Environmental, Indigenous and Natural Resources Blog

Over the past week, the Project Law Blog has been discussing the 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”). We have provided an overview of the recommendations, discussed the Indigenous considerations outlined in the Report, and described the proposed new triggers for federal Impact Assessments. Today’s post provides an overview of the Report’s proposed new assessment authority.

Historical Approaches

Under the former Canadian Environmental Assessment Act, responsibility for environmental assessment was spread across all federal decision makers.  In 2012, responsibility for conducting assessments was centralized in three Responsible Authorities: the National Energy Board (“NEB”), the Canadian Nuclear Safety Commission (“CNSC”) and the Canadian Environmental Assessment Agency (“the Agency”).  The NEB and CNSC act as Responsible Authorities for projects requiring an assessment which they regulate, while all other assessments fall under the responsibility of the Agency.

Panel Recommendations

In response to concerns around the impartiality of the current process, the Panel has recommended that a single responsible Impact Assessment authority be created. The Impact Assessment authority should:

• be established as a quasi-judicial tribunal empowered to undertake a full range of facilitation and dispute resolution processes;
• have a strong regional presence;
• have robust internal quality assurance processes;
• provide reasons for its decisions; and
• be subject to an appeal to the Governor in Council, who should also provide reasons for its decisions.

The following sets out further recommendations of the Panel for the proposed structure of the new Impact Assessment authority.

Single, Quasi-Judicial Authority

The single responsible authority would be a new independent, quasi-judicial authority known as the Impact Assessment Commission (the “Commission”). The Commission would be the sole authority empowered to conduct and decide upon Impact Assessments for projects under federal jurisdiction. The Report refers to the Canadian Radio-television and Telecommunications Commission as an example of Canada’s longstanding experience with independent, quasi-judicial tribunals making final decisions.

The Commission would be divided into the following functions:

• Planning and Assessment;
• Science and Knowledge;
• Indigenous Relations;
• Public Participation;
• Proponent Liaison;
• Information Management; and
• Monitoring and Enforcement.

Members of the Commission would be appointed by the Governor in Council. The Commission would be headed by a Chairperson who would, along with other Commissioners, be the federal decision-makers.  The Commission would be independent with respect to its decision-making powers, though the government may be able provide direction on policy matters. The Commission would also include a Chief Science Officer with the authority and duty to verify the adequacy of studies used in Impact Assessments.

Members of Indigenous groups would play a central role in the Commission. The Commission would be empowered to work with Indigenous groups to integrate Indigenous assessment processes and to fulfil consultation and accommodation requirements.

Quality Assurance, Internal Audit & Ombudsperson

The Panel recommends that the Commission establish strong internal controls. A quality assurance program would assess the quality of Impact Assessments and ensure that continuous learning and improvement takes place; an internal audit function would ensure rigorous financial controls and disciplined money management; and an ombudsperson-type function would receive and investigate complaints regarding the Commission’s conduct and issue recommendations to the units concerned.

The reports of all of these programs and functions would be made publicly available.

Regional Presence

One of the Panel’s key recommendations is the Commission have a strong regional presence across Canada. Its operations should be conducted largely from regional offices with common services based in headquarters. Each office would be responsible for the conduct of Impact Assessments in its particular region and would be staffed to conduct the Impact Assessments, Indigenous relations, and public participation processes, as well as perform monitoring and enforcement duties.

Reasons for Decisions

The Commission will be required to provide reasons for its decisions based on the new sustainability model. In the Report, the Panel noted that the current environmental assessment process does not provide reasons or information on the justification for major projects, and viewed this as an important source of frustration and a key reason why people do not trust federal environmental assessment outcomes.

Appeal Process

The Commission’s decisions would be subject to an appeal to the Governor in Council. The appeal process would be available to any participant, though this right would be limited by some measure of standing in respect to a particular assessment. Appeal decisions should also be accompanied by full reasons based on the purposes of the legislation.

Conclusion

The recommendation for a new federal Impact Assessment authority is a significant one. Unlike changes to project triggers, which could be effected by way of amendments to current regulations, creating a new quasi-judicial authority would require substantial legislative and policy changes, the creation and staffing of regional offices, and the appointment of a diverse group of Commissioners. This recommendation will require careful consideration by the federal government and, if adopted, will likely take some period of time to implement.

As has been repeated in other posts, the extent to which the Report’s recommendations will be adopted by the federal government remains to be seen. The federal government will be accepting public comments on the Report until May 5, 2017.

With special thanks to Rochelle Collette for her assistance in researching and drafting this post. 

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 shabibovic@lawsonlundell.com 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.