Environmental Regulatory Reviews Update: Canada’s process for reviews still falling short

There are four national reviews currently underway looking at reforms to Canada’s federal environmental legislation, and each of them continue to be hampered by significant process problems. These process problems are more than a surface concern – they may critically undermine the reviews themselves unless steps are taken to amend the process. This is critically important for Indigenous peoples because the regulatory and environmental schemes in place after the Omnibus Bill amendments of 2012 are badly in need of an overhaul.

In June 2016, Canada announced plans for Indigenous engagement on four separate reviews of Environmental and Regulatory Processes:

• Expert Panel to review of federal environmental assessment processes (including CEAA, 2012)
• Expert Panel on the “modernization” of the National Energy Board
• Parliamentary Committee review of the Fisheries Act
• Parliamentary Committee review of Navigation Protection Act.

(see the end of this post for a quick glance at timelines).

We have written about the environmental assessment Expert Panel and the process problems related to that process in a previous blogpost. This post focuses on the three other review processes. Sadly, these processes continued to be hampered by the same process problems we raised about the EA Expert Panel:

1. lack of clear communication about the process to Indigenous participants

2. failure of responsible funding agencies to provide adequate and timely funding for Indigenous participation.

These processes have tremendous potential (if done right). These reviews could not only undo the serious harm done by the 2012 amendments to environmental protection and the protection of Indigenous rights and interests, but also create regulatory schemes that benefit everyone through better protection for Indigenous rights and interests. Unfortunately, the federal government’s approach so far is disorganized, does not indicate an understanding of the capacity challenges of Indigenous communities, and does not seem designed to actually promote meaningful engagement of Indigenous communities and representative groups in these reviews.

For the Fisheries Act and the Navigation Protection Act, several things need to happen:

• As with the EA Panel, funding delays need to be addressed immediately. There cannot be adequate Indigenous engagement without timely and robust funding.

• The role of Indigenous consultation needs to be clarified and made real. It can’t just be – “send us your thoughts and we’ll consider it”. There has to be some process to ensure Indigenous perspectives actual matter in the process. Having an outside body involved is an important step in that process, but there may not be enough resources currently for a proper independent review.

• Timelines needs to be reasonable. Canada can’t drop the ball on funding and communication about process and then demand responses in very short unreasonable timelines.

Clarity and proper timing of funding is critical for Indigenous communities to be able to engage properly. Indigenous communities cannot properly consult with community members about these issues without funding and without adequate time. Full stop. If you don’t have a process that allows for that type of consultation, then you don’t have a meaningful process.

We will look briefly at each of the reviews in turn.

Review of the Fisheries Act

The overarching problem is that the scope of the review and the level of Indigenous involvement contemplated by Canada appear to be far below what is necessary. The current Fisheries Act needs a massive overhaul and the level of Indigenous engagement needs to reflect the scope of problem.

The amendments to Fisheries Act in 2012 significantly weakened the protection for fish and fish habitat in Canada (see our 2012 analysis here). In practice, these changes and the policy shifts that accompanied them have been devastating. Professor Martin Olszynski studied the impacts of the 2012 reforms and found that the results :

…suggest the further erosion of an already deeply flawed regulatory regime and the near-total abdication of responsibility for the protection of fish habitat by the federal government over the past decade.

Part of the problem is that we just don’t know how much damage has been done because one of the big impacts of the changes was that Department of Fisheries and Oceans (DFO) effectively stopped collecting data on activities that may have harmed fish habitat in wide swaths of the country.

From what Indigenous communities and organizations have been able to gather, Canada is proposing to engage Indigenous peoples in three ways:

• direct submissions to the Standing Committee of Fisheries and Oceans (FOPO), either in person or in writing (written submissions are due November 30, 2016)

• DFO direct engagement with Indigenous groups, which DFO will the report back to the Standing Committee

• DFO’s consultation website for the general public (www.letstalkfishhabitat.ca)

Given how critical water and fish are to many Indigenous communities, the proposed review process is not going to adequately engage Indigenous peoples about both the negative impacts of the previous changes and what changes to the Fisheries Act should be considered.

The key problems are:

• It is not clear the Standing Committee understands the depth of the input that is required (although the Committee did recently extend the end-date of the Review and added four additional Standing Committee meetings).

• Despite the deadline of November 30, 2016 for written submissions, and despite repeated requests from Indigenous communities, DFO has been very slow to communicate decisions about funding participation. Many communities have still not heard about funding. Funding decisions of which we are aware only granted a small fraction of the funding requested. As with the EA Expert Panel, lack of certainty about funding is a major barrier to the meaningful participation of Indigenous groups. Communities and representative organizations who receive short notice of funding approvals do not have sufficient time to prepare submissions, and in the case of Indigenous participants, do not have sufficient time for approval of those submissions by their Indigenous governments or to consult with their own communities.

• DFO’s plans for “engagement” are vague and unclear. Which groups will be consulted? What will that process look like exactly? Other than “fall 2016” when will initial consultation happen? It does not appear that any substantive ‘engagement’ has even commenced, although we are soon past the “fall 2016” deadline for this to happen.

• The approach of having DFO summarize to the Standing Committee all the collective views of Indigenous groups is not appropriate without further safeguards. It is inappropriate for DFO to purport to itself represent the views of Indigenous communities as it is neither the Aboriginal rights holder, nor does it have a good record of respecting Aboriginal rights. For a recent example of the poor DFO track record, see the ongoing struggles of the Nuu-chah-nulth Nations to get DFO to respect Supreme Court of Canada decisions affirming Nuu-chah-nulth fishing rights.

While DFO has indicated that there will be an additional round of “engagement”, it is very concerning that there is not more time and resources being focused on the front end of the consultation. For instance, given DFO’s long history of mismanagement of the fisheries, enforcement issues, and failure to respect Indigenous rights and interests, one of the issues that should be dealt with in a revised Fisheries Act is a regulatory regime that makes space for Indigenous jurisdiction over and involvement in the management of fisheries. This would admittedly be a big shift, and so this needs to be considered up front.

What also remains unclear is how the review of the Fisheries Act (as well as the Navigation Protection Act review) will fit in with the newly announced Ocean’s Protection Plan which promises to seek out Indigenous peoples for their advice and participation in a number of areas.

Review of the Navigation Protection Act

The Navigation Protection Act is also a key piece of environmental regulation that was dramatically pared back following the 2012 amendments. The primary change was the reduction in the number of waterways covered  by the Act (and therefore potentially subject to protection and review), to just 67 rivers, 97 lakes, and three oceans from about 2.5 million protected waterways. The impact of this when combined with the Fisheries Act changes is significant.

Canada contemplates limited engagement with Indigenous communities. Indigenous communities and organizations will be able to make written submissions to the Standing Committee on Transport, Infrastructure and Communities prior to November 30, 2016.

Transport Canada’s Indigenous engagement appears to be simply that it will “hear views” from Indigenous communities, and that comments received directly by Transport Canada will be used to “inform” Transport Canada’s response to the Standing Committee’s recommendations.  These processes fall far short of the legal standard for adequate Aboriginal consultation.

As it relates to funding, Transport Canada also has been slow to make funding decisions and will only say it is processing decisions on funding as quickly as possible.

Expert Panel on the NEB Modernization

The Expert Panel for the review of the National Energy Board was appointed this week, as so how exactly this process will roll out is still largely unknown. The deadline for written submissions to the Panel is February 17, 2017.

While the Panel’s mandate for review of the NEB is “targeted”, the terms of reference do suggest some wriggle room to consider the mandate of the NEB, as well as how the NEB will engage with and consider Indigenous rights and interests. The Panel members appointed show promise that the issues of Indigenous peoples will be taken seriously. As do the comments of Minister Carr about the importance of this process resolving the problems with the NEB and consultation and accommodation of Indigenous peoples.

We hope that the NEB will be proactive in making sure adequate funding flows to Indigenous communities well in advance of any participation opportunities for Indigenous communities.

Recap of Deadlines

Fisheries Act Review

• Written submissions due to Standing Committee (November 30, 2016)
• Requests to appear before Standing Committee made here

Navigation Protection Act Review

• Written submissions due to Standing Committee (November 30, 2016)
• Requests to appear before Standing Committee made here

NEB Modernization Review

• Written submissions to Panel due February 17, 2017
• Panel hearings TBA

EA Expert Panel Review

• Panel sessions ongoing until early December
• Written submissions to Panel due December 23, 2016 (extended from original December 18, 2016 due date)

By Matt McPherson