Review of environmental assessment processes: Expert Panel Terms of Reference

Context

Currently, federal environmental assessment informs government decision-making and supports sustainable development by identifying opportunities to avoid, eliminate or reduce potential adverse impacts on the environment and by ensuring that mitigation measures are applied.

The Government of Canada fully supports the principles of the United Nations Declaration on the Rights of Indigenous Peoples, with the goal of renewing its relationship with Indigenous people in Canada and moving toward reconciliation.

The mandate letter of the Minister of Environment and Climate Change (the Minister) directs her, as a top priority, to “immediately review Canada’s environmental assessment processes to regain public trust and help get resources to market and introduce new, fair processes that will:

• restore robust oversight and thorough environmental assessments of areas under federal jurisdiction, while working with provinces and territories to avoid duplication;
• ensure decisions are based on science, facts and evidence and serve the public’s interest;
• provide ways for Canadians to express their views and opportunities for experts to meaningfully participate; and
• require project advocates to choose the best technologies available to reduce environmental impacts.”

In carrying out this review, the Minister is to be supported by the Minister of Fisheries, Oceans and the Canadian Coast Guard, the Minister of Natural Resources, the Minister of Indigenous and Northern Affairs and the Minister of Science.

The Minister is establishing an Expert Panel (the Panel) to conduct a review of environmental assessment processes. The Panel will engage and consult with Canadians, Indigenous people, provinces and territories and key stakeholders to develop recommendations on ways to strengthen and improve federal environmental assessment processes.

Mandate

The Panel’s review shall consider the goals and purpose of modern-day environmental assessment and be conducted in a manner that is consistent with these Terms of Reference.

The Panel shall prepare a report that sets out:

• the conclusions, recommendations and rationale for the conclusions and recommendations of the Panel; and
• a summary of the input received and how it was considered, including that from the Multi-Interest Advisory Committee or other experts.

Complementary mandates

Environmental assessment is one part of a broader regulatory framework. In addition to the Minister’s mandate to review federal environmental assessment processes, other ministers have also been mandated to carry out reviews and propose reforms to matters that intersect with environmental assessment. These include:

• Minister of Fisheries and Oceans and the Canadian Coast Guard– review changes to the Fisheries Act, restore lost protections and incorporate modern safeguards;
• Minister of Natural Resources – modernize the National Energy Board to ensure that its composition reflects regional views and has sufficient expertise in fields such as environmental science, community development and Indigenous traditional knowledge; and
• Minister of Transport – review changes to the Navigable Waters Protection Act, restore lost protections and incorporate modern safeguards.

The Panel shall focus on those relevant matters that intersect with federal environmental assessment. For example, this will include the roles of federal expert departments in supporting the Canadian Environmental Assessment Agency as it conducts assessments and carries out compliance and enforcement activities. If matters are raised that are outside the scope of environmental assessment, but are related to the other mandated reviews, the Panel will receive the information and forward it to the appropriate secretariat or department supporting the mandated review. Participants who would like to participate in the other mandated reviews are not expected to duplicate efforts; a single submission can be made to one or more reviews. The relevant information will be shared with the appropriate review bodies with the consent of participants.

Given that the territories have distinct and effective environmental assessment regimes rooted in constitutionally-protected land claim agreements with specific mechanisms for consultation and public participation, matters related to northern environmental assessment regimes will not be reviewed by the Panel. However, the approaches adopted in these regimes may be of interest and relevance to the Panel as it considers ways to improve and strengthen federal environmental assessment processes.

Proposed amendments to the Yukon Environmental and Socio-economic Assessment Act have already been introduced in Parliament. Indigenous and Northern Affairs Canada will continue to work with Aboriginal and territorial governments on this front. The Minister of Indigenous and Northern Affairs intends to launch a process soon to work with all applicable First Nations and the territorial government in Northwest Territories to identify possible solutions related to the Mackenzie Valley Resource Management Act.

Scope of review

In carrying out the review, the Panel shall consider the following matters raised in the Minister’s mandate letter and the mandate letter of the Minister of Indigenous and Northern Affairs (Question 5):

1. How to restore robust oversight and thorough environmental assessments of areas under federal jurisdiction, while working with the provinces and territories to avoid duplication?
2. How to ensure decisions are based on science, facts and evidence and serve the public’s interest?
3. How to provide ways for Canadians to express their views and opportunities for experts to meaningfully participate?
4. How to require project advocates to choose the best technologies available to reduce environmental impacts?
5. 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?

This should include, for example:

• how environmental assessment processes are conducted under the Canadian Environmental Assessment Act, 2012, including practices and procedures, such as Indigenous engagement and consultation, public participation, the role of science and Indigenous knowledge, cumulative effects assessment and harmonization and coordination with other orders of government;
• practices and approaches within Canada and internationally;
• relationship between environmental assessment and other elements of the regulatory framework; and
• alignment of various jurisdictional processes.

To recognize the objectives of the United Nations Declaration on the Rights of Indigenous Peoples, the Panel shall reflect the principles of the Declaration in its recommendations, as appropriate, especially with respect to the manner in which environmental assessment processes can be used to address potential impacts to potential or established Aboriginal and treaty rights.

The review process

The Panel

The Minister will appoint individuals to the Panel that have knowledge or experience relevant to environmental assessment processes.

The Panel will consist of four members, including one Chairperson. In the event that a Panel member resigns or is unable to continue to work, the remaining members shall constitute the Panel unless the Minister determines otherwise. In such circumstances the Minister may choose to replace the Panel member.

By way of letter from the Chairperson, the Panel may request clarification of its Terms of Reference from the Minister. The Panel shall continue with its review to the extent possible while waiting for a response in order to comply with the timelines of these Terms of Reference.

The Panel shall issue a notice to the public regarding any clarifications to its Terms of Reference and shall make those clarifications available on its website.

By way of letter from the Chairperson, the Panel may request an amendment to its Terms of Reference from the Minister. The Panel shall continue with its review to the extent possible while waiting for a response from the Minister in order to comply with the timelines of these Terms of Reference.

Upon appointment of the Panel, the Canadian Environmental Assessment Agency will provide to the Panel the comments received during the comment period on the draft Terms of Reference. The input received through the online questionnaire “Improving Canada’s Environmental and Regulatory Processes” will also be provided to the Panel.

The Panel Secretariat

The Panel Secretariat will provide administrative, technical and procedural support as requested by the Panel and shall be comprised of staff from the federal public service, under the direction of an Executive Director. The Secretariat will report to the Panel and will be structured to allow the Panel to conduct its review in an efficient and cost-effective manner. The Secretariat will liaise and facilitate the flow of information with the relevant bodies supporting the other related mandated reviews. Members of the Secretariat shall be guided in their work and professional conduct by the Values and Ethics Code for the Public Service.

Conduct of the review

Timeline

The Panel shall complete its review and provide its report with recommendations to the Minister by March 31, 2017.

Public access to information

The Panel shall create and maintain a website which makes public the information it receives during the course of the review.

The Panel shall also offer opportunities for online engagement and provide procedures for the receipt of written submissions. The results of any online engagement carried out and any written submissions received shall be posted on the Panel’s website.

Public engagement

The Panel shall communicate directly with a broad cross-section of interested groups, organizations and individuals during its review to gain an understanding of issues and opportunities related to federal environmental assessment processes.

The Panel shall prepare a Public Engagement Plan outlining how and when it will conduct in-person events. In preparing the Plan, the Panel shall take into account the activities associated with the other mandated reviews. This Plan shall be posted on the Panel’s website.

The Panel shall also include any procedures necessary for the timely and efficient conduct of the events. The procedures will allow for the events to be open to the public and be conducted in a manner that offers all participants an opportunity to participate. The Panel shall ensure that a record of any in-person engagement event is created and posted on the Panel’s website.

The Panel shall, where practicable, hold in-person engagement events in regions or communities where project environmental assessments have been recently conducted or where interest has been expressed in the review.

The Panel shall take into account the timing of traditional activities in the local regions and communities when setting the time and location of in-person engagement events.

Indigenous engagement and consultation

The Panel shall directly engage and consult with Indigenous organizations, groups, communities and individuals during its review in order to gain an understanding of issues and opportunities related to federal environmental assessment processes.

The Panel shall prepare an Indigenous Engagement Plan, outlining how and when it will conduct Indigenous in-person consultation activities. The Panel shall meet with the leadership of National Indigenous Organizations in the preparation of the Plan. In preparing the Plan, the Panel shall take into account the activities associated with the other mandated reviews. This Plan shall be posted on the Panel’s website. The Panel shall work with regional Indigenous organizations in the planning and hosting of Indigenous in-person consultation activities.

The Panel shall also include any procedures necessary for the timely and efficient conduct of these activities. The procedures will allow for the events to be open and to be conducted in a manner that offers all participants an opportunity to participate. The Panel shall ensure that a record of any Indigenous in-person engagement event is created and posted on the Panel’s website.

The Panel shall, where practicable, hold Indigenous in-person consultation activities in regions or communities where project environmental assessments have been recently conducted or where communities have expressed interest in the review.

The Panel shall take into account the timing of traditional activities in the local regions and communities when setting the time and location of Indigenous in-person consultation activities.

Multi-Interest Advisory Committee

A Multi-Interest Advisory Committee with representatives of Indigenous organizations, industry associations and environmental groups will be established by the Minister to provide advice to the Panel.

The Panel will identify a select number of issues which may benefit from discussion by the Multi-Interest Advisory Committee. The Multi-Interest Advisory Committee may also recommend to the Panel issues that would benefit from discussion. The Panel will, by way of a letter to the Canadian Environmental Assessment Agency, as convener of the Multi-Interest Advisory Committee, describe the issues for which it seeks advice and provide any relevant context to support the discussions by the Multi-Interest Advisory Committee.

The Multi-Interest Advisory Committee will meet as required in order to discuss the issues and will provide its consensus advice, to the extent possible, for the Panel’s consideration and in accordance with any timeline provided by the Panel. Any advice provided to the Panel will be posted on the Panel’s website. The Panel will include a summary of any advice provided in its Report.

Expert advice

Where expertise cannot be provided by the Multi-Interest Advisory Committee, the Panel may retain the services of other experts on certain subjects within its mandate. Any information provided to the Panel by experts will be posted on the Panel’s website.

Environmental assessment review report

The report, reflecting the views of each Panel member, shall include:

• an executive summary of the report;
• the conclusions, recommendations and rationale for the conclusions and recommendations of the Panel with respect to the relevant issues within the mandate provided to the Panel; and
• a summary of the input received and how it was considered, including that from the Multi-Interest Advisory Committee or other experts.

The Panel shall submit the report to the Minister, and on request of the Minister, clarify any of the conclusions and recommendations set out in its report.

Upon receiving the report of the Panel, the Minister will make the report available to the public.

Participant funding

The Canadian Environmental Assessment Agency will offer participant funding to Indigenous organizations, groups, communities and individuals to support their participation in the review.

Deliverables

• Public engagement plan
• Indigenous engagement plan
• Report

Official languages

All deliverables and any other documents produced by the Panel for the purpose of communicating information to the public must be produced and made publicly available in both official languages. The Executive Summary and the final report will be made available March 31, 2017 in both official languages. Documents provided to the Panel will be made publicly available in the language that they were received.

Confidentiality

All information gathered by the Panel in the course of its work is subject to the provisions of the Access to Information Act and the Privacy Act.