Focus: Review of EA process needs improvement: lawyers

Communications and funding failures are threatening to undermine indigenous engagement in the federal government’s comprehensive review of its environmental assessment process, according to a Toronto lawyer.

An independent expert panel unveiled in August is in the middle of public hearings as it prepares to make recommendations for the overhaul of the controversial Canadian Environmental Assessment Act, 2012. The panel aims to report in the new year so that the federal government can get legislation in front of Parliament as soon as possible.

But Matt McPherson, a lawyer with Olthuis Kleer Townshend LLP, a firm with a focus on aboriginal law, says the panel’s ambitious deadline and rushed timetable has discouraged participation from some of the groups with the greatest interest in the EA process.

“This exercise has the potential to be really beneficial. The fact that the government is doing this review across the board makes it a once-in-a-lifetime opportunity, but the problem so far has been with the process and the uncertainty it has created,” he says. “Engaging the full range of people, and for indigenous groups, taking into account their specific concerns in a real and substantial way, is necessary to have a fully functioning EA process.”

McPherson says inadequate communication about the review left First Nations with little time to prepare meaningful submissions ahead of the first public hearings, while a funding program run by the Canadian Environmental Assessment Agency designed to assist aboriginal groups who want to take part had already stopped accepting applications by the time many even became aware of its existence.

“It kind of underscores the concerns that indigenous groups have with the environmental assessments process more generally,” McPherson says. “There are these arbitrary timelines that are very rigid and don’t take into account internal capacity issues that affect groups’ ability to respond in a timely manner.”

Even those who got their applications in on time have found themselves left in limbo, thanks to funding decisions that come just days or weeks before scheduled hearings, and suggestions that any activities commenced before approval may not be covered. Without certainty about funding availability, it’s difficult for McPherson’s clients to invest in the kinds of scientific and expert reports that will improve the quality of their submissions, he says.

“In Saskatoon, there were First Nations appearing to present the views of their community who didn’t know if they were going to get funding,” McPherson says.
“The big concern is that bureaucratic snafus have created a situation where it may actually discourage participation. I don’t think that’s what the government wants, but that is the practical reality on the ground, and it’s something they need to get a hold of and fix.”

Despite his issues with the consultation process so far, McPherson says he was encouraged by the federal government’s emphasis on making sure that the legislation that emerges from the review reflects its support for the United Nations Declaration on the Rights of Indigenous Peoples. 

Kirsten Mikadze, a Toronto lawyer in the environmental law group at Siskinds LLP, says she sees the current review as an extension of — as well as a reaction to — the changes made to the environmental assessment in 2012 by the previous federal administration.

Stephen Harper’s government repealed the 1992 version of the CEAA in its entirety, replacing it in omnibus bills with a new version that consolidated the power to review big projects in just a few government agencies and removed the requirements for them altogether in some smaller projects. In government parlance, the changes sped up and streamlined the EA process, while critics alleged they simply neutered environmental oversight. 

Richard Lindgren, counsel to the Canadian Environmental Law Association, says he hopes to convince the panel to scrap the CEAA, 2012 altogether and start again from scratch.

“It’s pretty clear that mere tweaks to the existing legislation will not be enough,” he says. “It needs a fundamental rewrite, and we’re hopeful the panel will be responsive to our recommendations.”

According to the CELA, the new EA process should shift away from the traditional approach, which tends to focus on adverse effects and mitigation efforts, to what it calls a “sustainability assessment” approach, where the emphasis is on delivering “long-term, mutually reinforcing and fairly distributed benefits from approved undertakings,” the group says in its submission to the review panel.    

Mikadze says she hopes the new legislation provides for an environmental assessment process that delivers opportunities for public participation.

“I know when an environmental assessment is going on, it can be costly, lengthy and potentially challenging to have everyone’s voice heard on some issues, but I think the objective needs to be about creating meaningful dialogue,” she says. “The 2012 changes seemed to narrow some of the existing avenues for public participation.”