Environmental, Indigenous and Natural Resources Blog

On June 20, 2016 the Government of Canada announced its review of several environmental and regulatory processes. The review will focus on three areas:

• the federal Environmental Assessment process, which was revised in 2012 by the Conservative government,

• modernization of the National Energy Board, and

• the federal Fisheries Act and Navigation Protection Act, both of which were amended in recent years under the Conservative government.

This review follows up on the Liberal government’s earlier commitment to review and restore public confidence in federal environmental and regulatory processes. The reviews of the federal Environmental Assessment processes and of the National Energy Board will each be conducted by an Expert Panel established for that purpose. The review of the recent Fisheries Act and Navigation Protection Act amendments will be conducted by the Parliamentary Standing Committees on Fisheries and Oceans and on Transport, Infrastructure and Communities. All of these reviews will seek input from the Canadian public.

The draft Terms of Reference for the Expert Panels are open for public comment until July 20, 2016. The Expert Panels are expected to submit their reports to the applicable Ministers by January 31, 2017. Similarly, it is anticipated that the Parliamentary Standing Committees will submit their reports to Parliament in early 2017.

Notably, the draft Terms of Reference for the Expert Panels require those Panels to consider the relationship between the processes under review and the Aboriginal and treaty rights of Indigenous peoples, and to reflect the principles outlined in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). This follows Canada’s announcement at the United Nations in May 2016 that Canada is now a full supporter of UNDRIP, without reservation. How Canada will implement UNDRIP is an open question, but it appears that these reviews are expected to align with that plan.

The following sections describe each of these three reviews in more detail.

• Review of Environmental Assessment processes

• The Minister of Environment and Climate Change will establish an Expert Panel to review federal environmental assessment processes associated with the Canadian Environmental Assessment Act, 2012 (CEAA 2012).

• This includes a review of how environmental assessment is conducted by the three responsible authorities under CEAA 2012: the National Energy Board, the Canadian Environmental Assessment Agency, and the Canadian Nuclear Safety Commission.

• The Expert Panel will engage and consult with the public, Indigenous groups and key stakeholders in order to develop recommendations for improving federal environmental assessment processes.

• Input is invited from the public and Indigenous groups on the draft Terms of Reference for the Expert Panel until July 20, 2016. Comments may be submitted via the designated email address (CEAA.EAReview-ExamenEE.ACEE@ceaa-acee.gc.ca), and will be posted publically.

• The Expert Panel is expected to consider the following matters:
• How to restore robust oversight and thorough environmental assessments of areas under federal jurisdiction, while working with the provinces and territories to avoid duplication;
• How to ensure decisions are based on science, facts and evidence and serve the public's interest;
• How to provide ways for Canadians to express their views and opportunities for experts to meaningfully participate;
• How to require project advocates to choose the best technologies available to reduce environmental impacts; and
• How to ensure that environmental assessment legislation is amended to enhance the consultation, engagement and participatory capacity of Indigenous groups in reviewing and monitoring major resource development projects.

• In assessing practices and procedures, the Panel is to consider the relationship between environmental assessment processes and the Aboriginal and treaty rights of Indigenous peoples, and reflect the principles outlined in the United Nations Declaration on the Rights of Indigenous Peoples.

• The Panel is also to consider how to enhance regulatory certainty in the development of major projects in Canada.

• The Minister will establish a Multi-Interest Advisory Committee with representatives of Indigenous organizations, industry associations and environmental groups to provide advice to the Expert Panel.

• The Expert Panel must provide its resulting report to the Minister by January 31, 2017, including the Panel’s conclusions, recommendations and rationale, as well as a summary of the input that the Panel receives.

• Northern Environmental Assessment regimes that are applicable in Nunavut, the Northwest Territories and Yukon are not being reviewed by this Panel. Rather, the Minister of Indigenous and Northern Affairs is responsible for reviewing the northern Environmental Assessment regimes.

• National Energy Board Modernization

• The Minister of Natural Resources has been given the mandate to modernize the National Energy Board and to ensure that its composition reflects regional views and has sufficient expertise in the fields of environmental science, community development, and Indigenous traditional knowledge.

• The Government will establish an Expert Panel this summer that will consult with Indigenous peoples, key stakeholders and Canadians across the country and provide advice on potential reforms to the National Energy Board and the National Energy Board Act.

• This review will focus on issues that fall outside the separate review of federal Environmental Assessment processes being conducted (described above) by the panel reporting to the Minister of Environment and Climate Change. The NEB modernization review will focus on the following matters:
• Governance and structure, including, among other things, composition and expertise the Board, as well as the governance and division of the NEB’s operational and adjudicative functions;
• Mandate and future opportunities, potentially including recommendations on defining and measuring public interest, and the possibility of expanding the mandate of the NEB to support the transition to a low carbon economy;
• Decision-making on major projects, including the assignment of decision-making as between the NEB, the Minister, and the federal Cabinet;
• Compliance, enforcement, and ongoing monitoring, particularly the legislative tools available to the NEB;
• Engagement with Indigenous peoples, including how the interests of Indigenous peoples are balanced against the many societal interests involved; and
• Public participation, including the potential for legislative changes to support increased stakeholder and public participation in NEB activities.

• In assessing NEB activities the Panel is to consider the relationship between processes and the aboriginal and treaty rights of Indigenous peoples, and reflect the principles outlined in the United Nations Declaration on the Rights of Indigenous Peoples.

• The draft Terms of Reference for the Expert Panel are available for public review and comment until July 20, 2016. Comments may be submitted by email to the following address NRCan.NEBModernization-ModernisationONE.RNCan@Canada.ca.

• The Expert Panel is expected to provide a report with recommendations to the Minister of Natural Resources by January 31, 2017, which will be made public. The report is to include the Panel's findings and recommendations to modernize the NEB, including potential legislative amendments, and a summary of the input received.

• Review of recent changes to the Fisheries Act and the Navigation Protection Act

• The Minister of Fisheries, Oceans and the Canadian Coast Guard and the Minister of Transport are asking Parliament’s Standing Committee on Fisheries and Oceans and the Standing Committee on Transport, Infrastructure and Communities to examine changes made to the Fisheries Act in 2013 and to the Navigable Waters Protection Act (now called the Navigation Protection Act) in 2014.

• Engagement with the provinces and territories will occur during the Summer of 2016.

• Public engagement with the Standing Committees is to occur in the Fall of 2016. Canadians are welcome to submit briefs or to request to appear as witnesses before the Standing Committees. The public may also attend committee hearings or watch them on the parliamentary web channel.

• Canadians are also encouraged to share their views online.

• The Parliamentary Standing Committees are expected to submit their reports and recommendations to Parliament in early 2017.

The government’s June 20^th announcement can be found at www.canada.ca/environmentalreviews.

We recognize that many of our clients and others may wish to submit recommendations to these reviews. If you would like assistance in that regard, please contact any of the following lawyers: Brad Armstrong, QC, Christine Kowbel, or Jennifer Nyland.