a proposed project was not mentioned. requires an environmental assessment by both the federal The Expert Panel also strongly government and a province or another jurisdiction, a “joint review recommends using joint review panels: panel” can be established to avoid duplication. A “joint review panel” To date, the best examples of co-operation agreement can be negotiated between the federal government and among jurisdictions have been joint review other jurisdictions, and this provision should include Indigenous panels, backed up by general co-operation rights-holders with jurisdictional rights and interests. Such agreements between Canada and many agreements should include provisions for Indigenous rights-holders to provinces. As such, expanding the co- appoint joint panel members. operation model to include all relevant jurisdictions is the preferred method to carry out jurisdictional co-ordination.
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5 CEAA In determining whether to refer the environmental assessment of a Partially The Discussion Paper guiding principle #2 designated project to a review panel, the Minister of the Addressed includes participation of Indigenous Environment should place special emphasis on the opportunity for peoples in all phases and #4 mentions cooperation with Indigenous rights-holders. decisions reflecting Indigenous knowledge. The Crown must still make commitments for cooperation with Anishnaabe rights- holders using a joint review panel approach. 6 CEAA When there is an agreement or arrangement to jointly establish a Partially A review panel with greater First Nation review panel with an Indigenous community, the agreement or Addressed participation has been mentioned by the arrangement should include provisions for the Minister and the Discussion Paper. However, no further Indigenous community to establish, or approve, the review panel’s information was provided on the activities terms of reference, and the appointment of the chairperson or co- of the review panel. The Crown should chairpersons. include these provisions. 7 CEAA Where Indigenous rights and interests may be impacted, the duties of Not A review panel with greater Indigenous a review panel, or joint review panel, should include holding hearings Addressed participation has been mentioned by the in potentially impacted communities, and in the languages of those Discussion Paper but with no mention of communities in order to provide Indigenous community members providing meetings in the language of the with inclusive opportunities to participate in the environmental Anishnaabe rights-holders. assessment. The Expert Panel also makes this recommendation: Going forward, engagement opportunities and events should be appropriate for the circumstance. Quasi-judicial as well as informal options, preferably dialogue- focused such as workshops, should be available, and there should be participation opportunities within affected communities and in participants’ languages of choice. 8 CEAA If the Minister of the Environment refers an environmental Not A review panel with greater Indigenous assessment to a review panel or joint review panel, the panel should Addressed participation has been mentioned by the be the sole body to establish time limits, with reasonable Discussion Paper, and a guiding principle consideration for the capacity and circumstances of Indigenous (#4) is ‘timely, evidence-based decisions’. rights-holders and groups that are likely to participate in the However, there were no details regarding environmental assessment. time limits and capacity. The Expert Panel suggests that projects have time limits and cost controls that reflect the specific circumstances of each project, rather than the current “one size fits all” approach
9 CEAA Under CEAA 2012, the only responsible authority that may apply the Addressed The Discussion Paper suggests a ‘one substitution provisions of the Act is the Canadian Environmental project - one assessment’ approach which Assessment Agency. This is appropriate if the Agency is empowered would solve the issue of multiple agencies as a singular Crown coordinator for all federal EAs. If the federal needing ‘substitution provisions’. government continues with the current approach of multiple agencies conducting EAs, then all such agencies should be able to apply substitution provisions that extend to Indigenous rights-holders with jurisdictional rights and interests. 10 Where substitution is approved with other jurisdictions, the following Addressed The Discussion Paper suggests a ‘one CEAA conditions, that have been used in British Columbia examples of project - one assessment’ approach which substitution, should be applied: would solve the issue of multiple agencies
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applying the procedural aspects of Aboriginal consultation, needing ‘substitution provisions’. and making funding available to Aboriginal groups.
11 Determining which projects or categories of projects should be Partially The ‘Early Engagement and Planning’ CEAA assessed under environmental assessment legislation is Addressed section of the Discussion Paper provides fundamentally important to Indigenous rights-holders and groups. some allowance for early engagement; Consultation with Indigenous rights-holders and groups must happen however it is unclear if engagement with at the earliest possible stage of a project, most especially the Anishnaabe rights-holders will occur during screening stage of the EA. Furthermore, the Agency should clearly the screening stage of the EA process. articulate and explain to potentially impacted Indigenous rights- Indigenous rights-holders need to be a part holders how various criteria, indicators and inputs were used in of the screening and scoping process. making screening decisions and publish its analysis, including any Additionally, the Crown should provide initial determinations of the potential of a project to have significant rationale for how screening decisions were adverse environmental effects. made in light of being transparent with the process. The Expert Panel also suggests early engagement at the scoping stage: “there should be a consensus-based approach to scoping the IA in advance of the study phase of IA. This would enable early dialogue and expert involvement in the scoping of studies and improve the efficiency of the IA process” 12 The 2014 Fall Report of the Commissioner of the Environment and Partially The Discussion Paper mentions improved CEAA Sustainable Development (Office of the Auditor General, 2014) found Addressed participant funding programs, but there is that the Canadian Environmental Assessment Agency’s use of no mention of using memoranda of memoranda of understanding as a framework for federal understanding or similar agreements for substitution. The federal government should use memoranda of federal substitution. understanding as a tool for enabling substitution with Indigenous rights-holders. Indigenous rights-holders should be properly resourced to participate in discussing and negotiating such memoranda of understanding. 13 Currently, CEAA 2012 does not provide for situations where a First Partially The Discussion Paper Cooperation with CEAA Nations community in an operational community under the First Addressed Jurisdictions section mentions “ensuring Nations Land Management Act adopts their own EA regime as per that processes better recognize Indigenous the provisions of that Act. In such cases, the community should be jurisdiction, laws, practices and able to apply their EA law as a substitute for CEAA 2012, but it is not governance systems”, however there clear in these cases if the community would be recognized as a needs to be specific guidance written for jurisdiction as defined in section 2 of the Act. This should be clarified, substituting a First Nation’s own EA law either in specific written guidance or in amendments to the Act. and as a recognized jurisdiction in Section 2 of the Act. 14 Currently, the federal Crown does not actively and meaningfully Partially Further to Comment #12 above, First CEAA consult affected Indigenous rights-holders at all applicable stages of Addressed Nations need to be involved in the very the EA process. The federal Crown must ensure that a meaningful early stages of screening and scoping and consultation process is offered at all of the following stages of the throughout the entire process. process, and ensure that results of such consultation are The Discussion Paper does provide incorporated meaningfully into the EA process: assurances through their guiding principles 1) Determination of whether an EA is required, and what type to have “participation of Indigenous (screening) peoples in all phases” and “inclusive and 2) Draft and final EIS guidelines (scoping) meaningful public engagement”, which is
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3) Assessment of alternative means (alternatives evaluation) encouraging, but not sufficient. 4) Draft and final EIS 5) Sufficiency and completeness determinations (review panels and NEB/CNSC processes) 6) Draft and final Crown EA report Prior to final decision by the Minister or GIC, including any determination of whether a project is in the public interest despite significant residual effects. 15 Currently, EIS guidelines do not specify how screening and Partially Addressing Cumulative Effects Section of CEAA assessment criteria inherent to the EA process will reflect Indigenous Addressed the Discussion Paper mentions Regional rights and interests, especially for those effects relevant to Assessments and identifying potential Indigenous peoples listed in section 5(1)(c) of the Act. The impacts on the rights and interests of Government of Canada must ensure that EIS guidelines specify how Indigenous peoples. However, the Crown the following types of criteria in the EA process will address effects on needs to further consider Criteria #2 and Indigenous peoples and Indigenous rights and interests: #3 with respect to significance of 1) Criteria to evaluate alternative means environmental effects, cumulative effects, 2) Criteria to assess the significance of environmental effects, residual effects and effects on First Nation including cumulative effects rights and interests. 3) Criteria to assess the significance of residual effects The Expert Panel also suggests greater transparency is needed in the decision- Criteria with respect to #2 and #3 above are particularly important making process with regard to significant under the current Act because the extent to which mitigation is effects. required and the extent to which such effects may be residual are determined by these criteria. Decisions about needs for mitigation and what is and is not a residual effect very much need to take into account effects not just on the environment but also on Indigenous rights and interests, for the benefit of all parties to an EA process. 16 Regional studies are meant to “to assess cumulative effects and other Partially The Discussion Paper has suggested CEAA considerations at a regional scale, providing a more comprehensive Addressed Regional Assessment. However, the Crown analysis of the area that will help to inform future environmental should consider the recommendations here assessment decisions.”(as per to further strengthen the use of Regional http://www.ceaa.gc.ca/default.asp?lang=En&n=B053F859-1#reg01). Assessments, and for further consultation The regional study provisions of the Act provide for the establishment with Anishnaabe rights-holders and groups. of collaborative study committees that may include Indigenous The Expert Panel also places strong peoples, and to conduct regional studies and study reports that must emphasis on incorporating Regional be considered in screening and other aspects of future federal EAs. Assessments (Section 3.5 of their report) in Currently, the regional study provisions in the Act are only very rarely the EA process with many similar applied, but if more extensively applied would provide a strong recommendations as found here. framework for collaboratively and proactively determining “Regional IA is an important tool to be Indigenous values, interests, and potential impacts to rights and the implemented in a future federal IA exercise of rights from development. We therefore recommend that regime.” We fully agree with the Expert the Agency, with further consultation with Indigenous rights-holders Panel’s findings and recommendations on and groups: this issue. 1) Develop clear triggers and/or guidance for when regional study EAs need to occur, and that operational planning and budgeting for such studies be conducted by the Agency on an annual or similar basis, with reasonable opportunities for Indigenous participant funding. 2) Conduct regional studies in major watersheds and ecosystems in Canada which remain relatively undeveloped but where there is a reasonable prospect of future development by resource extraction or significant linear corridor development
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3) Conduct regional sector-based studies in single industry sectors where long-term regional impacts are being experienced or are likely to be experienced (for example, the Ring of Fire in Ontario, the Montney Natural Gas Formation, Timmins-Kirkland Lake region gold mining, oil sands regions, 4) Consent to conducting regional studies when requested by Indigenous peoples for areas which have been heavily impacted by past resource extraction activities and which are subject to one or more current development proposals with relevant potential environmental effects. Establish standing regional EA committees with appropriate Indigenous membership in any regions (watersheds, ecosystems, etc.) where regional studies have been or will be conducted, to collaboratively implement and oversee the implementation of the results of regional studies with respect to future project proposals in the region. 17 Federal environmental assessment legislation should include an Not The Discussion Paper makes no mention of CEAA approach to assessing the sustainability of proposed projects. Addressed Sustainability. Indigenous rights-holders and groups require an understanding of the The Expert Panel also recommends that net contribution of a project to environmental, social and economic sustainability to be “central to the IA”, and wellbeing of their territories and their regions. Such an approach that “federal IA decide whether a project should include methods to assess the net contribution of a project to should proceed based on that project’s Indigenous livelihoods and community/regional wellbeing. contribution to sustainability”. We fully Sustainability assessment should include a strong focus on ways to agree with the Expert Panel’s findings and improve the positive elements of a project, such as improvements to recommendations on this issue. local and regional energy services and costs, improvements to local and regional water and wastewater infrastructure and water quality, improvements to local and regional health and education services and access, improvements to local and regional environmental monitoring and management services and governance, and improvements to area transportation systems and networks valued by Indigenous rights-holders. Legislating sustainability assessment will require additional consultation with Indigenous rights-holders and groups, with reasonable participant funding for interested Indigenous participants. Consultation should include methods to assess the net contribution of a project to Indigenous livelihoods and community/regional wellbeing, including contributions to infrastructure and services valued by Indigenous rights-holders. 18 [insert community name] has inequitably borne the negative effects Not Further to Comment #17 above, the CEAA of resource sector and public infrastructure development for too long Addressed Discussion Paper makes no mention of with few or no benefits. We understand that in rare cases (Voisey’s Sustainability. Bay Nickel Mine, White’s Point Quarry and Marine Terminal, Kemess The Expert Panel also recommends that North Copper-Gold Mine), the Agency has applied a Contribution to sustainability be “central to the IA”, and Sustainability test to the determination of whether a project is in the that “federal IA decide whether a project public interest. The Government of Canada must ensure that this test should proceed based on that project’s is applied to and be integral to all federal EA processes and decisions contribution to sustainability”. We fully within our territory, and that it specifically consider the agree with the Expert Panel’s findings and socioeconomic benefits and costs of the project for Indigenous rights- recommendations on this issue. holders using the “seven generations” concept of intergenerational For Anishnaabe rights-holders, the ‘seven responsibility. The Government of Canada must ensure that that generations’ concept of Intergenerational proponents be required to demonstrate such a contribution to responsibility is very important. sustainability by laying out its requirements in EIS guidelines, with
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sustainability factors used to: 1) Describe the purpose of the project 2) Describe and assess alternative means, including those that may offer infrastructure, water quality and energy opportunities in local and regional contexts, 3) Assess the significance of socioeconomic effects and Indigenous livelihood effects of the project on our community, and Ensure appropriate follow-up to confirm that the project did contribute to our community sustainability. 19 The legislative framework for assessing sustainability should be Not See Comments #18 and #19 above. CEAA derived from a general “sustainability lens”, inclusive of Indigenous Addressed perspectives and a seven-generation approach, and applied to all federal legislation, policies and programs, as well as to environmental assessments. Such a general “sustainability lens” would be legislated, and aligned with the Auditor-General Act and the Federal Sustainable Development Act. Developing a general “sustainability lens” in conjunction with Indigenous peoples will assist the federal government in fulfilling its mandates for reconciliation. 20 The federal government has used two basic approaches to trigger the Partially The Discussion Paper mentions “strategic CEAA application of environmental assessment legislation to a project: Addressed assessments” and “regional assessments” 1) Where a project requires a federal decision, or is receiving but does not mention sustainability federal funding, subject to specific exclusions, it requires an assessments. environmental assessment (CEAA) The Crown must include sustainability 2) Where a project falls within a list stipulated by regulation it assessment processes, and must consider requires an environmental assessment (CEAA 2012) additional mechanisms and triggers as mentioned here as well as other types of Notable examples of types of projects that are not mentioned as projects that may require an assessment requiring an assessment in the current Act include new roads in under the Act. National Parks, aquaculture facilities, oil or gas fracking, heavy oil and oil sands processing facilities, and different types of electricity- generating facilities.
Given the importance of the duty to consult and accommodate with regard to Crown decisions, the approach used under the previous (1992) version of the Act is most appropriate for Indigenous rights- holders. As such, federal environmental assessments would be triggered when: a project requires a Crown regulatory decision (including authorizations, permits or licences); a project is funded by a Crown agency of Crown corporation; a project is to be sited in any federally protected area, any area where there are Crown-Indigenous land use agreements or joint management agreements, or internationally recognized areas of natural significance; or a major project is of significant national AND Indigenous interest identified by regulation or a Ministerial order. In all cases projects that enter into consideration for triggering an environmental assessment will include Crown consultation with potentially impacted Indigenous rights- holders and groups. Potentially impacted Indigenous rights-holders and groups will also have a clear mechanism for petitioning the Minister to consider a project as a trigger for an environmental assessment, with appropriate consultation prior to any Crown decision to trigger or not trigger an environmental assessment for such a project.
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However, there are other approaches that could be used in conjunction with 1) above: a) Strategic environmental assessment of federal programs (e.g. infrastructure) that will create impacts on the environment and on lands and resources used by Indigenous peoples. Once complete, smaller projects funded under such a program might not require much, if any, additional impact assessment if participating Indigenous rights-holders agree to an initial agreement on a strategic environmental assessment approach. b) Sustainability assessments of proposed federal policies, legislation, programs or plans requiring a Cabinet or ministerial decision where those Crown decisions will create impacts on the environment and on lands and resources used by Indigenous peoples. Projects that require the disposition of federal lands or that are carried out via collaboration or joint management agreements with Indigenous rights-holders could be subject to specific sustainability assessments developed between cooperating Indigenous parties and federal agencies. 20 The Act prescribes that an EA must take into account effects of Partially The Discussion Paper mentions CEAA changes to the environment caused by a project on the health and Addressed “broadening the scope of assessment to socioeconomic conditions of Indigenous peoples (section 5 (1)(c)(i)). include environmental, economic, social The application of this area of effects assessment with respect to and health impacts to support holistic and Indigenous health effects has in our experience been shallowly, integrated decision making”. inconsistently and inadequately applied. In particular, the Specifically, a HHRA should be incorporated Government of Canada must make the following changes to address as mentioned here, and sustainability these shortcomings: assessment processes must be part of the 1) All federal EAs need to at a minimum include a screening level legislative framework. Human Health Risk Assessment (HHRA) of the effects of the project. Such a risk assessment must include and consider culturally valid doses, vectors, and portions of wild foods consumed by affected Indigenous peoples. For example, health effects from consuming fish are often assessed based on fillets from select species of sportfish but Indigenous peoples often consume non-sportfish species and/or consume other parts of the fish beyond fillets. 2) All federal EA follow-up programs need to clearly define environmental quality triggers which will require a detailed HHRA to be conducted, and empower Indigenous peoples to be deeply involved in follow-up programs for which they have a livelihood and health connection such as programs for measuring contaminants in wild foods. Such empowerment should include an onus on the proponent to ensure that adequate capacity and other measures are provided to allow affected Indigenous peoples to conduct such work and have it be taken seriously and applied in the proponent’s and regulators’ environmental management decisions concerning contaminants that may accumulate in unsafe levels in wild foods. Pathways to secondary effects on Indigenous peoples’ socioeconomic
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conditions from changes in diet as a result of avoiding health risk from contamination need to be included in the scope of factors prescribed in EIS guidelines, and in evaluating the significance of residual effects related to contaminants in wild foods. Such secondary effects may result from increased cost of living, loss of culturally important Indigenous knowledge, changes to community social fabric associated with sharing the proceeds of traditional use amongst community members, etc. 21 CEAA 2012 prescribes that an EA must take into account effects of Partially The Discussion Paper considers CEAA changes to the environment caused by a project on the current use of Addressed incorporating Indigenous knowledge, lands and resources for traditional purposes by Indigenous peoples however the recommendations here (section 5 (1)(c)(iii)). The application of this area of effects should be taken into account more assessment has in our experience been shallowly, inconsistently and specifically when considering the use of inadequately applied. Proponents and the Crown often discount Indigenous Knowledge. impacts to traditional use of species that are not rare and The Expert Panel also recommends the endangered by assuming or implying that indigenous people can and following: should simply go elsewhere to harvest such species. In particular, the “Traditional ecological knowledge, a subset Government of Canada must make the following changes to address of Indigenous knowledge which pertains these shortcomings: specifically to the environment, must be 1) The integrated importance of land-use, specific geographies, integral to IA.” access to those geographies, Indigenous knowledge, and the “The Panel uses the term Indigenous resources being used within those geographies need to be knowledge because it is much more than considered together when making recommendations in EIS traditional land use – sites on a map or guidelines for baseline studies and in assessing effects on physical activities. Indigenous knowledge is traditional use. In our experience, the following are all a value system that should be considered important in this respect: in parallel to western knowledge or a. The abundance and quality of the land/resource being science. It is a living entity that is used inseparable from the people who hold it.” b. Ease of access to and/or transport of the “Indigenous knowledge is current, forward- land/resource to be harvested or used looking and constantly evolving – the use c. Tenure over (in a traditional or contemporary sense) of the term traditional knowledge must not the specific geographic area for land or resource use. be confused to mean that it is antiquated d. Proximity to a "home base" or central location for or static.” harvesting efforts- be that a house, seasonal cabin, “Indigenous Groups should have an active camp site, etc.. role in the planning process, and that e. Indigenous knowledge of the area and ecology where better planning results in a better project. the land/resource is being used. Being involved at the application stage is 2) Effects to traditional use need to be assessed and reported on also important, as this is when cultural sites an individual community basis in EAs, and not on an aggregated are often impacted.” basis. While there may be common elements to the activities, resources, and locations where individual Aboriginal communities use lands and resources for traditional purposes, each community may be differentially and specifically impacted relative to the location of a proposed project. Individual communities may also have different preferences for mitigation approaches. 3) Specific study area boundaries for assessing traditional use must be set based on sensitive receptors to project effects identified in traditional use baseline studies, and/or a composite of the study areas for aquatic/fish and fish habitat and terrestrial ecology/wildlife value components of the EA. A combination of both is most preferred.
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4) It is critical that Indigenous rights-holders be able to provide informed consent for the collection, analysis, and incorporation of traditional use information into the EA process. Ideally, the community has complete control over the collection of baseline information on traditional use, and is empowered to provide and have accepted by the proponent and the Agency, specific guidance for its use in the EA process. 5) Pathways to secondary effects on Indigenous peoples’ socioeconomic conditions and health as a result of effects on traditional uses need to be included in the scope of factors prescribed in EIS guidelines, and in evaluating the significance of residual effects related to such changes. Such secondary effects may result from changes in diet, changes in income, increased cost of living, loss of culturally important Indigenous knowledge, changes to community social fabric associated with sharing the proceeds of traditional use amongst community members, etc. The emphasis on current use of lands and resources for traditional purposes by Indigenous peoples is wrong. Indigenous rights-holders typically look forward seven-generations and have plans, desires and perspectives on their use of lands and resources beyond current uses. By assessing project impacts only on current use of lands and resources, Indigenous peoples are denied the opportunity provided to other jurisdictions (e.g. municipalities) that can seek to determine impacts on future uses of lands and resources. Furthermore, the term “traditional purposes” implies an archaic view of Indigenous peoples as hunters and trappers, and not as modern peoples who see a wide variety of lands and resource uses as appropriate to their Indigenous ways of life. Going forward, legislation must be adapted to include current AND future use of lands and resources by Indigenous peoples, and not be encumbered by external definitions of what appropriate uses, traditional or otherwise, might be. 22 Cumulative effects assessment (CEA) in project-specific EAs, as Partially Cumulative effects are considered in the CEAA currently practiced under the Act and related Agency technical Addressed Discussion Paper, however the timelines to guidance, fails to address our community’s frequent concerns with have it occur in the early stages is not the cumulative effects of past projects on our traditional territory, or mentioned. the need to allow the environment to recover further as a result of The early engagement and planning should such past effects. In most cases, CEA is a paper exercise conducted also include cumulative effects by proponents to explain away or avoid responsibility for such past assessments. The use of Regional effects, or the need to adjust or reconsider the project in light of such Assessments may be the way to address past effects. We have little confidence that the Agency scrutinizes or these issues, but the Crown has to fully challenges CEA with respect to these past effects as they pertain to commit to and fund these considerations. our rights and interests, nor provides more specific CEA guidelines to proponents to ensure they are meaningfully incorporated into project-specific CEAs. In our view, consideration of the cumulative effects of past development needs to occur in earlier stages of the EA process. Specifically, the Government of Canada should make amendments to the Act and/or technical guidance to ensure that past cumulative effects of development are considered in the EA screening process to determine the level and type of EA required, and in the scoping phase to inform: 1) The EIS guidelines, including detailed requirements for baseline studies to specifically address such past effects and the
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trajectory of environmental recovery, and The alternative means assessment, to ensure that project alternative means and project design are assessed in part relative to ensuring the continued trajectory of environmental recovery from past effects of development and/or enhanced contributions of the project to furthering environmental recovery. 23 Adaptive management, inclusive of a seven-generation perspective, is Not The Discussion Paper in ‘Compliance and CEAA necessary for addressing the uncertainty and governance Addressed Enforcement” mentions they a requirements for dealing with unanticipated consequences of project consideration to: decisions. Adaptive management with a seven-generation “Explore a mechanism to amend project perspective should be built into adaptable project design, and should conditions to support the integration of inform decisions on EA follow-up programs. Data from adaptive adaptive management and technological management EA follow-up processes (including new resulting advances” information for cumulative effects assessment) can feed into, and The Expert Panel also supports the use of significantly benefit, regional and strategic assessments especially adaptive management, in mitigation: “Adaptive management should be used to where those assessments include agreements with Indigenous rights- modify mitigation and project design holders. wherever monitoring results vary from predicted results, with the ultimate goal of ensuring that sustainability outcomes are monitored, tested and met.”
24 EA follow-up needs to set the basis for ensuring an ongoing Partially The Discussion Paper considers 2-way CEAA consultation process and forum with Indigenous people following the Addressed dialogue in their Transparency and Public EA process including throughout the regulatory permitting process, Participation section of the report. and through the construction, operations, and A forum was not suggested by the decommissioning/closure of a project. It is crucial that any EA follow- Discussion Paper. The Expert Panel up program provide the following outcomes: suggests: “The Planning Phase would 1) A forum where affected Indigenous rights-holders, the Crown provide a forum to build trusting and the proponent meet and consult the communities on a relationships among proponents, all levels regular basis with respect to the items listed below, and where of government, and local residential and the affected communities are empowered to have an influence Indigenous rights-holders. It would also in decision making with respect to follow-up enable the early use of scientific 2) An accounting of progress and status of meeting the knowledge, Indigenous knowledge and proponent’s, with the Crown’s participation as required, community knowledge, and data to identify environmental commitments to Indigenous rights-holders valued features and areas and Indigenous specified in the proponent’s EIS and/or the Crown’s EA report to rights.” the Minister. Inclusive monitoring programs and 3) Monitoring programs that are led by Indigenous rights-holders compliance activities were also mentioned where there is a livelihood (traditional use, health, in the Discussion Paper. socioeconomic, cultural heritage) interest, including capacity Gaps still exist in adaptive management funding and support to conduct such programs and have the requirements, and detailed technical results of such programs taken into account in follow-up guidance. program reporting. 4) A basis and requirement for incorporating Indigenous community input into adaptive management requirements and decisions as they relate to EA conditions of approval and/or deviations from the assumptions on which the EA decision was based. As a result, the Agency should develop detailed technical guidance, for proponents and any party who may administer follow-up programs, that includes measures to ensure the above outcomes.
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We also ask that the Panel consider recommending changes to the Act that may further these desired outcomes as well. 25 It is currently an emerging practice by the Agency and other federal Not The Discussion Paper makes no mention of CEAA regulators to require proponents to develop environmental Addressed additional permitting or regulatory regulatory permitting application content concurrent with the EA approvals. process including for matters such as detailed plans for Fisheries Act The Expert Panel provides additional compensation, wildlife habitat compensation or other measures insight: under the Species at Risk Act, etc. While our community does not “While outcome-based conditions provide support the approval of such permit applications concurrent with the some flexibility, they may not effectively EA process, we do feel that having such detailed content on potential take into account the adoption of new follow-on regulatory permitting during the EA process is helpful in standards, such as enhanced air quality understanding the full scope of mitigation and whether it will be standards. There may also be effective in addressing our concerns. The Government of Canada circumstances where permits, should ensure this approach be more fully implemented for major authorizations or licences provided by projects within our territory, with the caveat that we still require a other regulators duplicate, contradict or meaningful consultation process including a review of draft permit conflict with IA conditions.” application details following the potential EA approval for a project and prior to the issuance of environmental regulatory permits, licenses, authorizations, etc. 26 Traditional/indigenous knowledge needs to considered in Not The Discussion Paper makes no mention of CEAA determining the need for the use of the precautionary principle. The Addressed using the precautionary principle. Canadian Environmental Assessment Agency Guide on Biodiversity The Expert Panel also recommends using and Environmental Assessment states “Where an activity raises the precautionary principle with these threats or harm to the environment or human health, precautionary statements: measures should be taken even if certain cause and effect “The new approach to federal IA should relationships are not established scientifically.” Indigenous continue to rely on the precautionary knowledge must be considered in determining if an activity raises principle and approach to address issues of threats or harm to the environmental or human health. Where scientific uncertainty.” Traditional/Indigenous knowledge identifies a potential effect not “Uncertainty about the evidence must take established scientifically the precautional principle should be applied. into account issues of risk and the precautionary principle.” 27 For any project within or near the [community name] traditional Partially The Discussion Paper mentions the CEAA territory, [community name] Indigenous knowledge must be included Addressed inclusion of Indigenous knowledge in determining if an environmental effect will occur. The act should alongside other evidence and science, but also consider “with respect to aboriginal peoples, an effect occurring does not make the jump to ensuring this in Canada of any change that may be caused to the environment” knowledge is used in determining if an that affects indigenous rights, interests, or way of life. environmental effect will occur. 28 The definition of “wildlife area” should be expanded to include any Not The Crown should consider a revision to CEAA area where [community name] practice traditional hunting. Addressed wildlife areas definition. The Expert Panel supports ensuring hunting areas are not impacted: “Currently, impacts of projects to Aboriginal and treaty rights and interests are poorly assessed (when assessed at all), and no clear, transparent method is applied. For example, an impact to wildlife may take into account the resulting impact on hunting and trapping practices but may fail to account for other secondary impacts, such as access to existing hunting or trapping sites.” 29 The description of and results of any early engagement and Not The Discussion Paper needs to be explicit
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CEAA information-sharing undertaken with aboriginal peoples should Addressed on how TK solicited and considered prior to include a description of how aboriginal Indigenous knowledge was submitting a project description. solicited, considered and included prior to submitting the project Early engagement in the planning stages description. A description should be included that acknowledges (see also Comments #12 and #15). worldviews that arose during early engagement process and how the indigenous worldview was or will be incorporated into project or EA process design. 30 The consideration of aboriginal Indigenous knowledge (ATK) in Partially See Comment #23. CEAA environmental assessments should not be discretionary. Proponents Addressed The Crown must provide guidance on should be required to take Aboriginal Indigenous knowledge into meaningful and sincere consultation in the account and to describe how this knowledge has been considered determination of environmental effects. and incorporated into each section of the EA. The consideration of aboriginal Indigenous knowledge cannot simply be a paper exercise and must include sincere efforts to understand the [community name] worldview, perspectives and existing and potential rights related to the proposed development. Specifically, meaningful and sincere efforts must be made to facilitate dialogue and solicit ATK sharing between [community name] and the proponent in the determination of environmental effects, and any ATK provided by the community in the course of such dialogue must be considered and integrated into the following aspects of an EA: 1) Effects assessments, including but not limited to potential effects of the environment on the project, effects of accidents and malfunctions, and cumulative effects. 2) Criteria for the determination of significance of adverse and residual adverse effects 3) Mitigation measures Follow-up programs. 31 When accounting for the environmental effects of a project or Not The Crown should update their definition CEAA activity that must be considered, CEAA 2012 describes fish and fish Addressed of fish habitat. habitat as defined under Section 2(1) of the Fisheries Act. This includes “spawning grounds and any other areas, including nursery, rearing, food supply and migration areas, on which fish depend directly or indirectly in order to carry out their life processes”. This is important because areas upon which fish do not depend either directly or indirectly are not protected. This could include areas such as wetlands or aquifers that provide ecosystem services which benefit fish which fish do not depend on.
A clear example of where this definition becomes problematic is riparian zones. These are the vegetated edges of waterbodies. They provide numerous benefits for fish including maintaining water quality, regulating stream flow, and preventing sedimentation. These services are critical to healthy habitat but fish do not necessarily depend on them. As a result, there is no clear protection set out in either CEAA 2012 or the Fisheries Act.
A more useful definition of fish habitat would include protection for the ecosystems and habitats that provide important services for supporting fish habitat. This would allow for consideration of habitats such as riparian zones. 32 Under CEAA 2012 Section 5 (2) (b) iii) any effects related to Aboriginal Partially The Discussion Paper includes text to
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CEAA people’s “current use of lands and resources for traditional purposes” Addressed describe the use of Indigenous knowledge must be considered. This clearly links effects of a project with alongside other sources of evidence. These Aboriginal land and resource use. Unfortunately, there is no guidance should be made mandatory. related to how current land and resource use is determined. The See also Comment #23. result is that a wide variety of efforts and methods are used to characterize it, much of which is poor (Paci, Tobin, and Robb, 2002; Ellis, 2005).
An important method for understanding effects on current use is to collect meaningful information through an Aboriginal Indigenous knowledge Study. While not mandatory the consideration of Aboriginal Indigenous knowledge in the Federal environmental assessment process is increasingly becoming a normal practice. The benefits associated with this approach are often discussed in relation to “best practices”. However, it is important to move past the “best practice” approach and focus on the overall benefit of genuine consultation and inclusion of Aboriginal knowledge and consideration of current land use and occupancy in decision making. By improving the consultation process (such as, by implementing regulations for thorough Land Use and Occupancy studies for any development project), the Government would be more successful in assessing related project effects (McGregor, 2012). In doing so, this would greatly improve the ability to avoid, mitigate, monitor and compensate Aboriginal peoples for some of the anticipated effects.
To improve the consideration of effects on Aboriginal peoples’ land and resource use, CEAA 2012 should include mandatory requirements for meaningful incorporation of Aboriginal Indigenous knowledge. 33 Under the Regulations Designating Physical Activities there are Not See Comment #28. CEAA several activities that are not designated which have the potential for Addressed The Expert Panel also supports the need for significant adverse environmental effects on fisheries. Some of these a precautionary approach and good activities are due to emerging technologies and so may not have been scientific rigour. designated as requiring an EA due to out-of-date knowledge. Take for example the designation of in-stream tidal power generation. The regulations require these projects to have a federal EA when they have “a production capacity of 50 MW”. 50MW is an extremely large installation and has large potential for significant impacts. Most recently, two turbines with a total capacity of 4MW were installed in Nova Scotia. These have generated significant concerns related to their potential impact on fisheries in the area. To reflect the concerns and unknowns related to this developing technology, the capacity threshold for which an EA is required should be reduced appropriately. This approach would fulfill principles of the Act including the precautionary approach, and would follow general good environmental impact assessment practice that unproven and novel technologies and methods require a greater degree and rigour of assessment. 34 Apart from aquatic species, species at risk are not listed as Not The Crown needs to consider First Nation CEAA “components of the environment” under Section 5 (1)(a). The Act Addressed knowledge and the protection of culturally does not explicitly require the consideration and assessment of important species to Anishnaabe rights- effects on non-aquatic species at risk. Although the Species at Risk holders.
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Act (SARA) does require potential effects of projects on species at risk While the protection of species at risk is and their habitat to be assessed in environmental assessments, this inadequately addressed in CEAA 2012, should also be made explicit under CEAA. Relying on provisions set culturally important species are not out in SARA is not sufficient since only migratory birds, aquatic addressed at all. Therefore, if a culturally species, and species on federal lands receive automatic protection important species has the potential to be under SARA. adversely impacted by a proposed project but is not a federally listed species at risk, it Therefore, if effects on a species at risk would not occur on federal will not trigger an assessment. lands, and/or if the species at risk is not aquatic, then any changes to The Expert Panel’s views on using the best their populations or habitats would not need to be considered, available science for the protection of according to the Act. species include: “New legislative requirements are needed Even more could be done to protect species at risk than to include to ensure that IA is evidence-based and federally listed species at risk into the list of “components of the contains the best science. For example, the environment”. There are many species at risk that are not federally Species at Risk Act contains explicit listed, because of long multi-year processes for consideration and requirements to consider science, designation by the Committee on the Status of Endangered Wildlife community knowledge and Indigenous in Canada and listing by the Governor in Council. During this time, knowledge. This includes information these species receive no additional protection. For example, out of requirements for written reports as well as the 1348 terrestrial species at risk in British Columbia, only 106 are guidelines on involving experts in its legally recognized under the species at risk act. To adequately protect regulatory processes, how information all species at risk, it should not only be federally listed species at risk must be considered in decision-making and that require consideration under CEAA. reporting requirements for species monitoring. These requirements provide a While the protection of species at risk is inadequately addressed in strong foundation for the integration of the CEAA 2012, culturally important species are not addressed at all. best available information and reduce the Therefore, if a culturally important species has the potential to be risk that science will be omitted from adversely impacted by a proposed project but is not a federally listed decision-making processes.” We fully species at risk, it will not trigger an assessment. agree with the Panel’s findings and recommendations on this issue. In order to adequately protect many species at risk and culturally important species, environmental assessment cannot occur only at a project level. Project-specific assessments often miss impacts on species with large ranges and migration patterns. Some species at risk may move to other habitat, or even expand their range, as a result of a project. But just because that additional habitat is available to them does not mean that impacts to the species are not serious. In some cases, as has been noted with woodland caribou, species may expand their home ranges as a result of cumulative disturbances and stressors, which results in higher levels of energy loss and higher risk of predation.
Although the EA process uses cumulative effects thresholds to determine whether an unacceptable change may occur for a species as a result of a project, specific objective cumulative effects thresholds do not exist for the majority of species at risk. As a result, decisions about the significance of effects are often made based on how the potential effects of the project compare to total cumulative effects; it can then be determined subjectively that the project effects are not considerable compared to existing effects, without knowing whether or not a threshold has already been reached.
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Recommendations: 1) All federally and provincially listed species at risk should be listed as “components of the environment” in the Act. Proposed projects with potential effects on any of these federally or provincially listed species at risk should trigger an environmental assessment.
2) “Any culturally important species identified by Aboriginal communities during the collection of ATK” should be listed as “components of the environment” in the environmental assessment act. Proposed projects with potential effects on any of these culturally important species should trigger an environmental assessment.
3) As a result of inherent uncertainty surrounding the impacts of a proposed project on species at risk, there must be mandatory and legally-binding follow-up monitoring, adaptive management, compliance and enforcement after a project has been approved. Adaptive management must be used as a strategy for addressing ongoing uncertainty, not as a mitigation measure. It also should not be an option in cases where project related effects would cause permanent harm to the environment. There should be legal mechanisms for Indigenous people to be involved in follow-up, monitoring and enforcement.
4) The regulatory framework must make it clear what types of mitigation measures are acceptable for protecting species at risk and culturally important species, and must provide a strategy for assessing whether or not mitigation measures will achieve the desired outcomes.
5) Follow-up and monitoring data should be made public, and should be used to inform future environmental assessments, including regional and strategic assessments.
6) Time limits and conditionality should be applied so that authorizations can be revoked if follow-up shows mitigation measures are inadequate or ineffective.
7) Assessments should consider a range of alternative scenarios, including a “no development” scenario. In some cases, certain species at risk or culturally important species may be too vulnerable, or their habitat may be too sensitive, to allow for any additional development within a particular area.
8) Protection of SAR and culturally important species should be a key part of a set of sustainability-based decision making criteria, which should be developed in order to guide future environmental assessment.
9) Regional environmental assessments should be required in cases
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where there are species at risk and/or culturally important species that have large home ranges and may be impacted by the proposed project. In these case, potential impacts of the proposed project must be considered in conjunction with other projects, effects, and stressors throughout the species’ range.
10) In situations where an assessment is needed for a proposed project that may impact species at risk or culturally important species, it should be a legal requirement that scientists establish cumulative effects thresholds for specific species at risk and culturally important species. Projects occurring within the home range of species at risk or culturally important species that are migratory or that have large home ranges must be assessed according to these thresholds. 35 The severe impacts on the environment resulting from potential Not The full assessment of worst case scenarios CEAA accidents and malfunctions such as pipeline spills, tailings dam Addressed should be mandatory for all assessments. failures, and oil tanker accidents are not assessed because review panels typically accept proponents’ positions that the likelihood of such occurrences is too low to be worth assessing the potential effects. This fails to acknowledge the consequences aspect of the risk equation as well as the differing risk acceptability of indigenous peoples which is founded on a long-term and sustainability viewpoint. This is in opposition to s.19.(1)(a) of the Act and results in sometimes serious risk to environment and human health. The full assessment of worst case scenarios should be mandatory for all assessments. 36 The assessment of human health, within the EA framework, includes Not The Expert Panel also supports using First CEAA the quantification of potential risks due to exposure to chemicals in Addressed Nation knowledge in baseline studies: the environment associated with baseline, project and future “Indigenous knowledge and community scenarios (of a proposed project). The quantification of risks in both knowledge should be used to scope the baseline and future scenarios, is directly related to the quality baseline studies and analysis. Furthermore, and relevance of the baseline data. With respect to Indigenous rights- Indigenous and community knowledge- holders, who rely heavily on the local environment for food, holders should be able to collect baseline recreation and cultural practices, the collection of baseline data is of data with scientists. The best way to utmost importance to the assessment of potential human health integrate different sources of knowledge risks. Although project-related risks are typically the focus of should be determined on a project-by- environmental assessments, for Indigenous rights-holders expected project basis in discussion with Indigenous to be impacted by a project, health risks associated with the baseline, and community knowledge-holders and project and future scenarios are all of major concern. As such, the scientists.” need for quality baseline data to effectively assess potential risks is a The Expert Panel provides this statement: must within the EA process. For those project sites, with potential “Indigenous Groups may be best placed to impacts to Indigenous rights-holders, the collection of baseline data lead health-impact studies on community should be completed in collaboration with Indigenous rights-holders members, whereas proponents may be to ensure data collected are conducive to the assessment of risks on best placed to gather many kinds of a very site-specific scale. The results of the human health risk baseline bio-physical data.” We fully agree assessment must clearly provide a fulsome discussion of potential with the Expert Panel’s findings and risks associated with all exposure scenarios (i.e., baseline, project, recommendations on this issue. and future) so that communities have a thorough understanding of the health risks associated with current conditions, the proposed project and future conditions. Any uncertainties associated with baseline data and conditions must be clearly identified and discussed.
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37 Within the human health risk assessment, emphasis is placed on the Not See also Comment #22 CEAA assessment of impacts of a specific project (alone) on human health, Addressed Human health impacts are also one of the rather than the risks associated with potential cumulative effects. pillars of sustainability mentioned in the Statements are often made, within the human health risk Expert Panel report. assessment, that no significant adverse effects to human health are expected due to the construction, operation and decommissioning of a project. This can be misleading given the potential cumulative effects on human health due to the presence of other stressors in the environment. The human health risk assessment should include a clear discussion of impacts to human health due to potential cumulative effects, so that those residing near the proposed project area have a full understanding of the risks to human health due to the project AND the potential for cumulative effects. The EA framework should provide a means by which the results of the cumulative effects assessment are considered more heavily in the decision to allow a project to proceed. 38 The assessment of human health risks must consider the strong Not See Comments #22 and #39. CEAA reliance of Indigenous rights-holders on the environment, when Addressed applicable. Consideration of Indigenous land use and activity patterns must be included in all relevant phases of a human health risk assessment process as part of an EA. Any screening guidelines, criteria and/or standards used to identify and assess chemicals of potential concern must be protective of all potential receptors being considered in the environmental assessment including Indigenous community members. 39 In the assessment of potential human health risks associated with the Not Baseline data is required in addition to CEAA use and consumption of wildfoods (including for medicinal purposes), Addressed predictive modeling. See also Comment more emphasis on the collection of samples is required in the #38. environmental assessment process. The use of predictive modelling is acceptable, however, should not be the main source of data in support of baseline studies and/or monitoring programs. For Indigenous rights-holders who may rely heavily on potentially impacted wildfoods, the collection, analysis and assessment of wildfoods would lessen the uncertainty in the calculation of predicted risks to human health for this exposure pathway. As such, there should be clear direction provided in the environmental assessment process to use collected data from wildfoods to assess potential risks to human health, rather than the use of predictive modelling alone. This applies to the collection of baseline data, as well as any monitoring programs that are implemented during the project operation and closure phases.
40 Many Indigenous rights-holders have expressed a strong interest in Not The Crown should offer to attend CEAA having regulators visit their potentially impacted lands during the Addressed community meetings that occur in environmental assessment process for a proposed project. This would Anishnaabe rights-holders as part of EAs. allow decision-makers to see first hand how proposed projects could affect the health of Indigenous rights-holders. The environmental assessment process would benefit from in-person meetings between potentially affected Indigenous rights-holders and decision-makers, within communities. 41 There is no process within the Act to consider the potential socio- Partially The Discussion Paper includes broadening CEAA economic adverse effects on indigenous peoples that are NOT Addressed the scope of assessment to include socio-
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necessarily tied to the land but interact with the proposed economic considerations. development’s human resources, employment and wage investments Further recommendations here should be in a region. It is recommended that there be a requirement to incorporated. meaningfully consider the potential socio-economic benefits or positive effects in a systematic way so that a) the project’s risks and benefits can be weighed within the EA process itself and b) First Nations, Métis and Inuit leadership and communities may also have a way to carefully assess the risks in relation to the opportunities; Related to this issue is a need for regulatory required socio-economic management, monitoring and/or enhancement measures to address socio-economic effects so that positive and negative effects may be monitored over the construction, operations and closure and decommissioning of the project.
42 The Agency currently does not have expertise on the panel for the Not Additional expertise in these fields is CEAA regulatory review of the Act to reflect the complex social and Addressed recommended. economic aspects that inter-connect with natural resource The Expert Panel found: development. Appropriate expert, governmental and independent “Some participants thought that experts representation is needed to meaningfully assess the social and conducting the EIS should have better economic adverse and negative effects of a proposed project. This certifications and accreditations. includes representation from the Centre for Aboriginal Health Moreover, participants said that, in certain Research; Employment and Social Development Canada; Council on cases such as with social impact studies, Corporate Aboriginal Relations; Indigenous and Northern Affairs; and the federal government does not have the most importantly, regional Indigenous organizations with an in-depth proper expertise and training to challenge understanding of the socio-cultural and socio-economic context of the proponent’s studies.” the communities that may be potentially affected by the proposed development. 43 Within an EA, potential effects are not carried forward unless they Not The Expert Panel also agrees that positive CEAA are determined to be “significant”. With regards to adverse socio- Addressed effects need to be carried forward: “Where economic effects, these are rarely determined to be ‘significant’ as it is determined that a project would they are typically limited to project specific consideration and not contribute positively to sustainability, the carried forward to a cumulative effects assessment and/or mitigation decision statement would outline all and/or residual effect characterization. When positive or beneficial conditions that can be enforced by the socio-economic effects are identified, these are not carried forward Commission. The decision statement, along within the EA at all as the current process is focused on addressing with the commitments in a compliance negative effects. The positive effects are then dismissed. Positive agreement, and an agreement for effects need to be carried forward in a parallel, transparent process enforcement of conditions by other on par with the environmental assessment to capture the full range jurisdictions or regulators, would form the of inter-connected social, economic and ecological effects. IA decision.” 44 The current EA process creates barriers to a holistic understanding of Not The Expert Panel provides insight on this CEAA effect implications due to a silo approach to assessing effects. Socio- Addressed issue: “CEAA 2012 provides that an EA may economics are typically limited to labour, employment and housing; take into account community knowledge Indigenous knowledge and land use information is typically put in an and Aboriginal Indigenous knowledge. The Appendix section. No explicit linkages nor analysis is done to lack of a requirement for consideration of accurately reflect the implications to socio-economic and community Indigenous knowledge has resulted in EAs wellbeing. omitting this information from all stages of An integrated approach to presenting information is therefore current assessment (such as baseline required, such is the expectation and practice in other regulatory studies, analyses, decision-making and contexts and development contexts (e.g. Nunavut Impact Review monitoring). It is also common practice to Board; Mackenzie Valley Environmental Impact Review Board; use of relegate Indigenous knowledge to a
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the Equator Principles in internationally financed projects; the separate appendix, considered in isolation, Sustainable Livelihoods Framework, or the Millennium ecosystem which prevents this valuable knowledge assessment) which could also fully describe the link to community from influencing project and EA outcomes, wellbeing and sustainability. including project and mitigation design, analysis and decision-making.”
4.2 NATIONAL ENERGY BOARD
Section Comment/Gap/Issue Adequacy Recommendation
1 NEB Currently the NEB board members are widely Partially The Discussion Paper partially addresses this with the comprised of former corporate professionals from the Addressed following four considerations: oil and gas sector. The composition of NEB board members has limited diversity in demographic Enhancing the diversity of the Board and Hearing components such as race, age, and gender. Commissioners
The NEB must modernize its board membership and Increasing Indigenous representation among the Board and Hearing Commissioners and requiring roster of staff to advise the board in the following expertise in Indigenous knowledge ways: Maintaining the National Energy Board in Calgary, Ensure Board membership that consists of while eliminating the residency requirement for the Indigenous people. Board and Hearing Commissioners. Hire board staff with knowledge and experience in subject areas such as: Greater participation of Indigenous peoples on community development, socio-economics, assessment boards and review panels and in regulatory Indigenous Knowledge/ Aboriginal processes Indigenous knowledge, Indigenous rights, Indigenous law, Indigenous fisheries, Indigenous business, Indigenous spirituality, However, the Discussion Paper did not carry forward panel Indigenous ecology and water resources, recommendations that support this comment, including: Indigenous approaches to environmental assessment, and other sectors such as 3.4.1 The CEO of the CETC (or NEB in the immediate term) renewable energy, energy efficiency, should be responsible for establishing a competency matrix fisheries and aquatic ecology, terrestrial ecology, and climate change mitigation/ for hearing commissioners and CETC directors, which adaptation represents a broad array of skills, experience, and Ensure better representation of Indigenous backgrounds, and for ensuring that each hearing panel peoples in decision making and oversight contains a cross-section of those competencies. Because roles such as membership on project review Indigenous knowledge is essential to inform sound decision- panels making, and to enable real nation-to-nation relationships Ensure project review panels consist of a we further recommend that every joint hearing panel diverse range of background experiences to provide a well-rounded assessment and consist of at least one Indigenous member with extensive determination on whether a project is in the experience with Indigenous issues and worldview. Further, best interest of Canadians the competency matrix should be subject to Consultation Ensuring diverse project review panel and engagement, made public, and updated on a regular membership that consists of individuals from basis. See the Figure 7 for additional information regarding
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industry, environmental, community/ social these competencies. development, and Indigenous Knowledge backgrounds as part of the panel 3.4.3 Enshrined in the CETC Act, we recommend that the composition and not having the panel biased CETC affirm the current NEB conflict of interest rules, to one specific expertise or interest area. including industry cooling and post-employment provisions, to reduce the risk of real or apparent conflict of interest. In addition, the CETC conflict of interest policy should provide for the revocation of a Director or Hearing Commissioner appointment in the event of serious real or perceived conflict of interest that is further bolstered by guidelines or regulations that can be updated periodically.
3.4.4 Finally, we recommend the establishment of an Elders External Advisory Council, in Consultation with Indigenous peoples, charged with advising the Board, CEO, and Hearing Commissioners on Indigenous issues, as well as reviewing CETC practices, and helping to ensure high quality inclusion and interpretation of traditional knowledge.
2 NEB A selection process for Board members that ensures Partially The Discussion Paper partially addresses this with the diversity and inclusivity for Board appointments, and addressed following three considerations: transparent and public selection process, is necessary to restore public trust and ensure the board is serving Enhancing the diversity of the Board and Hearing in the public interest. In practice, this would involve Commissioners
the following steps in the Board selection process: Increasing Indigenous representation among the Board and Hearing Commissioners and requiring Public participation, such as public hearings, expertise in Indigenous knowledge on Board member selection
Having Board selection processes carried out Increasing public participation opportunities in in a more transparent manner – such as technical hearings, including enhancing the support having a parliamentary committee with available to all participants to help them navigate Indigenous participation to oversee the regulatory processes selection of board members
The outstanding recommendation being carried forward is: Have all of the above provisions reflected in legislation
via changes to Section 3 of the National Energy Board “Having Board selection processes carried out in a Act. more transparent manner – such as having a parliamentary committee with Indigenous participation to oversee the selection of board members” .
3 NEB The National Energy Board as a regulator is best suited Addressed The Discussion Paper addresses this with the following to provide lifecycle oversight of projects in its domain, options under consideration: and the Canadian Environmental Assessment Agency is best suited for the administration of Environmental Establishing a single government agency responsible Assessments (EAs), including those currently under the for impact assessment and for coordinating consultations with Indigenous peoples for federally NEB’s regulatory jurisdiction. This will ensure Federal designated projects
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EAs are delivered in a consistent manner across project For major energy transmission, nuclear, and offshore sectors, provides Indigenous rights-bearing oil and gas projects, the agency and life-cycle communities with consistent environmental regulators would jointly conduct impact assessments as part of a single, integrated review process assessment experiences and environmental assessment relationship building with the Crown One note though is that staff capacity of life-cycle regulators through a single agency (one-window), and ensures is not discussed explicitly and needs to be appropriately that a single Crown agency, and its staff, are able to attended to if/when these considerations are put into develop long-term knowledge of Indigenous practice community rights and interests, sustainability objectives, and territorial knowledge. This will also ensure that the NEB will develop similar efficiencies and Indigenous relationship benefits for its lifecycle oversight of energy projects. Considering this we recommend the following:
Have the responsibility for conducting the environmental assessment for NEB-regulated projects move to the Canadian Environmental Assessment Agency (CEAA); including CEAA maintaining the Crown Consultation role for projects Have the responsibility of lifecycle regulation, including ensuring conditions of approval are met, fall to the authority of the National Energy Board Ensure the NEB has appropriate staff capacity and expertise to serve as the lifecycle regulator of federal energy projects with the ability to develop effective long- term relationships with Indigenous rights- bearing communities by building up the staff roster with individuals with diverse subject matter expertise that will ensure projects are safely regulated from pre-construction planning all the way to post-closure monitoring. This includes retaining staff or external experts with expertise in subject areas such as: engineering, community development, socio-economics, Indigenous Knowledge/ Aboriginal Indigenous knowledge, Indigenous rights, Indigenous law, Indigenous fisheries, Indigenous business, Indigenous spirituality, Indigenous ecology and water resources, fisheries and aquatic ecology, terrestrial ecology, and climate change mitigation/ adaptation
Have all the above recommendations adequately reflected in the legislation. Applicable sections of the NEB Act include sections 9, 10, 11, 12, 14, 15, and 17- 24
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4 NEB Better, deeper and more robust consultation with Partially These comments are addressed in the Discussion Paper Indigenous Peoples before a project decision is through the following considerations: finalized is a necessary improvement to the Addressed environmental approvals process of NEB-regulated Direct engagement between Crown representatives projects and applicable legislation and policy. More and Indigenous peoples to discuss and understand potential project impacts to facilitate early planning specifically the following is recommended: and issue identification
Early and deep Indigenous engagement and Being responsive to Indigenous rights, jurisdiction and consultation by the NEB at the screening decision making, with space created to enable stage of ESAs and Section 58 exception increased Indigenous involvement, including decisions to determine potential Indigenous Indigenous-led assessments rights impacts.
An additional round of Board consultation Early and regular engagement and participation based with impacted Indigenous rights-holders on recognition of Indigenous rights and interests from between the release of the Conditions of the outset, seeking to achieve free, prior and informed Approval report and the NEB issuing of a consent through processes based on mutual respect decision on a project. This must be and dialogue integrated into the process for ALL projects
under review and not decided upon on a Formalizing the co-development of frameworks for project-by-project basis collaboration with Indigenous peoples on Enhanced, deep and meaningful consultation environmental assessments and regulatory processes
processes regarding changes to NEB legislation and Convening specific working tables with Indigenous policy; more specifically conducting consultation peoples during assessments including having Indigenous representation in the groups of people tasked with developing policy and Greater participation of Indigenous peoples on drafting legislative changes. assessment boards and review panels and in regulatory processes The NEB must require the integration of indigenous Indigenous knowledge, and traditional land use and The Expert Panel report made the following occupancy information into ESA filing requirements for recommendations that address our comments and were not proponents and its decision-making- where carried forward in the discussion paper, but should be Indigenous rights-holders are willing to share this carried forward: information. It must also ensure integration of other 2.3.1 That the Minister of Natural Resources, working under key indigenous planning documents for their the framework defined by the Ministerial Working Group, traditional lands or communities, including but not and in partnership with First Nation peoples, define limited to Land Use Plans, Environmental Management authorities for Crown consultation in the strategic phase of Plans, Consultation and Accommodation Protocols, a project review, in the detailed assessment and regulatory Community Social and Economic Development Plans, decision-making phase of a project review, and for the and Asset Management Plans amongst others oversight of CETC operations on an ongoing basis. This must include clear guidance regarding who may or must be physically present on behalf of the Crown during Consultations, not just overall authorities.
Expert Panel Note: Without clarity on this fundamental question we believe it will be difficult for government and First Nation peoples to foster nation-to-nation relationships without being sidetracked by process questions and doubt about the legal legitimacy of consultation process, however well-designed and well-meaning they might be. We would
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further suggest that any agent of the Crown working with Indigenous peoples have strong consultation skills (and be present on the ground), in addition to subject-matter expertise.
2.5.1 That the Crown retains flexibility in its processes, reflecting the principle that each First Nation has an independent relationship with Canada. In addition, we encourage the government to do more to meet with Indigenous peoples on their own terms, and in their own places, to the greatest extent possible.
Expert Panel Note: We are aware of the logistical difficulties of including a variety of Indigenous languages, or hosting proceedings outside of major population centres (our own Panel’s engagement sessions were predominantly held in large cities). These considerations notwithstanding, we feel there is a better middle ground to be reached, and that government and industry will benefit immensely from increased engagement, just as much as First Nation peoples. The benefits of engagement flow in both directions.
3.2.1 The enabling legislation of the Canadian Energy Transmission Commission should establish it as an independent, quasi-judicial body, with full authority to approve or deny major projects - based on technical criteria, detailed environmental assessment and project-specific conditions including social, economic, lands, and municipal interests - that have passed a Governor in Council review. We further recommend that detailed project reviews of major projects typically be concluded within 2 years from time of filing, to allow adequate time for meaningful Consultation and engagement.
5.4.1 That the CETC Act would enable the creation of Regional Multi-Stakeholder Committees. The intention in operation is that these Committees be formally integrated into the CETC’s management and continuous improvement systems, allowing all participating parties to assess aspects of the CETC’s practices and outcomes, and make recommendations for improvements.
One area of enhancement in the discussion paper and Expert Panel recommendations are regarding amending specific legislation to reflect these recommendations, namely amending sections 9, 10, 11, 12, 14, 15, and 17-24 of the NEB Act. Those amendments would include:
Results of First Nation community consultation including traditional knowledge are consistently
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and meaningfully integrated into EA documentation and decision-making; and,
EA follow-up meaningfully considers First Nation interests in its development and implementation;
5 NEB The National Energy Board currently holds a mandate Not There is mention of cumulative effects and assessing a to “regulate pipelines, energy development, and trade addressed project’s contribution to greenhouse gas emissions and in the Canadian public interest based on economic, climate change in the context of the Pan-Canadian environmental, and social considerations” (National Framework for Clean Growth and Climate Change and Energy Board, 2014). As part of their mandate, the applying this framework to regional assessments. NEB is responsible for: However, beyond that, evaluating climate change impacts Efficient processing of applications receives no mention in the Discussion Paper as well as the Regulation of pipeline traffic, tolls and tariffs Expert Panel Report “Forward, Together” therefore the Regulation of traffic, tolls, and tariffs comment is being carried forward as a recommendation for Export and import of energy the Government of Canada to move forward with Energy studies and advisory function implementing these recommendations. Given the commitment made by Canada in the Paris Agreement to reduce greenhouse gas emissions economy-wide by 30% below 2005 levels by the year 2030 along with the possibility of a shifting energy landscape, the NEB should:
Make sure the contributions projects would make to climate change measured in tCO2E are evaluated and factored into the decision- making criteria for environmental assessments o More specifically, modelling to indicate the projected GHG emissions associated with a project for its entire lifecycle from construction all the way up to decommissioning and post-closure monitoring. Along with evaluating the impacts the project would have on climate change as measured in tCO2E, have assessments include GHG reduction and mitigation measures identified and incorporated into the conditions of approval for projects moving forward As part of the energy studies and advisory function the NEB plays, the NEB should commence with conducting studies on the long-term outlook of renewable and low- carbon energy uptake in Canada including identifying the opportunities and barriers to renewable and low-carbon energy uptake within Canada and policies and programs
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that could facilitate a shift to de-carbonizing Canada’s energy system
6 NEB Due to changes that were instituted via CEAA 2012 and Addressed Currently the discussion paper partially addresses our other environmental regulatory amendments that comments with the following recommendations under came out of the 2012 Federal Budget Bill, Bill C-38, consideration: authority regarding final approvals on projects formerly reviewed and evaluated by the National Direct engagement between Crown Energy Board rests with Governor in Council (i.e. representatives and Indigenous peoples to discuss and understand potential project impacts Federal Cabinet). This means that regardless of the to facilitate early planning and issue identification National Energy Board’s decision regarding a project it has reviewed, the Governor in Council; which is Strengthening legislation to explicitly require comprised of the sitting government have final say on assessment of impacts on Indigenous peoples whether a project proceeds.
An independent regulator will make decisions based on Establishing a single government agency the best interest of the public and Indigenous Peoples responsible for impact assessment and for as opposed to the mandate of Cabinet which can hold coordinating consultations with Indigenous partisan influence in decision-making. peoples for federally designated projects
We fully expect the Crown to make future decisions For major energy transmission, nuclear, and offshore oil and gas projects, the agency and life- regarding the regulatory independence of the NEB. cycle regulators would jointly conduct impact Those future decisions will have tremendous impacts assessments as part of a single, integrated on our rights and interests. We require deep and review process meaningful Indigenous consultation on all future Crown decisions that will impact the independence of Decision making retained by Minister(s) or the NEB as a regulator. Cabinet based on whether projects are in the public interest, to ensure accountable We must be satisfied that the NEB is not a “captured government
regulator” and that the members of the Board include Maintaining legislated timelines to provide clarity Indigenous representatives and members with diverse and predictability, while allowing ministerial backgrounds from industry, environmental protection, approval of exceptions to legislated timelines in community/ social development, and Indigenous special circumstances (e.g. to enable cooperation Knowledge. We must also be satisfied that Board with other jurisdictions) members have a breadth of subject matter knowledge related to our rights and interests. Maintaining authority for enforceable assessment conditions and explore a mechanism to amend Restoring the NEB’s independence from partisan project conditions to support adaptive management and technological advances influence and energy industry influence is important.
Crown consultation on decisions related to the future Greater participation of Indigenous peoples on regulatory independence of the NEB must include assessment boards and review panels and in consultation on oversight and accountability regulatory processes approaches and procedures that can ensure projects are safe and in the best interest of Indigenous peoples Clarifying roles for consultation and of Canada, socially, environmentally, and economically. accommodation in regulatory processes to ensure the honour of the Crown is respected Canada has a fiduciary duty to consult and if necessary accommodate Indigenous peoples if there is the Recommendations that were in the Expert Panel that we potential to infringe Section 35 constitutional rights or advise be implemented include:
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Treaty Rights. Even if the If the NEB is able to function as an independent regulator, the duty to consult rests with the Crown, and not a regulatory body. As such, 3.1.1 Authority should be enshrined in legislation for the Governor in Council may continue to represent the Governor in Council to make the determination of whether Crown and conduct Crown consultation processes, and or not a major project is in the national interest, based on a where applicable, engage in efforts to accommodate public report and recommendation from the Minister of Indigenous rights and interests. Natural Resources. Furthermore, this phase, from preliminary project filing to Governor in Council Decision, should typically happen within 12 months, with three months for GIC decision. The purpose of this phase of the process would be to determine whether a major project may proceed to a detailed project review.
1.5.2 We further recommend for major and significant projects that the CETC exercise this authority through Joint Hearing Panels which integrate CEA Agency-led project-level Environmental Assessments and the CETC decision making process to achieve the dual goals of delivering a single regulatory review process (not parallel technical and environmental review processes), and assuring that all federally-mandated Environmental Assessments are conducted in a consistent, high quality manner (under the authority of the CEA Agency). Five person Joint Hearing Panels – with at least one Indigenous member – would be comprised of two Commissioners from the CETC, two from the CEA Agency, and a final independent Commissioner.
7 NEB Currently, as identified in the Fall 2015 Commissioner Addressed The Discussion Paper addresses this comment through the of the Environment and Sustainable Development following considerations: Report 2 on Oversight of Federally Regulated Pipelines, the NEB’s tracking of company compliance with Greater transparency on reasons for pipeline approval conditions is inadequate. environmental assessment and regulatory decisions and timely feedback on how public input was considered Although the Board has been taking steps to improve Clearer transparency requirements for more its track record and regulatory changes have occurred projects (e.g. assessments of projects on federal such as the Pipeline Safety Act coming into force in lands, notice of proposed works on navigable June 19, 2016 which enacts the polluter pays principle, waters) clarifies the audit and inspection authority of the NEB, Inclusive monitoring and compliance activities, and may ensure companies maintain responsibility for so that life-cycle regulators and permitting their abandoned pipelines; there is more to be done to departments work closely with Indigenous fully modernize the practices of the National Energy peoples, communities, and landowners Maintaining the authority of life-cycle regulators Board in regards to lifecycle regulation of energy to integrate enforceable conditions under their infrastructure and Indigenous rights and interests. areas of responsibility Maintaining authority for enforceable assessment In regards to compliance, enforcement, and ongoing conditions and explore a mechanism to amend
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monitoring, the NEB should strengthen mechanisms project conditions to support adaptive that ensure the Conditions of Approval on projects are management and technological advances met, compliance on these conditions is maintained, Expert Panel recommendations that also address these and Indigenous rights-holders are fully engage by the comments that the Government of Canada needs to NEB as part of those strengthened mechanisms. consider when drafting legislative changes are:
1.5.1 Enshrined in the CETC Act, a modernized National Energy Board, hereafter known as the Canadian Energy Transmission Commission (CETC) will have the mandate and authority for the licensing of transboundary pipeline and transmission line projects, including the imposition of specific conditions on project proponents. Major projects must first be determined to align with the national interest by the Governor in Council, before any licensing hearing.
2.2.1 The government fund an First Nation Major Projects Office, under the governance of First Nation peoples (determined as they see fit). Responsibilities of this Office would include but not limited to defining clear processes, guidelines, and accountabilities for formal Consultation by the government on energy transmission infrastructure, regulatory processes and assessing compliance with those guidelines. In addition, the Office would define and disseminate best practices, including coordinating and/or supporting Environmental Assessments and regulatory reviews, to help interested Indigenous communities enhance the quality of their participation in formal Consultation and engagement processes.
2.4.1 The CETC and the Minister of Natural Resources should move to produce guidelines for early engagement, that allow industry and First Nation peoples to communicate more freely and without prejudice to outstanding claims of right, or subsequent project reviews. This would include pre-filing information sessions, town halls with proponents under the oversight of the regulator, and more.
5.1.1 That the CETC regulate and clearly communicate its standards and approach to ensuring compliance with standards and expectations for management systems, and water protection specifically, in a way that can be understood by non-specialists, and that it should engage its (proposed by us) Regional Multi-Stakeholder Committees to identify specific elements for review and revision, as appropriate.
5.1.2 We further recommend that the CETC explain in plain language how rules for liability work, how the relative
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monetary amounts are calculated, and consider a public review of the surety bond amount to ensure that it adequately addresses risk as intended.
5.2.1 The CETC immediately improve transparency of monitoring information, incident reports, and follow-up, including the provision of better online tools to help all citizens interact with this information.
5.2.2 That the government enter into formal agreements with First Nations who wish to participate, in order to deliver local First Nation energy infrastructure monitoring programs which are considered as a vital input to existing monitoring tools and systems.
8 NEB In regards to compliance, enforcement, and ongoing Partially The Discussion Paper partially addresses the comments monitoring the NEB should: Addressed through the following recommendations:
Require project proponents, and existing Formalizing the co-development of frameworks project operators, to enter into lifecycle for collaboration with Indigenous peoples on agreements with potentially impacted environmental assessments and regulatory Indigenous rights-holders covering all stages processes of the project lifecycle. These stages should Convening specific working tables with include planning/approval, construction, Indigenous peoples during assessments operation (including integrity digs) and Greater participation of Indigenous peoples on decommissioning. This will help ensure NEB assessment boards and review panels and in accommodation of Indigenous right and regulatory processes interests, with minimal burden on NEB staff Creating opportunities for Indigenous and resources. These agreements should partnerships and co-development in monitoring include, but not be limited to, the following – building on systems in Canada’s North (e.g. items: established through land claim agreements) and o Participation in cultural heritage on co-development work initiated for some and archaeological assessments projects o Participation in environmental Improving participant funding programs for monitoring Indigenous peoples and the broader public to o Participation in facility monitoring streamline applications and expand eligible (e.g. pipeline or transmission line activities monitoring) Increasing user-friendly on-line public access to o Identification and protection of project information generated during species considered to be at risk by environmental and regulatory reviews, including Indigenous rights-holders follow-up, monitoring, compliance and o Environmental, cultural heritage enforcement and socio-economic mitigation and Providing easy, on-line access so that Canadians follow-on programs can track companies’ progress as they address the o Economic benefits – procurement, conditions required to advance their project supply chain, other Engaging Canadians in a two-way dialogue on o Linear corridor restoration and environmental assessment and regulatory maintenance with native species, processes through better use of social media, and with attention to pollinator websites and other on-line platforms, as well as habitat that benefits Indigenous face-to-face and informal meetings foods (e.g. wild blueberries)
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o Reviews project infrastructure enhancements and improvements The Expert Panel report also addresses the comment that may be available to improve through the following recommendations: and provide capacity for regional infrastructure and services (e.g. oil 5.2.2 That the government enter into formal agreements pipeline pump stations require with First Nations who wish to participate, in order to transmission reinforcement and/or deliver local First Nation energy infrastructure monitoring additional regional power programs which are considered as a vital input to existing generation that can benefit rural/remote communities and monitoring tools and systems. regions; emergency management resources that can be deployed for 5.2.3 We further recommend that Regional Multi- emergencies beyond the regulated Stakeholder Committees review emergency preparedness infrastructure) plans with citizens, first responders, and other groups, to o Spill response capacity and ensure their completeness, and to recommend any gaps for resources, including training, further action to be addressed by the CETC. equipment and service contracts o Emergency response capacity and However, a major outstanding piece of this comment that resources, including training, equipment and service contracts the government must consider when carrying forward o Regulatory compliance monitoring changes with the environmental regulatory processes are Enhance public reporting and access to the specific criteria provided to serve as components of public information regarding conditions of lifecycle agreements. That specific criteria includes but is approval and overall operational compliance not limited to: through mechanisms such as: o Release of compliance reports on a o Participation in cultural heritage and regular basis (annual, quarterly archaeological assessments etc.) o Participation in environmental o Direct notification of compliance monitoring status to the intervenors from o Participation in facility monitoring (e.g. regulatory process pipeline or transmission line monitoring) o Direct notification to Indigenous o Identification and protection of species rights-holders whose Traditional considered to be at risk by Anishnaabe Territories the project intersects rights-holders o Environmental, cultural heritage and socio-economic mitigation and follow- on programs o Economic benefits – procurement, supply chain, other o Linear corridor restoration and maintenance with native species, and with attention to pollinator habitat that benefits First Nation foods (e.g. wild blueberries) o Reviews project infrastructure enhancements and improvements that may be available to improve and provide capacity for regional infrastructure and services (e.g. oil pipeline pump stations require transmission reinforcement and/or additional regional power generation that can benefit rural/remote communities and regions; emergency management resources that can be deployed for emergencies beyond the
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regulated infrastructure) o Spill response capacity and resources, including training, equipment and service contracts o Emergency response capacity and resources, including training, equipment and service contracts o Regulatory compliance monitoring
9 NEB In regards to compliance, enforcement, and ongoing Partially The Discussion Paper partially addresses these comments monitoring the NEB should: Addressed with the following:
Enhance notification of Indigenous rights- Greater transparency on reasons for holders about compliance breaches and environmental assessment and regulatory enforcement orders via the following decisions and timely feedback on how public mechanisms: input was considered o Release compliance reports on a Clearer transparency requirements for more regular basis (annual, quarterly projects (e.g. assessments of projects on federal etc.) lands, notice of proposed works on navigable o Direct notification of enforcement waters) orders and follow-up action taken Inclusive monitoring and compliance activities, by the proponent to the so that life-cycle regulators and permitting intervenors to the related project departments work closely with Indigenous NEB approvals processes peoples, communities, and landowners o During instances of enforcement Allowing for the sharing of administrative orders being issued and follow-up authority and management responsibility with actions being undertaken by a Indigenous peoples in a manner similar to other given proponent, provide direct jurisdictions (e.g. independent environmental notification to Indigenous rights- monitors) holders whose Traditional Territories or harvesting areas are The Expert Panel also makes the following intersected by the project. recommendations that address the comment and that the government needs to implement in their legislative amendments:
Annex II Legislative and Regulatory Changes to the NEB Act
ss. 48(1): should be amended to stipulate that orders issued by the regulator to repair, reconstruct, or alter part of a pipeline should be made available to the public.
ss. 49(1): should be amended to emphasize that these inspections should be carried out in a transparent manner and be made public, with the exception of proprietary information
Specific aspects of our comments that have not been addressed by the Discussion Paper nor the Expert Panel report that need to be carried forward are the release of compliance audit reports on a regular basis and providing direct notification to Anishnaabe rights-holders whose
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Traditional Territories or harvesting areas are intersected by the project in instances where compliance orders are issued.
10 NEB Currently, as has been identified in the Fall 2015 Partially The Discussion Paper partially addresses this Commissioner of the Environment and Sustainable Addressed recommendation with the following: Development Report 2 on Oversight of Federally Regulated Pipelines the NEB’s tracking of company Encouraging the development of cooperation compliance with pipeline approval conditions is agreements with interested jurisdictions inadequate. Formalizing the co-development of frameworks for collaboration with Indigenous peoples on environmental assessments and regulatory Although the Board has been taking steps to improve processes its track record and regulatory changes have occurred Convening specific working tables with such as the Pipeline Safety Act coming into force in Indigenous peoples during assessments June 19, 2016 which enacts the polluter pays principle, Greater participation of Indigenous peoples on clarifies the audit and inspection authority of the NEB, assessment boards and review panels and in and ensures companies maintain responsibility for regulatory processes their abandoned pipelines; there is more to be done to Creating opportunities for Indigenous fully modernize the practices of the National Energy partnerships and co-development in monitoring – building on systems in Canada’s North (e.g. Board in regards to lifecycle regulation of energy established through land claim agreements) and infrastructure. on co-development work initiated for some projects In regards to compliance, enforcement, and ongoing Improving participant funding programs for monitoring the NEB should: Indigenous peoples and the broader public to streamline applications and expand eligible Require operators to have lifecycle activities agreements with impacted Indigenous rights- holders whose Traditional Territories or Although the Discussion Paper comments above address harvesting areas the project intersects to our recommendation of entering lifecycle agreements with ensure their direct involvement and advance impacted communities there are key specific details that notification when activities are planned need to be considered by the government, namely: pertaining to the company’s operations and maintenance activities. Such direct Such direct involvement and notification should involvement and notification should include include but not be limited to First Nation but not be limited to Indigenous community community involvement and participation in involvement and participation in integrity integrity management programs, facilities management programs, facilities maintenance procedures, and any operations that maintenance procedures, and any operations fall outside of the usual day-to-day operations of that fall outside of the usual day-to-day the facility. This includes providing notice far operations of the facility. This includes enough in advance such that the Anishnaabe providing notice far enough in advance such rights-holders impacted have the capacity and that the Indigenous rights-holders impacted opportunity to raise any issues or considerations have the capacity and opportunity to raise of importance so appropriate accommodation any issues or considerations of importance so measures can be put in place to address these appropriate accommodation measures can concerns (e.g. cultural heritage/archaeology, be put in place to address these concerns access to harvesting, hunting and fishing areas, (e.g. cultural heritage/archaeology, access to environmental issues). Agreements should harvesting, hunting and fishing areas, include provisions and reasonable funding for environmental issues). Agreements should environmental and archaeological technical include provisions and reasonable funding expertise on par with the technical expertise
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for environmental and archaeological available to the proponent and the Board. technical expertise on par with the technical expertise available to the proponent and the Board.
11 NEB Currently, as has been identified in the Fall 2015 Partially The Discussion Paper addresses these comments with the Commissioner of the Environment and Sustainable Addressed following: Development Report 2 on Oversight of Federally Regulated Pipelines the NEB’s tracking of company Expanding the role of Indigenous peoples in the compliance with pipeline approval conditions is monitoring of pipeline and other energy infrastructure from construction to inadequate. decommissioning
Although the Board has been taking steps to improve Creating opportunities for Indigenous its track record and regulatory changes have occurred partnerships and co-development in monitoring such as the Pipeline Safety Act coming into force in – building on systems in Canada’s North (e.g. June 19, 2016 which enacts the polluter pays principle, established through land claim agreements) and clarifies the audit and inspection authority of the NEB, on co-development work initiated for some and ensures companies maintain responsibility for projects
their abandoned pipelines; there is more to be done to Early and regular engagement and participation fully modernize the practices of the National Energy based on recognition of Indigenous rights and Board in regards to lifecycle regulation of energy interests from the outset, seeking to achieve free, infrastructure. prior and informed consent through processes based on mutual respect and dialogue In regards to compliance, enforcement, and ongoing monitoring the NEB should: Formalizing the co-development of frameworks for collaboration with Indigenous peoples on Ensure proper measures are taken regarding environmental assessments and regulatory the protection of the natural environment as processes well as cultural heritage resources during any operations and maintenance activities – The following aspect of our recommendation has not been including but not limited to integrity addressed thus far and we are therefore carrying it forward management programs, facilities for the government to integrate into the regulatory maintenance procedures, and any operations amendments: that fall outside of the usual day-to-day operations of the facility. Ensure proper measures are taken regarding the Require facility operators to engage protection of the natural environment as well as Indigenous rights-holders in planning, cultural heritage resources during any operations implementing and monitoring all operations and maintenance activities – including but not and maintenance activities in their traditional limited to integrity management programs, territories facilities maintenance procedures, and any Directly consult and accommodate impacted operations that fall outside of the usual day-to- Indigenous rights-holders in the day operations of the facility. development and/ or oversight of operations and maintenance programs – including but not limited integrity management programs, facilities maintenance procedures, and environmental protection plans.
12 NEB In regards to emergency management and response Partially The Discussion Paper partially addresses these comments programs the NEB should: Addressed with the following:
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Ensure mandatory notification of hearing Strengthening the approach for Indigenous intervenors and Indigenous rights-holders peoples to build capacity for participation in whose Traditional Territories or harvesting processes and help coordinate Crown areas the project intersects, in the instance consultations of any accidental spill, release, or Expanding the role of Indigenous peoples in the malfunction including the response protocol monitoring of pipeline and other energy planned and follow-up compliance infrastructure from construction to monitoring regarding spill/ release decommissioning abatement. Creating opportunities for Indigenous Directly consulting and involving impacted partnerships and co-development in monitoring Indigenous rights-holders in the – building on systems in Canada’s North (e.g. development and/ or oversight of emergency established through land claim agreements) and management and response programs on co-development work initiated for some Enhance participation and engagement with project impacted Indigenous rights-holders through involvement in monitoring programs The Expert Panel makes the following recommendations including but not limited to environmental that addresses these comments and that the Government monitoring, archaeological monitoring, spill of Canada needs to take into consideration: and emergency response monitoring, compliance monitoring, and post-closure 5.2.1 The CETC immediately improve transparency of monitoring monitoring information, incident reports, and follow-up, including the provision of better online tools to help all
citizens interact with this information.
5.2.2 That the government enter into formal agreements with Indigenous nations who wish to participate, in order to deliver local Indigenous energy infrastructure monitoring programs which are considered as a vital input to existing monitoring tools and systems.
5.2.3 We further recommend that Regional Multi- Stakeholder Committees review emergency preparedness plans with citizens, first responders, and other groups, to ensure their completeness, and to recommend any gaps for further action to be addressed by the CETC.
5.3.1 That the CETC publish regular reports – written in plain language, not jargon, without sacrificing accuracy – on incidents and compliance actions, that will allow any interested party to know what happened, why, and what was done in response.
Annex II Legislative and Regulatory Changes to the NEB Act
ss. 48(1): should be amended to stipulate that orders issued by the regulator to repair, reconstruct, or alter part of a pipeline should be made available to the public.
National Energy Board’s Damage Prevention Regulations – Obligations of Pipeline Companies: should be amended so that company’s damage prevention programs are made public. Also, s. 2 should be
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amended so that the one-call center can be utilized by individuals interested in expressing any concerns they have related to a pipeline and that a hotline, as well as other mechanisms for contacting the CETC, is also established.
National Energy Board Onshore Pipeline Regulations: should be amended to ensure that CETC is required to conduct a results oriented inspections and verifications. Also, s. 34 of the regulation should be amended to specify that the regulator must ensure the company is taking reasonable steps to inform emergency response providers with issues related to the pipeline.
These recommendations would be adequately addressed If the Government were to implement the recommendations put forth by the Expert Panel.
13 NEB In regards to decommissioning and post-closure Partially The Discussion Paper partially addresses these comments programs the NEB should: Addressed with the following:
Enhance participation and engagement with Strengthening the approach for Indigenous impacted Indigenous rights-holders through peoples to build capacity for participation in involvement in monitoring programs processes and help coordinate Crown including but not limited to environmental consultations monitoring, archaeological monitoring, spill Expanding the role of Indigenous peoples in the and emergency response monitoring, monitoring of pipeline and other energy compliance monitoring, and post-closure infrastructure from construction to monitoring decommissioning Ensure strong enforcement of measures Creating opportunities for Indigenous outlined in the Pipeline Safety Act regarding partnerships and co-development in monitoring companies maintaining responsibility for – building on systems in Canada’s North (e.g. their abandoned pipelines and other established through land claim agreements) and abandoned facilities on co-development work initiated for some Directly consult and accommodate impacted project Indigenous rights-holders in the development and/ or oversight of Panel Report Recommendations abandoned pipelines - including but not limited to environmental monitoring and 2.2.1 The government fund an Indigenous Major Projects regular facility inspections Office, under the governance of Indigenous peoples Enhance public and Indigenous notification (determined as they see fit). Responsibilities of this Office and participation in oversight of would include but not limited to defining clear processes, decommissioning and post-closure guidelines, and accountabilities for formal Consultation by monitoring plans via commenting opportunities, implementation of advanced the government on energy transmission infrastructure, notification systems when a project is regulatory processes and assessing compliance with those nearing the end of its production lifecycle, guidelines. In addition, the Office would define and and engagement in post-closure monitoring disseminate best practices, including coordinating and/or opportunities supporting Environmental Assessments and regulatory
reviews, to help interested Indigenous rights-holders
enhance the quality of their participation in formal Consultation and engagement processes.
Annex II Legislative and Regulatory Changes to the NEB Act
ss. 48(1): should be amended to stipulate that orders issued
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by the regulator to repair, reconstruct, or alter part of a pipeline should be made available to the public.
ss. 48.49(1): should be amended to stipulate that the Commission shall evaluate the effectiveness of measures employed by the regulator to ensure that companies have the ability to pay for the abandonment of its pipelines and any costs and expenses related to its abandoned pipelines. Also, this subsection should be further amended to stipulate that these measures must be made
publicly available, and the effectiveness of these measures should be assessed periodically
The Discussion Paper and Expert Panel’s recommendations partially address our comments in this area.
The primary avenue that the comments are addressed are through the panel’s recommendation to establish a First Nations Project Management office, namely the provision to: “to defining clear processes, guidelines, and accountabilities for formal Consultation by the government on energy transmission infrastructure, regulatory processes and assessing compliance with those guidelines…(and) to help interested First Nation communities enhance the quality of their participation in formal Consultation and engagement processes.”
This recommendation speaks strongly to the desire of enhanced engagement and participation of First Nation Peoples throughout the project lifecycle. In addition. the Annex II recommendations do speak to the responsibilities of the proponent in abandonment however that recommendation is primarily focused on financial obligations and liabilities for proponents regarding abandoned pipelines
14 NEB With respect to screening, scoping, and baseline Partially The Discussion Paper partially addresses our comments evaluation criteria the NEB should: Addressed with the following recommendations:
Develop project screening and scoping Reviewing the Project List Regulations and criteria that consider the full extent of the establishing clear criteria and a transparent project – including but not limited to the process to periodically review and update the electricity requirements of the project, the Project List to ensure that major projects with the land requirements of the project, where the greatest potential impacts in federal jurisdiction project connects to or becomes part of are assessed existing or other planned energy infrastructure (i.e. connecting pipeline Projects can still be designated, or excluded, from
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segments), and any operations and assessment, under certain conditions based on maintenance (e.g. integrity digs) required for clear criteria and a transparent process existing infrastructure to be redeployed for a new project use (e.g. the integrity digs The Expert Panel recommendations address the comment required to repurpose the TransCanada with the following: Mainline natural gas pipeline to bring the pipeline to maximum operating pressure to 3.2.3 Moreover we recommend that processes and transport oil – these types of activities are authorities for export/import permits and electric called “operations and maintenance” and transmission line reviews be harmonized, to the greatest conducted under previous project approvals, extent possible, with those pertaining to pipelines, to afford but are used by proponents to keep key and relevant construction impacts out of future all review processes the same level of transparency and project approvals and environmental integrity. This recommendation should be enshrined in assessments. This is not an appropriate or legislation. accepted environmental assessment practice. In particular, this approach must be 4.4.1 CETC legislation establish Regional Multi-Stakeholder denied by the NEB when it is clear that a Committees, open to all interested parties, with a mandate coordinated set of Operations and to review all aspects of the regulatory cycle and operational Maintenance activities are occurring in a system (for example, issues like: emergent environmental manner that enables an unapproved major pipeline project proposal. risks, monitoring performance, socio-economic impacts of Eliminate the 40-km pipeline length for regulated activities, and more). triggering environmental assessments and replace with a consultative project screening 2.5.1 That the Crown retains flexibility in its processes, and scoping approach that examines the real reflecting the principle that each Indigenous nation has an impacts of a proposed project and assumes independent relationship with Canada. In addition, we that an environmental assessment will be encourage the government to do more to meet with triggered, unless it can be proven that Indigenous peoples on their own terms, and in their own impacts will be negligible and that Indigenous rights-holders consent to any places, to the greatest extent possible. project going forward without an environmental assessment. This will Annex II Legislative and Regulatory Changes eliminate project proponents “gaming” the regulatory system by piecemealing project ss. 58.11: should be amended to enable CETC to conduct pipeline lengths into segments under 40 km hearings related to powerlines. to avoid environmental assessment requirements The Discussion Paper and Panel’s recommendations Provide a consultation and accommodation partially address our comments regarding scoping, process during the project scoping stage so screening, and baseline evaluation. The recommendations that Indigenous rights-holders can review are focused on expanding the means for interested parties and comment on a draft of the project scope to participate in the regulatory process and do make to ensure that all aspects of the project important to Indigenous rights-holders can mention of conducting hearings related to powerlines. The be reasonable included in the scope of the panel does also provide recommendation regarding the project to be assessed by the NEB inclusion of transmission line infrastructure in other energy project reviews that have electrical transmission needs.
In addition, the specific recommendations regarding amending the 40-km environmental assessment trigger as well as the comments regarding the piecemealing of energy projects go fully unaddressed in the Pane’s recommendations, and must be addressed in legislation and/or regulations.
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The NEB must assess how a proposed project 15 NEB could contribute to climate change by Not The Discussion Paper loosely addresses on these comments assessing the projected greenhouse gas Addressed with the following: emissions associated with the project throughout its lifecycle. Incorporating Indigenous knowledge alongside Effects assessments conducted by the NEB as other sources of evidence: part of an Environmental and Socioeconomic o Co-develop tools, guidance, and Assessment (ESA) must adequately consider capacity with Indigenous peoples to the effects a project will have on the better support and systematically Traditional Territories of Indigenous rights- consider Indigenous knowledge; holders. Such an assessment should include o Protect the confidentiality of Indigenous but not be limited to effects on traditional knowledge where appropriate (e.g. land use and occupancy, effects on sacred site locations) commercial harvesting/ land use, effects to cultural and historically significant sites, Although the Expert Panel Report does speak to the direct and indirect effects on socioeconomic importance of Canada’s energy regulator considering and health conditions, and effects on future climate change and impacts to First Nation traditional land land uses planned by communities. use in project decision-making and planning in the body of
the report no specific recommendations, legislative amendments, or regulatory changes are proposed to address these issues of concern.
On the whole our recommendations are not sufficiently addressed in the Discussion Paper and Expert Panel report and we therefore are carrying forward these recommendations for the government to address in their legislative amendments and future steps of the environmental regulatory reviews.
16 NEB The NEB and Canada must ensure meaningful and Addressed The Discussion Paper addresses this comment with the sufficient indigenous consultation, input, and following: participation throughout the entirety of the review process and the subsequent project lifecycle. Doing so is crucial to achieving Nation-to-Nation relations with Early and regular engagement and participation based on recognition of Indigenous rights and Indigenous Peoples that the Government of Canada interests from the outset, seeking to achieve free, has consistently expressed it would like to improve and prior and informed consent through processes strengthen. based on mutual respect and dialogue Formalizing the co-development of frameworks for collaboration with Indigenous peoples on environmental assessments and regulatory processes Convening specific working tables with Indigenous peoples during assessments Greater participation of Indigenous peoples on assessment boards and review panels and in regulatory processes Clarifying roles for consultation and accommodation in regulatory processes to ensure the honour of the Crown is respected
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17 NEB The NEB must follow established principles and best Partially The Discussion Paper somewhat addresses this comment practices regarding the Duty to Consult and Addressed with the following: Accommodate Indigenous Peoples by enacting the principles articulated in the United Nations Declaration Early and regular engagement and participation on the Rights of Indigenous Peoples (UNDRIP) including based on recognition of Indigenous rights and interests from the outset, seeking to achieve free, mechanisms that demonstrate a commitment to Free, prior and informed consent through processes Prior, and Informed Consent (FPIC) based on mutual respect and dialogue
The Expert Panel report does state UNDRIP and FPIC principles and their importance in the body of the Panel report as being key considerations for a nation-to-nation relationship these principles go wholly unmentioned in the actual recommendations put forth by the Panel as well as considerations put forth in the discussion paper.
18 NEB The NEB and the Crown should directly engage with Addressed The Discussion Paper addressed this comment with the Indigenous People regarding the development of following: Consultation Plans for projects before the project description has been filed; in pre-project planning Early and regular engagement and participation stages based on recognition of Indigenous rights and interests from the outset, seeking to achieve free, prior and informed consent through processes based on mutual respect and dialogue Formalizing the co-development of frameworks for collaboration with Indigenous peoples on environmental assessments and regulatory processes Convening specific working tables with Indigenous peoples during assessments Greater participation of Indigenous peoples on assessment boards and review panels and in regulatory processes Clarifying roles for consultation and accommodation in regulatory processes to ensure the honour of the Crown is respected
19 NEB Currently, the NEB’s Participant Funding Program Addressed The Discussion Paper addresses this with the following: provides a limited amount of funds to Indigenous rights-holders. According to the Participant Funding Improving participant funding programs for discussion paper, a maximum of $80,000 is awarded to Indigenous peoples and the broader public to streamline applications and expand eligible groups per hearing however it has been our experience activities that in projects where funding is in high demand, participants received half that amount (i.e. $40,000 was the maximum funded per group for the Energy East hearing process). The funding program in its current form does not necessarily reflect nor meet the needs of Indigenous Peoples to be adequately
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resourced to participate in decision-making processes that can have major implications on Indigenous land and resource use and overall way-of-life.
The current approach to awarding Indigenous organizations with greater funding than entities that have the authority to represent rights-bearing Indigenous rights-holders is inappropriate. The duty to consult and accommodate is to be applied to rights- bearing Indigenous rights-holders, and these communities should have special status, over and above non-rights bearing entities unless those entities have specific agreements in place to represent the rights-bearing entities.
20 NEB Presently the following components are required as Partially The Discussion Paper mostly addresses these comments part of a management system for a project: Addressed with the following:
Emergency Management Program Integrity Management Program Working with Indigenous peoples to build Safety Management Program capacity and enable their participation in Security Management Program assessments Environmental Protection Program Increase economic participation of Indigenous communities and businesses In their current form these management programs Consideration and protection of Indigenous have limited requirements to notify affected knowledge, alongside science and other evidence Indigenous nations of any incidents or activities that Collaboration on regional-scale studies will be undertaken. Creating opportunities for Indigenous partnerships and co-development in monitoring – building on systems in Canada’s North (e.g. The NEB should ensure that the requirements of these established through land claim agreements) and programs be amended to require notification of on co-development work initiated for some Indigenous nations about: projects
Opportunities to participate as monitors in The Expert Panel has also made substantive these programs, including conditions recommendations that address this comment and that the pertaining to adequate training, contracting, Government of Canada ought to consider moving forward: and procurement opportunities Adequate whistleblower protections and 2.4.1 The CETC and the Minister of Natural Resources accountability mechanisms for reporting should move to produce guidelines for early engagement, instances of non-compliance Adequate integration of Indigenous that allow industry and Indigenous peoples to communicate knowledge, land use, and occupancy based more freely and without prejudice to outstanding claims of on guidance provided by the Indigenous right, or subsequent project reviews. This would include rights-holders that have the project located pre-filing information sessions, town halls with proponents within their Traditional Territory under the oversight of the regulator, and more.
Adequate follow-up conducted by the NEB to ensure Expert Panel Note: Our vision here is one of productive the conditions mandated pertaining a company’s relationships between actual people engaging in meaningful management system are upheld dialogue. We recognize that any sort of statutory change or official guideline can only do so much to achieve this type of outcome, and that in many respects this recommendation
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depends upon that character, willingness, and commitment of all of the parties to create better relationships. The US Federal Energy Regulatory Commission has developed extensive pre-filing engagement best practices which could be looked to as a model.
4.4.1 CETC legislation establish Regional Multi-Stakeholder Committees, open to all interested parties, with a mandate to review all aspects of the regulatory cycle and operational system (for example, issues like: emergent environmental risks, monitoring performance, socio-economic impacts of regulated activities, and more).
Expert Panel Notes: We have recommended that these Committees be established at the regional level for two reasons. First, to permit Committees to have time sufficient to discuss the issues in question; we feel that a national table of this nature would be simply too big to manage effectively while still allowing all parties to have a say. Second, we heard a clear expression of interest in having more information about regulated activities at a regional, if not local, level. Different communities are affected by energy transmission in different ways, and have concerns unique to them that require attention.
5.1.1 That the CETC regulate and clearly communicate its standards and approach to ensuring compliance with standards and expectations for management systems, and water protection specifically, in a way that can be understood by non-specialists, and that it should engage its (proposed by us) Regional Multi-Stakeholder Committees to identify specific elements for review and revision, as appropriate.
5.1.2 We further recommend that the CETC explain in plain language how rules for liability work, how the relative monetary amounts are calculated, and consider a public review of the surety bond amount to ensure that it adequately addresses risk as intended.
5.2.1 The CETC immediately improve transparency of monitoring information, incident reports, and follow-up, including the provision of better online tools to help all citizens interact with this information.
5.2.2 That the government enter into formal agreements with Indigenous nations who wish to participate, in order to deliver local Indigenous energy infrastructure monitoring programs which are considered as a vital input to existing
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monitoring tools and systems.
5.2.3 We further recommend that Regional Multi- Stakeholder Committees review emergency preparedness plans with citizens, first responders, and other groups, to ensure their completeness, and to recommend any gaps for further action to be addressed by the CETC.
A key component remaining unaddressed by both the Discussion Paper and Expert Panel report is instituting mechanisms for adequate whistleblower protections and accountability mechanisms being put in place and we therefore are carrying this comment forward for the government to address.
21 NEB In the proposed changes being set forth in the NEB Partially This comment is addressed by the following Discussion filing guide, the following is said regarding the Addressed Paper recommendations: inclusion of Indigenous Knowledge: Incorporating Indigenous knowledge alongside “Local and Indigenous knowledge other sources of evidence: o Co-develop tools, guidance, and Consider augmenting the application with capacity with Indigenous peoples to local and Indigenous knowledge and better support and systematically integrating the information and knowledge, consider Indigenous knowledge; o Protect the confidentiality of Indigenous where appropriate, into the design of the knowledge where appropriate (e.g. project. Where local and Indigenous sacred site locations) knowledge is obtained, provide an opportunity for the individual who provided Consideration and protection of Indigenous the information to confirm the interpretation knowledge, alongside science and other evidence of the information and how it was used in the project design.” The outstanding aspects of this comment is amending the Merely “considering” the integration of Traditional manual from “consider” with the phrase “The application Indigenous Knowledge is not an adequate means to MUST include or demonstrate reasonable effort to include appropriately evaluating the effect a project will have local and First Nation traditional knowledge.” on Indigenous rights and interests and ensure the Duty to Consult is upheld.
The NEB should replace the word “consider” with the phrase “The application MUST include or demonstrate reasonable effort to include local and Indigenous knowledge.”
Furthermore, Indigenous knowledge is collective knowledge and the verification of appropriate interpretation should be conducted at the community level while including the individual in such verification.
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22 NEB Presently there is limited guidance provided on Not This comment is wholly unaddressed in both the Discussion vegetation management in transmission line and Addressed Paper and the Expert Panel Report and we are therefore pipeline right-of-ways (ROWs). There is still frequent requiring the Government of Canada to integrate use of pesticides to manage vegetation despite its vegetation management in transmission line and pipeline environmental and biodiversity impacts. There are also ROWs into its legislative and/or regulatory amendments of limited allowances for and encouragement of Canada’s environmental laws and regulations. alternative prescriptions and maintenance practices that maintain wildlife habitat, biodiversity, and water quality protection values. Therefore, we recommend:
The NEB retain experts to develop Operations and Maintenance guidance and best practices that address these issues. Operations and Maintenance guidance policies and/ or manuals be updated to mandate the elimination of pesticide use where possible and application of an Integrated Pest Management (IPM) approach in other circumstances, with an emphasis on protecting water quality and maintaining biodiversity. Operations and Maintenance guidance policies and/ or manuals be updated to mandate that project ROWs provide habitat value for wildlife in the project area Operations and Maintenance guidance policies and/ or manuals be updated to mandate that project ROWs implement the planting of pollinator friendly species and native plant species as a method vegetation management that supports a thriving ecosystem within a project’s footprint.
The NEB can play an important role in supporting and enhancing pollinator habitat along linear corridors. Many of the plants important to Indigenous people across Canada require healthy pollinator populations – like blueberries for example – but those pollinator populations are threatened and in decline. The NEB should develop pollinator planting requirements for linear corridors in consultation with Indigenous people.
The Discussion Paper somewhat addresses criteria 2.1: 23 NEB In August 2012 the NEB repealed order XG/XO-100- Not “Directly affected persons or those persons with relevant 2005 and replaced it with XG/XO-100-2012 including Addressed information or expertise (e.g., might include Aboriginal the implementation of a Schedule A flowchart to groups; directly affected landowners; shippers; federal, determine the criteria that would enable a project to provincial, municipal agencies) have been consulted on the project and all issues and concerns have been resolved.” qualify for a Section 58 exception under the NEB Act. With the following recommendation: Step 2 of the Schedule A flow chart provides the following rules/ criteria that if the answer is no the Eliminating the “standing” test previously used by the National Energy Board for those wishing to
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exception does not apply: participate in assessments
2.1 Directly affected persons or those With the exception of the above, the Discussion Paper and persons with relevant information or Expert Panel report do not sufficiently address our expertise (e.g., might include Aboriginal comments and we are therefore carrying this comment groups; directly affected landowners; forward for the Government of Canada to address and shippers; federal, provincial, municipal incorporate into the next steps of the environmental agencies) have been consulted on the project regulatory reviews. and all issues and concerns have been resolved. 2.2 The project will be located entirely on the existing right-of-way or other property on which the facility is located, including company-owned land, easement, leased or licensed land. 2.3 The project will not be located on federal lands. 2.4 The project will not be located within a provincially- or federally-designated environmentally sensitive area. 2.5 The project will not be located in a wildlife area or migratory bird sanctuary (see the Canadian Environmental Assessment Act, 2012 Regulations Designating Physical Activities for definitions). 2.6 The project will not impact a water body or wetland. 2.7 The project will not impact Schedule 1 Species at Risk Act species (plant and/or wildlife) or habitat. 2.8 The project will not involve an increase in airborne emissions or noise during operations. 2.9 The project will not involve chemical or contaminant liquid or solid discharges during operations.
However, no evaluation criteria have been provided to ensure the above requirements have been met. Therefore, it is recommended that the Board develop, implement, and publicly share its assessment criteria. In the case of item 2.1 the development of evaluation criteria must involve participation and feedback from Indigenous rights-holders as they are directly impacted by the outcomes developed.
24 NEB Currently project information from NEB-regulated Partially The Discussion Paper partially addresses these concerns projects is available through an on-line repository Addressed with the following comments regarding accessibility of called REGDOCS. This on-line system is meant to be a information: tool to keep proponents, the board, members of the Canadian public, and Indigenous Peoples informed on Increasing user-friendly on-line public access to
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projects being reviewed and/ or regulated by the NEB. project information generated during However, this system in its current form is not user- environmental and regulatory reviews, including friendly, is very difficult to navigate, and creates a follow-up, monitoring, compliance and enforcement significant barrier for people to remain informed. We acknowledge that the system does hold a high volume Providing easy, on-line access so that Canadians of data however there are a number of improvements can track companies’ progress as they address the that if implemented would enable REGDOCS to better conditions required to advance their project serve all interested parties. The Expert Panel report makes the following Specifically, it is recommended that: recommendations that somewhat address these comments:
All project applications follow a consistent Panel Report Recommendations: filing structure on the REGDOS registry A simplified file naming convention is created 4.5.1 The CETC should continue to reform its online to promote clarity, plain language, and user- presence, driven by the priorities of its users, not the friendliness regulator. We further recommend the creation of a visible A function is created in the registry that and accessible online public outreach office charged with allows letters of comment for facilities in engaging citizens and helping them to navigate the many operation to be filed processes and documents that can represent a barrier for Drastically improving the search function within the participation in the regulatory system. registry to ensure information can be found quickly and efficiently by laypeople. Annex II Legislative and Regulatory Changes to the National Energy Board Act
ss. 32(2) should be amended to ensure that the map and application are
adequately communicated to the public, which should include modern means of communication
Our comments regarding access to information are partially addressed in that the Discussion Paper and Expert Panel report acknowledges in their recommendations the need for greater visibility and accessibility of information and provides recommendations around the functions of a public outreach and engagement office. However, the specific measures regarding necessary improvements to the REGDOCS registry go largely unaddressed by the Discussion Paper and Expert Panel’s recommendations.
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4.3 FISHERIES ACT
Section Comment/Gap/Issue Adequacy of Recommendation Discussion Paper
1 FA Reintroduce previous protections into Section 35(1) by Addressed The Crown has said that they are committed to bringing the prohibition against harmful alteration, prohibiting HADD unless authorization is given disruption, or destruction (HADD) of fish habitat, but through Ministerial approval. keeping the expansion of the prohibition that was introduced to include Commercial, Recreational, and Aboriginal (CRA) fisheries.
2 FA Under Section 35(1) of the Fisheries Act, undertakings or Partially The intent of this comment is to ensure protection activities that result in serious harm to “fish that are part Addressed for all fish. The Crown has indicated a commitment of a commercial, recreational or aboriginal fishery, or to to prohibiting HADD unless authorization is given fish that support such a fishery.” This section does not through Ministerial approval. While it is possible that clarify what is meant by “fish that support such a this will include all fish and fish habitat, it is unclear fishery” and therefore there is a significant degree of from the language in the Discussion Paper if this is ministerial discretion regarding when it would apply. indeed the case.
The definition of CRA fisheries and “fish that support We recommend that the reintroduction of such a fishery” should be expanded so that all fish are prohibition against HADD be worded clearly so that afforded protection including species that: is covers all fish habitats. This would be in concordance with recommendation 6 and 11 from Ecologically support CRA fisheries such as the Standing Committee Report (SCOFO, 2017). forage fish that are prey species or which play Those recommendation being: an important role in the transfer of energy through trophic interactions; Recommendation 6 - That protection from harmful Economically support CRA fisheries such as alteration or disruption, or the destruction, of fish baitfish; and Have cultural significance for Indigenous habitat be extended to all ocean and natural peoples freshwater habitats to ensure healthy biodiversity.
Recommendation 11-That the Fisheries Act should include a clear definition of what constitutes fish habitat.
3 FA The definition of “aboriginal fishery” in the Fisheries Act Not Anishnaabe rights-holders across Canada have includes fish harvested for “the purpose of using the fish addressed diverse relationships with fish and fisheries. As as food, for social or ceremonial purposes or for stewards of the land, First Nation peoples have purposes set out in a land claims agreement entered interests beyond simply harvesting fish for food, into with the Aboriginal organization”. What is not social and ceremonial purposes.
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included here are: The Crown has not provided any indication of whether it will consider expanding the definition of • Fisheries with economic components; Aboriginal fisheries under the Act. • Legally operating unlicensed commercial fisheries (e.g. Marshall fisheries on the Atlantic coast); We recommend that the definition be expanded to • Fisheries protected under historical treaties or include: traditional fisheries that are not currently being actively exercised. • Fisheries with economic components; • Legally operating unlicensed commercial It is important for all these fisheries to be captured fisheries (e.g. Marshall fisheries on the Atlantic within the definitions in the Act to ensure ‘serious harm” coast); to those fisheries is prohibited consistent with Section • Fisheries protected under historical treaties or 35 of the Fisheries Act. traditional fisheries that are not currently being actively exercised. Beyond issues of fisheries protection, the definition of Aboriginal fisheries should be expanded in recognition of the diverse fisheries that Indigenous peoples engage in across Canada.
4 FA The Act provides the Minister with very broad powers Not The discussion paper has not addressed the concerns regarding approval of activities that would cause serious addressed that have been raised regarding the broad powers of harm to fish. For example, Section 35 (2) (b) states; the Minister and the current inability of Anishnaabe rights-holders to provide comments on Ministerial “A person may carry on a work, undertaking or activity if decisions and ensure adequate oversight. authorized by the Minister and the work, undertaking or activity is carried on in accordance with the conditions The Crown must propose concrete steps to ensure established by the Minister;” that meaningful action will be taken to protect the rights of Anishnaabe rights-holders. Specifically this From this language in the Act, it is unclear how the includes: Minister will: A mechanism whereby Anishnaabe rights- consider Indigenous rights and interests when holders can comment on a screening decisions granting authorizations under section 35 (2). by the Minister about whether a project is likely Protect fish that are not being fished for to impact First Nation, commercial, reasons of conservation or stock recovery Protect Indigenous fisheries if it does not recreational, scientific or other important meet the definition of “aboriginal” fisheries. “commercial” or “recreational”. A mechanism that allows Anishnaabe rights- holders to comment on whether proposed To ensure adequate oversight we recommend works should be subject to the Act. constraints on Cabinet and the Ministers of Environment A transparent process for decision making and and Fisheries and Oceans’ broad powers. This should communication when the Minister authorizes include a process whereby Indigenous rights-holders can an exemption to Serious Harm or HADD under comment on screening decisions by the Minister about Section 35 (2). whether a project is likely to impact important Indigenous fisheries. Furthermore, such a mechanism This recommendation is a reflection of what was should provide the Minister the power to require that proposed by the Standing Committee on Fisheries proposed works be subject to the Act based on and Oceans (SCOFO, 2017). comments provided by Indigenous peoples.
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Recommendation 28
That the exercise of ministerial discretion be subject to transparency principles and public disclosure.
5 FA The current processes for fisheries management and Partially The crown is considering implementing changes that authorizations under the Fisheries Act do not provide addressed would: adequate opportunities for the participation of Indigenous peoples. This issue carries throughout the i) “Enhance participation of Indigenous peoples in planning process from beginning to end. As a result, the conservation and protection of fish and fish habitats.”; decisions are often made without meaningful ii) “Ensure meaningful and ongoing engagement engagement and without incorporating Indigenous and participation in planning and integrated Knowledge. Then for projects or activities that have management” been implemented, there is often poor representation of iii) “Incorporate Indigenous knowledge into decision Indigenous peoples in monitoring activities. making”; and iv) “Identifying ways in which Indigenous peoples There is a need for a specific policy to be drafted by DFO could be involved in monitoring, enforcement to improve the participation of Indigenous people in and decision-making activities on their traditional lands” planning, decision making, management, conservation, monitoring and enforcement of fisheries. This policy If the Crown follows through on these commitments must be drafted with meaningful inclusion of Indigenous in a meaningful way then it would likely result in knowledge and in cooperation with Indigenous peoples. many positive changes from better participation to more effective fisheries management.
Unfortunately, the commitments that have been made are vague, non-specific and lack any enforcement mechanisms. As a result, it is unclear at the current time whether any meaningful improvement will be achieved.
We propose that the Crown commit to drafting and implementing a policy with the goal of achieving the changes they are considering above for improving the participation of First Nation peoples in fisheries management. Then it is necessary to allow an opportunity to review the specific legislation and policy changes that have been proposed.
These changes are reinforced by recommendation 15 of the Standing Committee (SCOFO, 2017).
Recommendation 15
That Fisheries and Oceans Canada should create a widely representative advisory committee to
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provide ongoing recommendation regarding the administration and enforcement of the Fisheries Act. The advisory committee should include but not be limited to, industry groups, project proponents, agricultural groups, municipal government representatives and commercial, recreational and First Nation fisheries representatives
6 FA Amendments to Section 29 of the Act restructure an Not There is no mention in the Discussion Paper of any existing prohibition against placing obstructions in rivers. addressed actions or intentions of the Crown to protect It is unclear how these amendments will affect DFO’s traditional practices or scientific pursuits of First ability to authorize or permit the use of some weirs and Nation peoples. These practices are critical for the seines for monitoring purposes and the impact on First preservation of culture and the further collection of Nations that use these methods as preferred means to knowledge. exercise their fisheries rights. The Crown must clarify and ensure that Section 29 of In addition, the previous prohibition was listed in the Act includes provisions that would allow reference to the obstruction of a main channel. The authorization for First Nations to use seines and prohibition is now placed in reference to obstruction of weirs for fishing as well as to count and monitor fish fish or waters, suggesting its intent is the prohibition on stocks. the act of harvesting fish instead of ensuring navigation. The Crown must commit to the protection of A mechanism is needed in the Act for Indigenous rights- traditional practices employed by First Nation holders to comment to the Minister about whether peoples for traditional and scientific purposes. authorization may be granted for First Nations to use seines and weirs for fishing purposes as well as to count and monitor fish stocks, provided suitable notices and measures are put in place to ensure safe navigation.
7 FA The prior version of the Fisheries Act contained a "no net Not The reinstitution of the “No Net Loss” and “Net loss" of fish habitat policy, with an overall goal of a "net addressed Gain” policies within DFO was recommended by gain" of fish habitat through restoration of lost habitat. A several organizations and the Standing Committee “no net loss” and "net gain" policy protects critical Report (Recommendation 32, SCOFO, 2017). This habitat that cannot be replicated and supports recommendation has not been carried through by restoration of lost habitat. the Crown in its discussion paper.
Due to lack of monitoring and enforcement, it is unclear This is a key policy piece which holds projects how successful activities aimed at creating no net loss/ accountable to a high standard of environmental net gain have been. In addition to reinstating this policy protection that should be upheld in Canada. It a provision should be included for ensuring that ensures that fisheries productivity is maintained in effectiveness monitoring is in in place and net gains are the face of development by requiring that habitat realized. offsets result in a net gain of fish habitat.
The concept of no net loss should be restored through The No Net Loss and Net Gain policy is very much in policy or amendment to the statute or regulation. line with many traditional First Nation values and Reinstate the No Net Loss and Net Gain principle as the practices that have helped ensure the integrity of primary goal of fish and fish habitat conservation and the environment is maintained since time protection with consultation and contribution from First immemorial. This policy also draws on the modern
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Nations communities. scientific concept of the precautionary principle, which accounts for uncertainty associated with Where there are potential impacts to First Nation assumptions and predictions for the creation of new communities they should be included in decisions fish habitat. related to mitigation, offsetting, and monitoring. This would allow them to be involved in decisions regarding We recommend that the Crown draw on First Nation target species and habitat types that should be traditional knowledge and modern best practices by protected, rehabilitated and created. Moreover, by reinstating the “No Net Loss” and “Net Gain” DFO requiring monitoring, those responsible for projects policies. This recommendation was also put forth by which require offsetting are more likely to be held the Standing Committee (SCOFO, 2017) accountable when net-gains are not realized. Recommendation 32 Furthermore, such monitoring has long-term benefits for the effectiveness of fish habitat compensation efforts in That Fisheries and Oceans Canada renew its general, much the way that follow-up programs in commitment to the “No Net Loss” and “Net Gain” federal environmental assessments are intended to policies with a renewed focus, effort and resources further long-term learning and adaptation of practices. on restoration and enhancement of fish habitat and fish productivity and that the Department allow project proponents flexibility to fulfill this requirement
Current regulation does not allow for enforcement or 8 FA rejection of activity based on cumulative impacts Partially The Discussion paper has stated that the Crown decision making. Approvals for work being done in an addressed would consider changes that “Incorporate modern area should consider a watershed approach and resource management and planning principles such determine at what point multiple authorizations for as cumulative effects, the precautionary approach, development cause harm to fish populations. and ecosystem-based management”. Moreover, to To understand the cumulative effects of impacts on fish gain a better understanding of cumulative effects habitat, DFO should be required to complete a they are considering engaging in strategic and cumulative effects assessment where authorizations regional assessments. These changes and initiatives under the Fisheries Act are given. To assist with the would be a welcome addition to fisheries understanding of cumulative impacts, and confirm the management and planning however, it is unclear accuracy of impacts and effectiveness of mitigation and how the Crown intends to implement these. The compensation measures, the Fisheries Act should Crown must propose mechanisms for implementing require follow-up monitoring of fish habitat for all the above recommendations. Specifically: authorizations and allow for delegation of monitoring DFO must consider the cumulative impacts of and enforcement powers to Indigenous community all works, undertakings and activities with the groups. potential to harm fish habitat when issuing To ensure that the impacts and cumulative effects of authorizations; works, undertakings and activities are understood, the Fisheries Act should require follow-up avoided, offset and/or mitigated, Environmental monitoring of fish habitat for all authorizations; Assessment legislation should include triggers for an EA and when authorization is required under the Act. the fisheries Act should allow for delegation of monitoring and enforcement powers to Indigenous community groups.
These recommendations are partially reflected in recommendation 27 from the Standing Committee
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Report (SCOFO, 2017)
Recommendation 27
That Fisheries and Oceans Canada continue to fund fisheries conservation and enhancement projects in co-operation with the Anishnaabe rights-holders, the agricultural communities, and fisheries conservation organizations
9 FA On December 16, 2013, DFO signed a Memorandum of Not The Crown has not specifically mentioned the MOU Understanding (MOU) with the National Energy Board addressed between DFO and the NEB which delegates some (NEB), which makes the NEB responsible for the assessment of impacts to fish habitat to the NEB. assessment of impacts to fish from energy projects such as pipelines and transmission lines. The NEB is now As the Department with the mandate to protect responsible for determining if there is impacts to fish Canada’s fisheries and support sustainable aquatic and whether an authorization is required under the ecosystems, jurisdiction for assessing impacts to fish Fisheries Act and the Species at Risk Act. If they and fish habitat from energy projects should be determine that impacts of a project require restored to DFO. authorization or a permit, then DFO is contacted and
becomes responsible for issuing these.
There are several problems associated with this change but the two most important are: 1) the NEB has no mandate for protection of fish or aquatic habitats, and; 2) they lack the key capacity, experience and expertise to be able to competently assess them.
Under the MOU, effects on Indigenous treaty rights or interests related to the fisheries act that used to be handled by DFO, are now be dealt with by the NEB, an organization with a poor history of consultation with First Nations people. Beyond the direct impacts of poor consultation, this change serves to undermine trust in decisions made by government.
10 FA The proponent self-assessment for serious harm to fish Not The issue with proponent led self-assessment of or fish habitat is a clear conflict of interest. It relies on Addressed impacts to fish habitat was not dealt with in the unbiased reporting of impacts by organizations that Discussion Paper. It is unclear why this is the case as often have a vested interest in minimizing their self- it was clearly identified by many individuals and described impacts. Moreover, the capacity, experience organizations. Moreover, the Standing Committee and expertise of individuals completing the self- recommended reduced reliance on Proponent self- assessments is not transparent. Therefore, it is unclear assessment for the reasons we have described whether they are sufficiently skilled to complete the self- (SCOFO, 2017). assessment. Recommendation 18 To prevent issues associated with biased or unskilled assessments, the determination for serious harm (or That any changes to habitat protection in the Fisheries Act must be supported by a reduced
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HADD) should be led by DFO. reliance on project proponent self-assessment.
As the Department with the mandate to protect Canada’s fisheries and support sustainable aquatic ecosystems, jurisdiction for assessing impacts to fish and fish habitat from energy projects should be restored to DFO.
4.4 NAVIGATION PROTECTION ACT
Adequacy of Recommendation Section Comment/Gap/Issue Discussion Paper
1 NPA A mechanism is needed in the Act for Indigenous rights- Partially The discussion paper alludes to identifying ways in holders to comment on a screening decision by the addressed which First Nation peoples could be involved in Minister about whether a project is likely to affect monitoring, enforcement and decision-making navigability in waters not listed in the schedule under activities on their traditional lands, but does not make the Act. Such a mechanism should provide the Minister specific mention on the mechanisms for Anishnaabe the power to require that proposed works be subject to rights-holders to comment on the screening decision the Act on the basis of comments provided by by the Minister. indigenous people. Additionally, in cases where indigenous jurisdictional authorities are better suited In addition to the commitments outlined in the than the Minister to make an assessment of a project’s discussion paper, the Minister must be granted the potential to affect navigation, collaboration agreements power to require that proposed works be subject to the Act on the basis of First Nation community or substitution should be used to grant those groups comments. A statutory 45-day comment period must authorities with the decision making role. be provided during which Anishnaabe rights-holders may provide comment on whether the proposed
works may impact them.
2 NPA In prescribing the scope of the factors the Minister is to Partially The discussion paper does partially address the issue consider in assessing a proposal for works in a navigable addressed of identifying waterways within traditional territories water and whether they may substantially interfere by stating that early and regular engagement and with navigability, there is no mention of the participation with Anishnaabe rights-holders in NPA
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consideration of current Indigenous group uses of the processes, including a tailored process for adding navigable water for traditional or other socio-economic waterways in their traditional territory to the and cultural purposes that require and are contingent Schedule. However there needs to be stronger on navigability. clarification on how Anishnaabe rights-holders will be consulted and how their involvement will be used to Furthermore, there is no consideration of whether the identify important waterways. location of the proposed works occur within or surrounded by lands under the jurisdiction of It is important that current indigenous uses of Indigenous peoples, including communities or navigable waters for traditional or other socio- harvesting areas. We believe that consideration of economic and cultural purposes that require and are proximity to communities, harvesting areas, and contingent on navigability are taken into consideration traditional territories is crucial since that proximity when assessing proposed works in navigable waters. generally equates to a higher potential for substantial The proximity of proposed works in navigable waters effects on the navigability of waters. to communities, traditional territory, and harvesting areas are taken into consideration when assessing proposed works in navigable waters.
3 NPA The schedule of navigable waters in the current version Addressed The discussion paper states that there is a need to of the Act is woefully inadequate in protecting the improve the process for adding navigable waters to navigability of many waters which are currently used by the Schedule, including developing clear criteria and a Indigenous rights-holders for traditional purposes such more accessible and transparent process. This will be as trapping, hunting, fishing, and gathering, and other done through working with First Nation peoples to socio-economic and cultural uses. It is critical that obtain and incorporate First Nation traditional additional waterbodies be added to this schedule, or knowledge in decision making, alongside other the schedule be removed and a principle-based sources of evidence. The discussion paper also definition of navigability be used in the Act to ensure advocates for facilitating early and regular that the exercise of such uses and their related rights engagement and participation in NPA processes, are protected by the Crown. including a tailored process for adding waterways in their traditional territory to the Schedule
4 NPA If the Crown chooses to maintain a schedule of Addressed The discussion paper outlines the need to clarify the navigable waters in the Navigation Protection Act, the criteria used for the aqueous highway test in threshold for inclusion in the schedule must be based determining whether a water is navigable. In addition, on the potential for small motorized or unmotorized it advocates for regulating obstructions and certain craft to navigate a waterway, regardless of the current classes of works (such as dams and ferry cables) on all intensity of use, navigable waters in Canada.
Any Crown decision on such a schedule must, of course, include meaningful and properly resourced aboriginal consultation and appropriate accommodation.
5 NPA Interprovincial and international pipelines are not Not It is recommended that ALL pipelines be subject to the currently subject to the Navigation Protection Act, only Addressed Navigation Protection Act and require approval from to the National Energy Board Act. Pipelines buried the Minister. Consultation with Anishnaabe rights- under the bed of a navigable water and pipelines holders must be required for the assessment of any
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attached to existing works also do not require approval pipelines located within our traditional territories. under the Navigation Protection Act since they are designated or minor works. This omission is a serious concern, since all types of pipelines can have serious implications for the health of waterways and the ability to use them for navigation purposes.
The discussion paper fails to address the issue of the 6 NPA It is not appropriate for the Minister to have the power Partially Minister having the power to downgrade the status of to unilaterally downgrade the status of waters defined addressed waters. The downgrading of a navigable water must as navigable in the Act to “minor waters” as is currently be subject to a GIC decision. Consultation of provided for in Section 28(2). The Minister does not potentially affected Anishnaabe rights-holders must have a sufficient understanding of uses of all waters to be mandatory prior to a GIC decision on the make such decisions without input from the people who downgrading of navigable water. use the waters. There must be a meaningful In addition, the consultation of potentially affected consultation process with our community or with Anishnaabe rights-holders must be mandatory prior to affected Indigenous rights-holders for any such change. decision making regarding whether a project will It must also be subject to a Governor-in-Council (GIC) interfere with navigability. decision that such a change is in the public interest and consistent with the principles and process of reconciliation with Indigenous rights-holders in Canada. By moving this decision to the GIC it would bring consistency in the application of the legislation between the downgrading of a navigable water, and the addition of a navigable water to the schedule of such waters under the Act (Section 29(2)).
Additionally, the Minister must not be given the power to unilaterally decide that projects will not interfere with navigability. Public consultation must be mandatory, including consultation with First Nation’s communities whose traditional territories overlap with the area where the proposed project is to take place.
7 NPA In determining whether a waterway should be added to Partially The discussion paper does advocate for the identifying the schedule of navigable waters under Section 29(2) of addressed ways in which First Nation peoples could be involved the Act, there is no requirement that the GIC consider in monitoring, enforcement and decision-making current use of such waters by Indigenous peoples for activities on our traditional lands. However, it is traditional purposes or other socio-economic or cultural important that the use of waterways by First Nation purposes. peoples for traditional purposes or other socio- economic or cultural purposes is clearly listed as a criterion for the GIC to consider when determining whether a water should be added to the schedule of navigable waters.
8 NPA Prior to 2012 amendments, environmental protection Not Under the Restoring Lost Protections to the Navigation played a larger role in the Act. Any interference with addressed Protection Act section of the discussion paper, the navigation was treated as a “trigger” for consideration triggering of Environmental assessments was not
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of environmental impacts, and in some cases for a full addressed. It is recommended that environmental environmental assessment. There also used to be more sustainability must be clearly stated as a goal of the of a focus on protecting navigable waters, as opposed to Navigation Protection Act. simply protecting navigation. This change is short- Anishnaabe rights-holders and organizations must be sighted since we must protect navigable waters if we engaged in developing the wording around are to protect navigation in the long-term. In order to “environmental sustainability” as an objective of the sustain the use of navigable waterways, environmental Act along with accompanying changes to the Act to impacts must be considered under the Act and better protect the environment. environmental sustainability must be a clearly stated objective of the Act.
A cumulative effects assessment must be integrated 9 NPA A serious shortcoming in the Act’s consideration both of Not into the process for assessing a proposed project’s the environment and of sustaining the use is the addressed potential impacts on navigation and navigable waters. absence of cumulative effects assessment. While the Anishnaabe rights-holders and organizations must be Act only focuses on proposed works on an individual engaged in developing a process for assessing basis, waterways can be compromised in terms of their cumulative effects on navigable waters and health and their utility for navigation by a combination navigation. of projects, activities and other factors. The exclusion of most Canadian waterways from the Schedule of waters is another serious shortcoming with respect to environmental protection and long-term sustainability of navigation.
The Navigation Protection Act does very little to protect 10 NPA and sustain Indigenous rights related to navigable Partially The discussion paper does state the need to work with waters. Rights should not only be acknowledged by this addressed First Nation peoples to obtain and incorporate First Act, but also carefully considered and promoted. Nation traditional knowledge in decision making, Canada has a fiduciary duty to consult and if necessary alongside other sources of evidence, but does little to accommodate Indigenous peoples if there is the comment on the rights and interest of First Nation potential to infringe Section 35 constitutional rights. The Supreme Court has made it clear that we must be people. The Act needs the protection and promotion engaged with when decisions are being made about of First Nation rights and interests as they relate to lands and resources. navigation and navigable waters are clearly defined as key objectives of the Navigation Protection Act. The Navigation Protection Program’s “A Guide to the Navigation Protection Program’s Notification, Free, prior and informed consent of First Nation Application and Review Requirements” states that the peoples is required for all projects and legislation that federal government will notify proponents if Indigenous have the potential to impact waterways within our consultation is required. However, that would only traditional territories. The Minister must consider apply to non-designated or major works projects that opportunities for a collaboration agreement with or are to occur within scheduled waters, or projects for full substitution by Anishnaabe jurisdictional which the proponent has opted in to the Navigation authorities and consider the governing laws of the Protection Act regime. Therefore, there may be many lands by the Anishnaabe whose rights, interests and lands will be impacted. cases where projects are likely to interfere with navigation in ways that infringe on Indigenous rights In addition, the Minister must reach out directly to any and interests, but where consultation will not take place Anishnaabe rights-holders located near the proposed because there is no mechanism for the federal work, and provide adequate support and guidance to government to advise proponents to do so. facilitate the submission of input from these communities.
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5.0 REFERENCES
Canada, 2017. The Pan-Canadian Framework on Clean Growth and Climate Change
Government of Canada, 2017. Environmental and Regulatory Reviews Discussion Paper.
Government of Canada, 2017. Response to the Eleventh Report of the Standing Committee on Transport, Infrastructure, and Communities: “A Study of the Navigation Protect Act”
SCOFO. 2017. Enhancing the Protection of Fish and Fish Habitat and the Management of Canadian Fisheries. Standing Committee on Fisheries and Oceans.
Standing Committee on Transport, Infrastructure, and Communities. 2017. Study of the Navigation Protection Act
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