This is the most recent in a series of posts which discuss the proposed recommendations set out by the Expert Panel in its report entitled Building Common Ground – A New Vision for Impact Assessment in Canada, The Final Report of the Expert Panel for the Review of Environmental Assessment Processes (the "Report"). This entry will focus on some of the particulars of the assessment process as outlined in the Report.
Three-Stage Approach to Project Impact Assessment
The Report contemplates a three-stage assessment process for projects: a Planning Phase, a Study Phase, and a Decision Phase. At all phases of the assessment, the Impact Assessment Commission ("IAC") would take the lead and opportunities would be given for public participation.
The goal of the planning phase is to identify valued components, alternatives to the project that require study, and the sustainability framework for the project. To achieve this, the Expert Panel proposes the establishment of two committees for each project: a "Project Committee" and a "Government Expert Committee." The Project Committee would be composed of representatives from various levels of government, Indigenous Groups, community organizations, non-governmental organizations, the proponent, and members of the public. The Government Expert Committee would be composed of technical experts from the IAC as well as experts from government organizations and Indigenous Groups. Ultimately, the Planning Phase would result in a conduct of assessment agreement, which would identify the design of the project, the areas of study required (including alternatives to the project or alternative designs), the consultation requirements, and cost and timing factors.
The Planning Phase represents a major change from the early stages of the current environmental assessment process. According to the Report, one of the primary reasons for the suggested change is that the starting point for the current environmental assessment is perceived to be too late for communities, stakeholders and Indigenous Groups to provide input into project design or alternative means by which a project could be realized.
Once the Planning Phase is complete, the assessment moves to the Study Phase, which would be similar to the current environmental assessment process. The studies identified in the conduct of assessment agreement will be completed by various experts including indigenous and public, with input given by the Project Committee and the Government Expert Committee. These studies would form the basis for the Impact Statement (akin to the current Environmental Impact Statement) that would identify the impacts of the project on the valued components and the five pillars of sustainability: environment, economy, social, cultural and health. At the end of the Study Phase, the two committees would meet to discuss the Impact Statement. At this meeting, the proponent would be expected to confirm the final proposed project design and components.
Unlike the current EA process, which is largely proponent-driven, the development of the Impact Statement would be driven by the IAC and include all interested participants from the Planning Phase, including the Project Committee and Government Expert Committee. The Study Phase will also include accommodation of Aboriginal and treaty rights and interests.
Once the Impact Statement is completed, the project moves to the Decision Phase, in which the IAC will determine whether the project should be allowed to proceed. Where there is consensus for the Project to proceed, the Commissioner will draft an order reflecting the consensus. If there are areas of non-consensus, a review panel will be appointed to hold a hearing on all issues of non-consensus and then make the decision. The test for determining whether a project is allowed to proceed will involve a project-specific "sustainability test" to assess the impacts on valued components identified across the pillars of sustainability against established criteria; taking into account proposed mitigation and accommodation measures. In addition, the adequacy of Indigenous consultation would be addressed in the Decision Phase. The Decision Phase will conclude with the issuance of a Decision Statement allowing or rejecting the project.
The Report recommends that the IAC would seek Indigenous consent and issue a public decision statement on whether the project provides an overall net benefit to Canada across the five pillars of sustainability for present and future generations.
The proposed three-stage approach represents a significant departure from the current environmental assessment process. The recommendations in the Report look to streamline the hearing process and focus on issues of non-consensus, incorporate an independent decision maker, and build in transparent, evidence-based decisions. Overall, the process outlined in the Report focuses outcomes for projects on sustainability using net benefits, rather than the current "significant adverse environmental effects" test.
Of course, time will tell which of the proposed changes to the stages of the assessment process are adopted into legislation. The federal government will be accepting public comments on the Report until May 5, 2017.
On Friday, April 21, Lawson Lundell will be hosting a seminar on the Expert Panel’s report, and potential implications. For more information about the seminar, or to register please email firstname.lastname@example.org with your name and company name by Wednesday, April 19th. We will have video conferencing available for those participating outside of Vancouver. If you would like to join via video conference, please let us know in your RSVP response and we will send you the video and dial-in information. Please note: spaces are limited.
Lawson Lundell's Project Law Blog focuses on updating proponents on issues emerging in the law and policy that applies to the development of major projects in Canada. The focus of the blog is on matters relating to environmental assessment and compliance, regulatory matters and Indigenous consultation.