What if Canada held coast-to-coast environmental review hearings and nobody came?

Aboriginal Law | Consultation and Accommodation | Environmental Assessment | Resources and Environment | UNDRIP

The Environmental Assessment Expert Panel that the Government of Canada assembled to independently review Canada’s environmental assessment laws has now begun public hearings. The hearings are being fast-tracked to accommodate the government’s desire to introduce amended federal environment legislation next year.  (See OKT’s guide to the Panel process).

Indigenous communities are beginning to sound the alarm about barriers to participation in the Expert Panel, as well as broader concerns about the government’s plans for Indigenous engagement for what comes after the Panel’s report.

Below we discuss the two overarching procedural hurdles in the existing process and suggest some solutions for how to fix things.

There are many good things in the Panel’s Indigenous Engagement Plan such as the fact that the Panel’s mandate is to look at all federal environmental processes (not just CEAA, 2012), and that the Panel is asking how (not if) the UN Declaration on the Rights of Indigenous Peoples will be implemented in federal environmental review processes. Those lofty aims are in jeopardy if the Government does not immediately address the failures of communication and the uncertainty about funding that are threatening the process.

Process Problem #1: Lack of timely communication

The Government has repeatedly failed in communicating about the big picture and the details of the process.

There remains widespread confusion among Indigenous groups about how the process will unfold from start to finish – this means both for the Expert Panel stage and the post-Panel process. Indigenous communities expect that once the Government reviews the Panel’s report, they will be consulted about the specifics of any draft legislation. However, at this stage it is not clear how, or even if, that will happen.

The Panel’s Indigenous Engagement Plan is very promising, but it has been threatened by the Government’s timelines. As a result, the Panel hearings have been planned with extreme haste, and the lack of information about funding means that many Indigenous communities are confused and frustrated, and may not participate in the Panel review.

The Panel hearings across the country are being crammed into a tiny window from mid-September to mid-December. Canada has denied requests for extensions of time. This means little notice for preparation, which is exacerbated by lack of participation funding commitments (discussed below).

Communication about the Panel process has been inadequate and far too slow. There is a huge amount of information for people to take in about the Panel process (along with the reviews of the National Energy Board Act, the Fisheries Act, and the Navigable Waters Act). That information has not been communicated clearly and simply or in a timely way. This has greatly contributed to the confusion.

Process Problem #2: Funding uncertainty

The uncertainty about funding and the timing of available funding is a showstopper.

The first Panel sessions, held in Saskatoon and Edmonton, were poorly attended by all accounts.  Indigenous communities, without answers on participation funding, were unable to prepare or attend. The pattern of lack of Indigenous participation promises to hold, however, as the Panel continues its cross-country hearings, with no answers on participant funding in place in time for most Indigenous communities to properly participate.

While the Canadian Environmental Assessment Agency (CEAA) made funding available for Indigenous groups to participate in the Expert Panel, its timeframe for submitting funding applications was not well publicized and was extremely truncated. The deadline passed before many communities were even aware of the funding program or able to submit funding applications.

Indigenous groups report being told that the CEAA will not fund any activities undertaken before funding agreements are actually signed, despite the fact that CEAA’s current approach appears to be only to announce funding decisions a week before the Panel sessions in which the Indigenous funding applicant will appear. This means that Indigenous groups with hearings in their region scheduled prior to funding approval are expected to take on the significant costs of participating in the review with no guarantee that they will be compensated for those costs. This is a risk many Indigenous communities – often with minimal financial ability to raise funds from other sources for this type of process – cannot afford to take.

Communities that are located significant distances from the nearest public hearing location often cannot afford to fly community members to the hearings even if they are awarded the limited funding being offered.

A great opportunity that may still be realized

The Expert Panel offers a critical opportunity for the public to shape Canada’s most important environmental laws. There is widespread acknowledgement that the 2012 reforms to federal environmental legislation were ill-conceived and not only seriously undermined the efficacy of environmental review processes but ultimately led to loss of public confidence in the environmental review process and resulting delays in project review. A key shortcoming of the 2012 legislative reform process was the extreme haste and lack of proper public and Indigenous engagement that ultimately undermined the legitimacy of the environmental legislation reforms.

It would be a shame to repeat the history that led to the current legislative problems due to the previously rushed and inadequate review process, and to squander the current opportunity to ensure a proper review of the reforms so critically needed for CEAA and other federal environmental legislation.  Moreover, the current process lays Canada open to challenges from Indigenous groups who can rightly say – at this time and with the process as it is currently structured – that the CEAA review process does not meet legal standards for proper Aboriginal consultation (and may be subject to the same type arguments made by the Mikisew Cree in their successful legal challenge against Canada regarding the 2012 reforms).

How Canada could fix things: four quick fixes

1. Canada should release a big-picture roadmap for what will happen from now until legislation is introduced, and how Indigenous engagement will occur

  • Being clear about what is happening and what will happen next will go a long way to reducing confusion and helping Indigenous groups be prepared for the both their submissions to the Panel and the post-Panel engagement.
  • If the Expert Panel is pre-consultation, then the Minister needs to spell out the actual consultation process after the Panel report is released, so that groups can be ready.

2. The timeframe needs to be lengthened for the Expert Panel review.

  • This doesn’t mean more hearings, but rather that they get spread out over a somewhat longer time frame.
  • Canada will almost certainly have a hard deadline for when the draft legislation has to be introduced. There will be wiggle room built into that schedule. Having dropped the ball, Canada needs to give up some of its own wiggle room to make things right.

3. The first locations for the Panel sessions will need to be revisited and Indigenous groups provided with additional funding for that purpose

4. Improve the approach to funding

  • Funding applications need to be approved for Indigenous groups ASAP. Canada needs to find the money to get things moving somehow.
  • Funding needs to be increased to cover travel costs so groups can actually get to the sessions and have capacity to participate.
  • Funding must be made available to cover reasonable work done before the funding agreements are signed.
  • Indigenous groups should be given lots of advance notice about the funding available and the rules for the post-Panel Indigenous engagement.

The Expert Panel and the process for getting to new legislation are positive steps, but immediate attention is needed to make sure the promise of the process can be realized. The review of federal environmental processes, if done right, could be a once in a lifetime opportunity to engage with Indigenous communities to create a system that respects Indigenous rights, perspectives, and jurisdiction.

The Expert Panel begins public hearings on the East Coast in early October. The full schedule can be found on the “Upcoming Events” section of the Expert Panel’s main webpage.

OKT has prepared a quick guide on the Expert Panel processes to help Indigenous communities and organizations navigate the process.

By Matt McPherson and Michael McClurg