ABORIGINAL LAW CONFERENCE 2013 PAPER 1.2 Environmental Assessment in Canada and Aboriginal Law: Some Practical Considerations for Navigating through a Changing Landscape These materials were prepared by Timothy P. Leadem, QC, of T. Leadem Law Corporation, Vancouver, BC, for the Continuing Legal Education Society of British Columbia, October 2013. Timothy P. Leadem, QC
1.2.1 ENVIRONMENTAL ASSESSMENT IN CANADA AND ABORIGINAL LAW: SOME PRACTICAL CONSIDERATIONS FOR NAVIGATING THROUGH A CHANGING LANDSCAPE I. Introduction...1 II. The Legislative Framework for Environmental Assessment in Canada...1 A. The Canadian Environmental Assessment Act, 2012... 1 B. Engagement of Aboriginal Groups in the Process... 2 1. The Screening Process... 2 2. Environmental Assessment under CEAA 2012... 2 3. Review Panels... 3 4. What About Consultation with Canada?... 5 III. Conclusion... 6 I. Introduction One of the principal aims of environmental impact assessment ( EIA ) is to prevent environmental degradation that may be occasioned through a project. EIA does so by identifying the significant adverse environmental effects that may occur through the design and implementation of designated projects and then providing for either elimination or mitigation of those effects. In such a manner, the true costs of a development proposal are accounted for and then potentially ameliorated in the construction and implementation phase of any given project. The result of a properly conducted EIA would be a project that from an economic, social, cultural and environmental perspective is a well thought out design that would deal with the known potential risks to the environment. This paper focuses upon recent changes to EIA in Canada from a Federal perspective. Provincial laws are only taken into consideration to the extent that the federal legislation either incorporates them or provides for their involvement. The primary focus of this paper is for practitioners in Aboriginal Law. II. The Legislative Framework for Environmental Assessment in Canada A. The Canadian Environmental Assessment Act, 2012 The Federal legislation is mostly contained in the Canadian Environmental Assessment Act, 2012, S.C. 2012, c. 17, s. 52 ( CEAA 2012 ). This Act replaced the Canadian Environmental Assessment Act, S.C. 1992, c. 37 ( CEAA 1992 ). It is outside the ambit of this paper to provide a complete synopsis of both Acts and the detailed differences between them. However, there are major changes to the EIA process that are brought about through the passage of the CEAA 2012. Practitioners in the field are urged to consult the CEAA 2012 and regulations. There are some significant issues that arise for practitioners in aboriginal law.
1.2.2 B. Engagement of Aboriginal Groups in the Process 1. The Screening Process The first step that a proponent of a designated project is likely to take involves what the CEAA 2012 describes as a screening. The proponent files an application with the responsible agency. Once the responsible agency determines that the proposal is complete (within the meaning of ss. 8 and 9 of the CEAA 2012) then it posts a notice to the Internet site (that is established pursuant to s. 79). The Internet site may be found here: http://www.ceaa-acee.gc.ca/050/index-eng.cfm The clock for public comment starts ticking at this stage and members of the public have a short time frame of 20 days to provide comments to the agency with their concerns. Aboriginal peoples have constitutionally protected rights pursuant to s. 35 of the Constitution Act, 1982. One could very well argue that the process of consultation with an aboriginal group that may be affected by a statutory determination made pursuant to this screening process would be mandatory. Indeed a prudent proponent would have commenced consultations with the appropriate aboriginal group prior to the submission of its application to the Canadian Environmental Agency ( CEA ) that commenced the screening process. Discussions at this juncture should involve the provision of proper funding that proponents should contemplate paying in order to achieve the proper level of effective consultation. Even with a proper level of consultation that preceded the application, I think that Aboriginal groups should register their concerns at the screening stage in the process in order to get potential redress at this or at a later stage. At a minimum the concerned Aboriginal group should identify itself, the nature of its concerns (e.g., a treaty or Aboriginal right to hunt and fish that may be impacted by the project), its prima facie claim or assertion of claim of any Aboriginal right that may be infringed, and contact information including the names of counsel for the Aboriginal group. Within 45 days following the posting, the CEA must make a decision whether an environmental assessment is required (s. 10 of the CEAA 2012). Once again, the time frames are short. 2. Environmental Assessment under CEAA 2012 Should the CEA make a determination that an environmental assessment is required then the focus shifts to the responsible agency that would be responsible for conducting that environmental assessment. In that regard, s. 15 of the CEAA 2012 is instructive. The responsibility for conducting an environmental assessment rests with: (1) the Canadian Nuclear Safety Commission (for nuclear projects); (2) the National Energy Board (for international and interprovincial pipelines and transmission lines); or (3) the Canadian Environmental Assessment Agency (for all other designated projects). Participation by the aboriginal group that may have registered its concerns during the screening, is the next consideration. However, before doing so, I would like to discuss the concept of interested parties. The CEAA 2012 specifically defines interested parties in the context of engagement into the environmental assessment process. Aboriginal groups are not specifically mentioned in that regard. However, given that all statutes must be read in the context of the constitution and that Aboriginal people possess constitutionally derived rights pursuant to s. 35 of the Constitution Act, 1982, then Aboriginal peoples must be consulted in situations where their Aboriginal rights may be affected by a decision made by a statutory decision maker. The CEAA 2012 defines interested parties:
Interested party 1.2.3 (2) One of the following entities determines, with respect to a designated project, that a person is an interested party if, in its opinion, the person is directly affected by the carrying out of the designated project or if, in its opinion, the person has relevant information or expertise: (a) in the case of a designated project for which the responsible authority is referred to in paragraph 15(b), that responsible authority; or (b) in the case of a designated project in relation to which the environmental assessment has been referred to a review panel under section 38, that review panel. In determining whether parties are interested or not, the decision body probably has total discretion in making that determination. However, the purpose of that section of the CEAA 2012 may provide some context for that determination. Specifically, that provision provides: Purposes 4(1) The purposes of this Act are (a) to protect the components of the environment that are within the legislative authority of Parliament from significant adverse environmental effects caused by a designated project; (d) to promote communication and cooperation with aboriginal peoples with respect to environmental assessments; (e) to ensure that opportunities are provided for meaningful public participation during an environmental assessment; And later in defining what constitutes an environmental effect the CEAA 2012 provides: 5(1) For the purposes of this Act, the environmental effects that are to be taken into account in relation to an act or thing, a physical activity, a designated project or a project are (c) with respect to aboriginal peoples, an effect occurring in Canada of any change that may be caused to the environment on (i) health and socio-economic conditions, (ii) physical and cultural heritage, (iii) the current use of lands and resources for traditional purposes, or (iv) any structure, site or thing that is of historical, archaeological, paleontological or architectural significance. Given this statutory context, it is difficult to conceive of a situation where an Aboriginal band or group that could show a connection with its constitutionally protected rights and the proposal brought forward by a designated project would not be considered to be an interested party with full rights of standing at any review that may emanate from a decision to hold an environmental assessment. 3. Review Panels Within 60 days of the initiation of the environmental assessment process (posting to the Internet site), the Minister of the Environment may appoint a review panel. There is an opportunity for members of the public to participate in the environmental assessment (see s. 24 of the CEAA 2012 but also be mindful of s. 28 of the Act that contains an exception for NEB s. 54 hearings). General rules for the conduct of the review panel are found at s. 38-51 of the CEAA 2012. At an early stage in the process and if funds are needed to effectively become engaged with the EIA, then the Aboriginal community should apply for participation funding (http://www.ceaa-acee.gc.ca/default.asp?lang=en&n=9772442e-1&offset=&toc=hide). Funding for projects that proceed under the NEB have their own funding programs (ss. 57-58 of the CEAA 2012).
1.2.4 One of the factors to be considered for the EIA are comments from members of the public or in the case of the NEB, interested parties: Factors 19(1) The environmental assessment of a designated project must take into account the following factors: (c) comments from the public or, with respect to a designated project that requires that a certificate be issued in accordance with an order made under section 54 of the National Energy Board Act, any interested party that are received in accordance with this Act; Community knowledge and Aboriginal traditional knowledge (3) The environmental assessment of a designated project may take into account community knowledge and Aboriginal traditional knowledge. Obviously the Aboriginal community would be well positioned to provide the Traditional ecological knowledge ( TEK ) to the review panel. Thus efforts should be made to marshall the evidence as part of the hearing process. Once again, there may be a need for funding in order to adequately and effectively participate in the process. In preparing and participating in an review before a panel or joint review panel, counsel for an Aboriginal group should consider the following issues: who is responsible for giving instructions on the file for both major issues and for minor issues that may arise during the course of the hearing? have funding applications been made? what about alternative sources for funding? what procedures have been specifically adopted for the hearing? are there preliminary motions that need to be made concerning the production of evidence or information from the proponent? is there a need for informational requests? if so, have all informational requests been made in accordance with the specific rules of the hearing panel? Many review panels have strict time frames for the introduction of evidence and for documents that may be placed before witnesses during the course of the hearing-have those timeframes been diarized? what type of evidence is going to be led on behalf of the client? which experts will be needed to give evidence? who will give evidence of TEK? will experts be available to assist in preparation of cross examination of witnesses? are all witnesses prepared to give their evidence? It is useful to conduct dry runs of both the direct examinations as well as subjecting your witnesses to sample cross examination in order to properly prepare them to give testimony. for long and complicated hearings, counsel may want to form a team to enable effective representation over the long haul. If so, it is important to define roles and discuss calendars to maximize the team effort. The CEAA 2012 also provides for a time frame for completion of the EIA and for delivery of reasons or recommendations. Given such short time frames, it is important for counsel who are engaged in the process to insure that they have adequate time to prepare for the hearing. Especially for complicated EIA s, there is the need to get up to speed rather quickly. Generally, the proponent will file much written material as part of their EIA statement. Because of the foreshortened time frames, it may be useful to engage with counsel for the Proponent to establish a good working relationship as the hearing process unfolds. Of course a prudent proponent would have already engaged the aboriginal group in discussions and provided funding to enable the process to run smoothly. Otherwise there may be applications to delay the hearings.
1.2.5 4. What About Consultation with Canada? It is outside the ambit of this paper to discuss how meaningful consultation should play out in the context of environmental assessment following the passage of CEAA 2012. What follows is how Canada perceives its role and obligations to consult for an EIA. While Canada generally follows a whole government obligation to consult with aboriginal peoples, in the context of EIA, the lead agency for consultation is the CEA. Indeed s. 105 of the CEAA 2012 provides: Agency s objects 105. The Agency s objects are (a) to conduct or administer environmental assessments and administer any other requirements and procedures established by this Act and the regulations; (b) to promote uniformity and harmonization in relation to the assessment of environmental effects across Canada at all levels of government; (c) to promote or conduct research in matters of environmental assessment and to encourage the development of environmental assessment techniques and practices, including testing programs, alone or in cooperation with other agencies or organizations; (d) to promote environmental assessment in a manner that is consistent with the purposes of this Act; (e) to promote, monitor and facilitate compliance with this Act; (f) to promote and monitor the quality of environmental assessments conducted under this Act; and (g) to engage in consultation with Aboriginal peoples on policy issues related to this Act. Leaving aside the perplexing issue of how the CEA engages in consultation with Aboriginal peoples on policy issues related to this Act, I would like to focus on how the agency sees its obligations to consult on a case by case basis. In that regard, further information on how the CEA sees its role in consultation may be gleaned from the website for the CEA. What follows are extracts from that website: Opportunities for Aboriginal Consultation As Crown Consultation Coordinator, the Agency coordinates federal Aboriginal consultation activities and provides Aboriginal groups with an opportunity to comment on: Potential environmental effects of the project and how they should be included in the environmental assessment; The potential impacts of a project on potential or established Aboriginal or Treaty rights; Mitigation measures; and Follow-up programs. Agency Approach to Aboriginal Consultation As Crown Consultation Coordinator, the Agency: Identifies Aboriginal groups whose potential or established Aboriginal or Treaty rights may be adversely affected by the proposed project; Invites identified Aboriginal groups to provide comments in relation to the EA; Provides Aboriginal groups with information about the proposed project and the EA process;
1.2.6 Provides funding to assist eligible Aboriginal groups in preparing for and participating in consultation activities through the Agency s Participant Funding Program; Considers the feedback provided by Aboriginal groups during the consultation process, including any concerns or issues raised, prior to any decisions being final; and Identifies mitigation and accommodation measures that may be required to address issues raised during the consultation process. The nature and level of consultation activities undertaken by the Agency will vary on a project-by-project basis and are dependent on the nature of the potential or established Aboriginal or Treaty rights, and the extent and severity of the potential adverse impacts of the proposed project on those rights. A step-by-step approach to federal Aboriginal consultation is articulated in the Updated Guidelines for Federal Officials to Fulfill the Duty to Consult, 2011. Without addressing the adequacy of these published criteria, the following questions remain extant: When exactly will consultation take place during the course of an EIA? Does consultation take place on the public record as part of the EIA before the review panel? Or does it take place independently of that process? If the latter how does the consultation record get placed before the review panel? Just exactly how will consultation proceed? What is the role of the proponent during the consultation that may occur on a designated project? Can Canada rely upon that consultation record as part of its own obligations to consult? III. Conclusion Certainly the CEAA 2012 presents as an ambitious model that differs significantly from its predecessor. While one could go on at length to critique the changes, the law is basically with us until changed otherwise. Many of the actual work of the statute will await the passage of regulations made pursuant to the Act. These regulations will flesh out the bones of the Act and will bear careful scrutiny. Hopefully, that regulatory rule making would have been carried out in the spirit of s. 105 of the CEAA 2012 with proper opportunity to comment being sought and obtained from aboriginal groups. Otherwise, the ambitious model that is built for speed will instead flounder in the halls of justice as challenge after challenge is mounted to contest its validity.