SKEENA FISHERIES COMMISSION

Transcription

1 SKEENA FISHERIES COMMISSION 3135 Barnes Crescent Kispiox, British Columbia VOJ 1Y August 7, 2017 Dear Sirs and Mesdames: RE: ENVIRONMENTAL ASSESSMENT PROCESS REVIEW, SUMMER 2017 INDIGENOUS ENGAGEMENT Further to our original submission 1 to the Expert Panel Review of Environmental Assessment Processes (the Expert Panel ) in November 2016, Skeena Fisheries Commission ( SFC ) is pleased to provide you with our further recommendations and comments on the Environmental Assessment (EA) Review Process. SFC is a 35 year old Indigenous institution that focuses on fisheries management, science, and conservation. The original SFC signatories are five Indigenous Nations with traditional territory in the Skeena watershed and the adjacent north coast of British Columbia. This includes the Tsimshian, the Gitxsan, the Gitanyow, the Wet suwet en and the Lake Babine Nations. Currently, SFC s member Nations include the Gitxsan, the Gitanyow, and the Wet suwet en. The Commission, as directed by its member Nations, responds to management and access priorities relating to the broad Indigenous interest in the fisheries resource, and also provides technical expertise and advice to its member Nations. SFC put considerable effort into its original submission and presentation to the Expert Panel. While the Expert Panel did not adopt all of our recommendations, we felt that they had likewise invested considerable time, effort, and innovation in creating their vision for the process as outlined in their report 2. Canada s EA process was once one of the most modern and forward-thinking in the world, and we were pleased that the Expert Panel recognized the need to make major changes to regain the ground lost under the Harper government and regain that position. Unfortunately, the process and directions outlined in the discussion paper prepared by the Government of Canada in response to the review 3 (the discussion paper ) does not adopt the more substantial changes proposed by the Expert Panel and as a result falls short of the modern, effective, and efficient process envisioned by the Expert Panel. The following submission responds to the discussion paper by identifying the proposed changes that will help to modernize our EA process as well as the gaps where the proposed changes are insufficient. The recommendations in this submission derive from our technical experts, the advice and guidance of our member Nations leadership, and the considered opinions of the Expert Panel with the expectation that 1 Skeena Fisheries Commission, Submission to the Expert Panel: Review of Environmental Assessment Process 2 Expert Panel for the Review of Environmental Assessment Processes Building Common Ground: A New Vision for Impact Assessment in Canada. 3 Environmental and Regulatory Reviews Discussion Paper, June Government of Canada

2 the Government of Canada will take them into consideration as they move forward. SFC urges the Government of Canada to reflect on the fact that the EA process it enacts is likely to stand for a decade or more, shaping Canada s communities, environment and its reputation in the world. The choices made on this topic will influence whether Canada successfully balances its considerable resource and development opportunities, its obligations to Indigenous peoples, and its environment to create a healthy and sustainable country. Sincerely, Kyla Warren, Environmental Assessment Biologist Skeena Fisheries Commission

3 ADDRESSING CUMULATIVE EFFECTS SFC agrees with both the Expert Panel report and the Government of Canada discussion paper that the EA framework currently lacks mechanisms to consider the bigger picture when it comes to assessing and preventing environmental impacts. The use of strategic and regional assessments as tools for managing cumulative effects was put forward in the SFC submission to the Expert Panel and we are pleased to see their inclusion in the discussion paper. Regional and strategic assessments provide much-needed opportunities for planning development and identifying current and potential stressors on communities and the environment. It is important that they are carried out following best practices if they are to be effective. These assessments must be proactive: the greatest value of these assessments comes from early implementation before multiple major projects are taking part in the EA process. Strategic and regional EAs should be undertaken where past or future development is likely to create pressures on the environment or communities, conflict over resource development is anticipated, there is insufficient Indigenous consultation, there is the potential for cumulative effects, or there are competing demands for resources. Study areas should be based on ecological boundaries, such as watersheds or airsheds rather than political boundaries. The undertaking of EAs should include all involved parties, including provincial, federal, and Indigenous governments, and municipalities. The strategies and directives generated during the strategic and regional EAs should be made with multi-generational timeframes in mind, but have timelines for regular review and be open for reconsideration if substantial changes or new information emerges. Most importantly, strategic and regional EAs should not become a theoretical and seldom-used option. They should be a commonly-used planning tool, and not one reserved for exceptional circumstances or only used after project-level EAs fail. Cumulative effects are a concern in many areas throughout Canada, including the Skeena Watershed. It is difficult to imagine a location better-suited for a regional EA than the Skeena Watershed, where rapid industrial development, historical activities, and the changing climate have created a complex and difficult-to-manage mix of impacts to natural resources that are vital to local communities. Strategic and regional assessments provide an opportunity to address another large gap in the current assessment process: small scale but widespread activities that cause no significant impacts on their own but add up in the big picture. Currently, there is no mechanism for identifying or addressing the accumulated impact of these activities. A regional perspective on cumulative impacts is needed to give impacts from individual smaller projects proper consideration. Cumulative effects analyses as currently carried out under the Canadian Environmental Assessment Act are also lacking in detail, specificity, and rigour. Cumulative impact statements associated with projectlevel EAs are currently usually qualitative and vague and often suffer from a lack of information sharing 1

4 between proponents. Quantitative values are needed to weigh the impacts against benefits from the project. Quantification of cumulative impacts would also be furthered by obligating project proponents to participate in and help fund research related to furthering an empirical understanding of cumulative effects and to share quantitative information about current and potential future impacts with other project proponents where relevant. EARLY ENGAGEMENT AND PLANNING The Panel s proposal for a formal Planning Phase in the EA process is one that SFC fully supports and SFC is pleased to see it reflected in the discussion paper. The proposal in the discussion paper for direct bilateral engagement between Indigenous groups and the Government of Canada is also a positive one that would improve the quality of engagement in the EA process. The proposal for variable EA process timelines is a desperately-needed addition that will allow for more in-depth engagement where needed. As proposed by the Expert Panel, the Planning Phase would be a worthwhile addition to the EA process that would decrease conflict and allow for a more flexible project planning process that would be responsive to the concerns of regulators, Indigenous groups, and stakeholders. However, as described in the discussion paper, the early planning and engagement phase does not seem substantially different than the Application Information Requirements (AIR) phase of the current EA process and is lacking much of the value of the Expert Panel proposal. The Planning Phase outlined in the Expert Panel report deliberately occurred very early in project development. It was designed to provide an opportunity for regulators and Indigenous groups to provide feedback on project design, build relationships, identify key issues of concern, co-operatively design baseline studies, and be involved in planning the project and the process. It was co-operative and consensus-driven with regulatory authorities taking a leading role in guiding the process and ensuring fairness. It provided roles for both community representatives and technical experts. In contrast, the planning phase outlined in the discussion paper is led by the proponent. It does not allow for project planning, only planning of the EA process. This negates one of the most important features of the Panel s proposed planning phase: the ability for indigenous groups, regulators, and stakeholders to have meaningful input on the project itself in order to proactively prevent conflicts over impacts. With the exception of the timeline for the assessment, the topics proposed for the planning phase outlined in the discussion paper are the same ones currently developed as part of the AIR phase. It is unlikely that this rebranding of the AIR phase will improve outcomes. For the Early Planning and Engagement Phase to be meaningful it must: Provide space for meaningful input on project design, therefore it must take place before project designs, including infrastructure locations, are largely finalized by the proponent; Include collaborative development and undertaking of baseline studies, and not take place after studies have been already undertaken; 2

5 Feature federal regulatory bodies, such as an Impact Assessment Commission or Canadian Environmental Assessment Agency, in a leadership role; and Involve early, meaningful engagement and relationship building with Indigenous peoples. TRANSPARENCY AND PUBLIC PARTICIPATION As part of SFC s mandate SFC has biologists on staff that deal with technical aspects of environmental assessment processes on behalf of member Nations. Thus SFC s perspective on transparency and public participation has been informed from our experiences in taking part in multiple technical EA working groups. Although technical working groups and public EA participation can be considered separate topics; many of the problems SFC has encountered with technical working groups apply to the transparency and public participation theme. SFC has multiple examples of technical working experiences truly lacking transparency and up front discussions on how various EA regulators have made key decisions and why. For instance throughout the Pacific NorthWest (PNW) LNG EA it was never transparently explained why the best available science submitted was not fully considered in the EA decision making process by regulators, which ultimately lead to PNW LNG receiving a positive environmental assessment certificate decision. To truly bring transparency and meaningful public participation back into EA/impact assessment(ia) processes the Government of Canada needs to address three key factors: (1) Truly bring objective peer reviewed science back into the EA/IA decision making process on realistic timeframes that aren t driven by project proponents. (2) Transparently present all information (both scientific and non-scientific) being used by regulators to make key EA/IA decisions with adequate timeframes for both working group members and members of the public to review and provide feedback on. (3) Once key EA/IA decisions have been made by regulators provide objective and fully transparent discussions and presentations of the rationales used and why. SCIENCE, EVIDENCE, AND TRADITIONAL KNOWLEDGE The quality of the evidence used in the EA process, including both science and traditional knowledge, is of great importance to SFC. It is our experience that EAs have increasingly been challenged by Indigenous groups and stakeholders, resulting in frequent legal challenges, duelling experts, and accusations of bias and poor outcomes. SFC was created primarily to address similar issues in the Skeena Watershed, under the principle that while Indigenous groups, regulatory authorities, and stakeholder groups may not agree on the best management decision, consensus can be reached about the evidence that informs that decision. The result has been more productive conversations regarding decisionmaking, increased engagement, decreased conflict, and an increase in the quality of data collection. We believe that a similar approach, with a renewed emphasis on collaboration and good science and evidence separated from politics, will improve the EA process as well. 3

6 SFC strongly supports the Expert Panel s recommendation of a technical expert committee charged with identifying the studies needed to inform the assessment and interpreting the findings and the quality of those studies. It is important that the EA process involves consideration of not only the facts as presented by baseline studies, but also the quality of the evidence, the extent and risks created by information gaps and uncertainties, and the precautionary principle. The legislation and policies that outline the EA process must explicitly require these aspects to be considered, with the resulting decision statement outlining how they were considered and how their consideration influenced the decision. This is especially important where there is competing evidence or interpretation of evidence put forward by involved parties. SFC also strongly urges the Government of Canada to accept the recommendation of the Expert Panel to allow Indigenous peoples to provide the interpretation of their Traditional Knowledge as it relates to the EA. Traditional Knowledge is more than a collection of facts, but rather a broad, interconnected network of values, traditions, laws, and facts. Even the most well-meaning outsider cannot hope to accurately interpret the facts without the cultural framework that supports them. Without that framework, any EA process that attempts to incorporate Traditional Knowledge will fail to do so meaningfully. The most effective solution is to allow the community already in possession of the framework to interpret the facts appropriately. IMPACT ASSESSMENT SFC supports the proposal put forth in the discussion paper to have all federal assessments led by a single federal assessment agency, with input from lifecycle regulators. The proposal is efficient and allows for expertise in leading EAs and engagement with Indigenous groups to be consolidated in a single regulatory body. SFC also supports the proposal to broaden the scope of the assessment to include social, health, and economic considerations; however, SFC believes that this broadening must be coupled with the Expert Panel s recommendation to switch to a sustainability test over the significant impact test. The significant impact test would bring Canada s EA into line with modern international EA best practices. It would provide space within the EA process to verify the accuracy of proponent claims of project benefits to society and the economy, as well as for imposing conditions that provide Canadians guarantees of those benefits. Most importantly, EAs are already undertaken with the understanding that regulators will informally balance the benefits and impacts of a project. The current significant impact test creates an atmosphere where parties in favour of the project attempt to minimize the perception of potential impacts or (re)interpret the definition of significant so that they can claim that there are no significant impacts. Regulators make informal, internal decisions about the balance of positive and negative impacts and politicians make statements about the necessity of projects regardless of impacts due to expected benefits, but formally benefits are not taken into account and so no conversation can take place around them. The sustainability test acknowledges that all projects will have impacts, but that the project s benefits may make the impacts justifiable. It is a more honest approach to project assessments, and one 4

7 that allows for Indigenous peoples to have real discussions about what proposed projects will mean for Indigenous communities. Without such discussions, true consultation and reconciliation cannot occur. PARTNERING WITH INDIGENOUS PEOPLES The discussion paper reflects an understanding of the need for Indigenous reconciliation that SFC strongly supports. SFC hopes that this restructuring of the EA process will be a step towards reconciliation between Indigenous peoples and the Government of Canada. The discussion paper proposes several changes that would be beneficial to that goal: early and broad bilateral engagement, the sharing of authority and responsibility with Indigenous groups, space for Indigenous-led EAs, capacity building, and greater participation. Unfortunately, we do not see the proposed process in the discussion paper as being sufficient to reach the goal of reconciliation. EA involves making decisions about what is going to happen on the land, and how. The expression of Aboriginal title in the Delgamuukw decision reminds us of the authority of Indigenous Nations when it comes to decisions about land and resources: First, Aboriginal title encompasses the right to exclusive use and occupation of land; second, aboriginal title encompasses the right to choose to what uses land can be put, subject to the ultimate limit that those uses cannot destroy the ability of the land to sustain future generations of aboriginal peoples; and third, the lands held pursuant to aboriginal title have an inescapable economic component. 4 (para. 166, emphasis added) Canadian law requires the Crown to consult and where necessary, accommodate, Indigenous peoples where decisions are being made that have the potential to impact our Aboriginal title and rights. 5 Yet the EA process is often the only avenue provided by the Crown to hear what First Nations have to say about a project, and the current process is not equipped to deal with issues of Aboriginal title and rights and how decisions about a particular project may work for or against reconciliation. The process proposed in the discussion paper is not fully equipped to deal with these issues either. Reconciliation is certainly not achieved when Indigenous communities protest against development projects in our territories that are approved through a process we feel does not hear us or give appropriate weight to our concerns. To be able to arrive at decisions that are supported by Indigenous communities, the process of decisionmaking around EAs needs to change in many ways. Increased transparency and using scientific, evidence-based processes to arrive at decisions will assist in this goal. However, the recognition of Indigenous peoples as decision-makers over questions of what is going to happen on our Nations territory is an essential step forward that must occur. This direction is supported by Canada s commitment to implement UNDRIP, as well as by decisions of our own Canadian courts. 4 Delgamuukw v. British Columbia [1997] 3 SCR Haida Nation v. British Columbia (Minister of Forests) [2004] SCR 511 5

8 The duty to consult is one model of EA decision making; a consent based model is another. While the duty to consult is operative on most development projects, moving to a consent based model of decision-making is clearly a better practice and does a better job at providing the certainty that is usually desired by all parties. The duty to consult is based on the assumption that the Crown is the sole decision-maker. This is out of step with the Supreme Court of Canada s perspective in the Tsilhqot in decision, from which we learned that Crown approvals of projects can be cancelled when Aboriginal title is later proven if consent to proceed was not provided by the appropriate Indigenous peoples. 6 So if title is likely to exist, as is the case in much of the territories of SFC s signatory Nations, then consent is the practical, honourable, and reconciliation-based way forward. Given that significant legal challenges can often be brought by Indigenous peoples even prior to proof of title, the Crown and proponents are well-advised to initiate a consent model early in the EA process. This will involve collaborative decision-making that welcomes Indigenous peoples as equal partners in the decision-making process. Both parties, the Crown and the Indigenous Nation, come to the table as governments. Where the Indigenous party involved has implemented its own EA process based on its own legal order, harmonization of processes will be required. This was recognized by the Expert Panel, who recommended a consent model with a reasonableness test. The Expert Panel also recognized the necessity of not following a one-size-fits-all framework for collaboration and consent with Indigenous groups. The cultural differences between Indigenous groups in Canada can be large, as can the differences in current capacities and circumstances of Indigenous groups. No single framework can hope to provide meaningful and respectful consent for all Indigenous peoples, and the relationship between the Government of Canada and Indigenous groups in the EA context must be responsive to the differences in traditions, laws, cultures, and present circumstances to be effective in moving towards reconciliation. The Expert Panel s recommendations in response to issues of long-term capacity for Indigenous groups were unfortunately not entirely reflected in the discussion paper. As outlined by the Expert Panel, the challenging timelines and large volume of relevant information to be reviewed make participating in EAs very challenging for many Indigenous groups. Meaningful participation in an EA requires staff with a high level of technical knowledge, knowledge of the community and local environment, and ample available time. It is not something that can be done by employees with already full task loads. Due to the difficulty in procuring funding between EAs, the lack of sufficient participant funding available during EAs, and the variable and inconsistent nature of other government funding, many Indigenous groups have difficulty finding capacity to take part in EAs. Steps must be taken to provide stable funding sources for Indigenous groups to hire, train, and retain employees who can represent us in the EA process. Any attempt to work towards reconciliation in the context of the EA process will fail if these issues are not addressed and Indigenous groups continue to be unable to fully take part. 6 Tsilhqot in Nation v. British Columbia [2014] 2 SCR 257 6

9 Our vision is that the SFC signatory Nations will be collaborative decision-makers for the EA of any projects proposed within our territories. Free, prior, and informed consent will be the guideposts for the process by which each Nation, in its own way, will make decisions about such projects. This level of involvement with the EA process will help to increase its legitimacy, which in turn will lead to increased acceptance of EA decisions, even when people disagree on what the outcome should be. COOPERATION WITH JURISDICTIONS As far as EA/IA s are concerned the main regulatory jurisdictions SFC has dealt with (outside of SFC s member Nations) include the British Columbia Environmental Assessment Office (BCEAO) and the Canadian Environmental Assessment Office (CEAA) and other Government of Canada departments (e.g. DFO, Environment Canada, NRCan). SFC s experience with the province of British Columbia through the BCEAO has been that their approach to EA/IA is less scientifically rigorous than desired, often favouring project proponents and their consultants in the name of economic development at the expense of objective science and environmental protection. Unfortunately, in recent years with the advent of substituted EAs (a process in BC whereby the BCEAO process is substituted for the federal one) the Government of Canada s CEAA EA process has declined in scientific calibre as well. Ultimately, SFC understands and appreciates that any given EA/IA process cannot go on indefinitely, thus one of the premises of increasing cooperation between jurisdictions is to maximize EA/IA efficiencies, avoiding duplication and making key decisions on relatively realistic timeframes. The efficiency potentially gained from cooperation within jurisdictions must not come at the expense of scientific rigour and truly meaningful and effective environmental protections and remediations (if unavoidable). To make exercises of cooperation within jurisdictions truly effective, any potential environmental impacts must be evaluated completely separate from any potential economic gains arising from project execution (whether said economic gains are small or large). WHAT HAS BEEN MISSED CONFLICTS OF INTEREST It is disappointing that the discussion paper does not propose any changes to address the issue of the disproportionate role proponents and their consultants have on the EA process. There is a persistent, systematic issue with the quality, interpretation, transparency, and public trust in the information gathered by proponents to support their impact statements which was brought up repeatedly during feedback to the Expert Panel. In the current system, environmental consultants have incentive to tailor the information presented in their impact statements to find favourable results for the project, regardless of whether or not those results are accurate or complete. There are few mechanisms for holding proponents and consultants accountable for the quality of their work or the accuracy of their predictions. Ways to address this could include greater oversight by professional bodies, First Nations and government agency control of 7

10 consultant hiring and firing, or moving the task of collecting and interpreting data to federal agencies and Indigenous groups rather than consultants. The Expert Panel proposed to address this through a Planning Phase in which studies would be collaboratively designed with input from regulators and Indigenous groups, the retention of a committee of technical experts to provide third party oversight, and most importantly through having government experts and consultants retained by the government interpret the results to produce the impact statement. Ultimately organizations like DFO have to get back into the business of conducting meaningful field work and environmental monitoring and compliance activities; not downloading these responsibilities to project proponents and their environmental consultants. The reliance on peer review proposed in the discussion paper is unlikely to be effective. True peer review, by independent scientists rather than government experts, is time consuming and unlikely to be undertaken within time frames that are acceptable to industry. Where it can be undertaken, it should be, and peer reviewed data given higher consideration than non-peer reviewed, but additional processes should be in place to deal with data that cannot be peer reviewed. Having government experts review the data and the interpretations provided by the proponent in the impact statement is how the process currently works, limiting government review to this passive position has been a failure that will not be remedied without the government taking a more active leadership role. Allowing proponents to control the flow of information opens the system up to abuses that may include designing studies to produce desired results, withholding information and avoiding studies that could damage the project s assessment, or summarizing and/or editing datasets before they are provided to the regulator. FAIRNESS TEST SFC supports the Expert Panel s recommendation for all project assessments to include an examination of whether benefits and costs of projects are shared fairly. A fairness test would support the development of strong, sustainable, healthy communities by providing support to local economies. With so many resource projects being located in remote areas surrounded by small communities, there has been a persistent problem of projects locating their offices in distant city centers and bringing in the majority of their workers from elsewhere in Canada and internationally. The result is that local communities absorb the risks and social and environmental damages while employment and procurement opportunities largely go to those who are not local. This has been a large driver of the trend of local resistance to projects incorrectly attributed to NIMBYism (Not-In-My-Backyard). Without attempts to fairly distribute costs and benefits of projects, local resistance can be expected to continue to be a major issue. The Gender-Based Analysis Plus assessment proposed in the discussion paper does not address this issue. While the discussion paper proposed its use to better understand the impacts on various groups, there is no requirement to balance costs and benefits for particular groups. And importantly, examining the impacts on the basis of sex, gender, race, ethnicity, religion, age, and mental or physical disability (discussion paper, page 13) overlooks the importance of nuance within those broad categories. For SFC member Nations, the geography of impacts heavily influences who feels those 8

11 impacts. Each Nation is comprised of multiple Clans and House groups whose rights are tied to particular areas of the larger Nation s territory. Traditional laws restrict the ability of one House to use land and resources belonging to another. A project located on one House group s traditional territory could drastically decrease that House group s ability to feed themselves, undertake cultural practices, and fulfill their social responsibilities as a result of environmental impacts. Such an impoverished House is reliant on the generosity of neighbouring Houses to meet the basic needs of its members. Benefits accrued by other House groups or other Nations might be said to result in a net benefit when ethnicity is the only consideration, but still result in an unfair distribution of costs and benefits. The Expert Panel s fairness test has the flexibility to address this issue while the Gender-Based Analysis Plus assessment does not. CONCLUSION The discussion paper outlined some positive changes to the EA process. Unfortunately, many of the most significant and most important changes proposed by the Expert Panel were not reflected in the discussion paper. It is our recommendation that the Government of Canada review the Expert Panel report and submissions again and adopt more of the substantial changes outlined. In general, the new EA system must prioritize: A proactive role for the federal government, including the use of an early and meaningful planning phase and regional and strategic assessments; Robust, quantitative cumulative effects assessments; A role for indigenous people that includes early and meaningful consent-focused engagement and an active role in interpreting and guiding EAs in which we participate as governments; Incorporation of tests of sustainability and fairness; High standards and transparent interpretation of information used in EAs; and Fair distribution of costs and benefits. 9