CARC is a leading advocate for a full, Federal environmental assessment process. For over 40 years CARC has lead the way toward forcing governments to implement processes that highlight the environmental effects from development. CARC strongly believes in using up to date, real data that is useful, scientific and comprehensive. While governments, past and present have usually done these assessments at different stages of development we strongly believe assessment must happen before money is spent.
FEB. 9, 2018 UPDATE ON NEW DRAFT LEGISLATION: BILL C-69 An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigation Protection Act and to make consequential amendments to other Acts
The following is the CARC submission to the House of Commons Standing Committee on Environment and Sustainable Development Regarding Bill C69:
In general, the Bill reflects several of the recommendations made in our submission to the Environmental and Regulatory Reviews Discussion Paper in August 2017, which is attached for your information. It has introduced changes that could allow communities to have a more meaningful say about projects that affect them and introduces the concept of cumulative impacts of natural resource development. That being said, it does not reflect several of the concerns outlined in our earlier submission which we believe leaves the Bill too open to interpretation. Cumulative impacts In our submission to the Environmental and Regulatory Reviews Discussion Paper in August 2017, we fully support the development of regional environmental assessments: those that consider the cumulative effects of all developments in a given region.
As noted in our submission, the consideration of cumulative impacts has been a primary consideration of CARC since our formation. We believe that having baseline “big-picture” data in a given area before doing project-oriented assessments in that area is a very good idea. Moreover, we recommended that consideration be given toward using one or more individual land claims in the Canadian north as pilot projects for implementing integrated regional assessments of cumulative impacts, in full partnership with the respective first nation(s), to begin partnering with Indigenous peoples, a desire clearly outlined in the Discussion Paper.
We hoped that Bill C-69 would be written in such a way to ensure that the federal government will lead or develop partnerships with other jurisdictions to carry out regional assessments throughout Canada. We recommended that the Canadian Government be involved in every regional assessment to support the many cross boundary wildlife species such as marine mammals, fish, migratory birds and caribou. We further noted that the federal government may be the only jurisdiction with the funds available to carry out regional assessments in the north.
Based on our review of Section’s 92 through 94 of Bill C-69, we remain concerned that the approaches outlined therein will not lead to a true consideration of cumulative impacts. The Sections outline that the Minister “may” carry out regional assessments on federal lands and “may” enter into agreements with other jurisdictions to do so in an area comprised of lands under federal jurisdiction and outside federal jurisdiction, if she or he believes a regional assessment is required. There is therefore no guarantee within Bill C-69 that regional assessments will be carried out as we think necessary. We believe that the Bill should be reworded to call for the mandatory requirement of regional assessments. Finally, we note that the term “regional assessment” is not defined in the draft legislation. We recommend that it be done in manner that outlines these regions as bio-regions or in another way to ensure that these regions are based on natural systems, not just politically constructed boundaries.
Broadening the scope of assessments
We note that Bill C-69 now contains language to the effect that the economic well being and social and health effects of the local public are considered. In principle we agree that assessments of proposed development projects should take these concerns into consideration. We remain concerned however that the Bill contains no language to ensure that identified economic benefits of a proposed project not be used to justify serious environmental impacts.
We are concerned that consideration of the economic well being of the public in the process could be phrased and interpreted to mean that if a project has substantive economic benefits that these benefits could be used in a net-sum-gain approach to justify negative environmental impacts.
We do not believe that the Bill should be used to give the federal government broad discretion to trade environmental health for short-term economic and political gains. We believe that Bill C-69 should contain wording that specifically states that economic gains not be allowed to justify, for example, a development that pushes wildlife species towards extinction, particularly if the species, like caribou, provides northern peoples with some level of
food security. Moreover, the Bill should contain language to ensure that the assessment of any proposed project must consider and protect the critical habitat of these species.
Early engagement by interested parties
In our submission to the Environmental and Regulatory Reviews Discussion Paper in August 2017, we were pleased to note the federal government’s commitment to public participation in the assessment of proposed projects. We have noted that throughout Bill C-69 there is wording to this effect.
We are also pleased to see the introduction in Bill C-69 of a new “planning phase” before assessments begin. This should allow organizations like CARC and other members of civil society to participate earlier in assessment processes, to raise early concerns regarding certain developments and provide information on how we would like to participate in a given assessment process.
We remain concerned, however, that the Bill does not include wording to ensure public participation in assessment processed before a proponent has already invested significant time and capital on a proposed project. It is our perception that such projects are often seen as a “done deal” once this substantial investment has been made. Moreover, we further recommend that the Bill require that opportunities for public participation occur at all important stages of a project assessment. In this way the public can have the ability to influence decisions. Furthermore, we recommend that the Bill contain wording to allow the public to appeal a decision. This is an important legal means that ensures that the reason for the existence of the law is met and that the proponents of a project have fulfilled their legal duties.
Finally, we have noted that Section 75 allows the Minister and the Agency to make decisions regarding participant funding programs but that there is not a solid commitment to the provision of participant funding. We wish to reiterate that most non-government environmental organizations are understaffed and underfunded and without a useful amount of intervenor/participant funding, it is difficult for organizations like CARC to provide any degree of meaningful input. We encourage you to ensure the wording in the Bill reflects this reality and commits to funding pubic participation.
Science, evidence and Indigenous knowledge
We note that Bill C-69 makes the proponent of a project responsible for collecting the information and evidence required to allow for the best scientific evaluation of an assessment of a proposed project and for demonstrating how environmental impacts will be minimized. We are also very pleased to note the Bill’s requirement for cooperation with Indigenous peoples and consideration and respect for Indigenous peoples’ constitutional rights.
We further note that Section’s 22(g) and 119 allow for the incorporation of traditional ecological knowledge (TEK) into the assessment of proposed projects. As mentioned in our earlier submission, we believe strongly that the Bill must allow for the integration of western science and TEK in a mutually beneficial way. We recommend that the Bill be reworded to require that assessments and decisions regarding proposed projects and
regional assessments be “based on” that knowledge and science.
The list of projects that the Bill would be used to assess
Finally, we are concerned about the required list of “designated” types of projects to be connected to the Bill. We do not think that this is the way that the act should function. We reiterate that we believe that the federal assessment process should be used to assess all projects, regardless of type and however big or small, that might have an impact on species that cross jurisdictional boundaries. This should not just include marine species or migratory birds but also migratory mammals like caribou. Caribou are in serious decline, are the last free wide roaming ungulates in North America and represent an important food source for Indigenous people. As such, any projects that have a potential impact on their critical habitat should be included within the federal assessment process.
The following is our original submission made by CARC to the Canadian Government as they review the federal environmental assessment process, August 2017:
The Canadian Arctic Resources Committee is Canada’s oldest citizen’s organization dedicated to environmental sustainability in the Arctic. We have a long history in commenting on environmental assessments in the Canadian North and we offer the following comments on the Discussion Paper. In general, the document has some good principles and steps forward. We are concerned, however, that it contains some “streamlining” steps that may compromise environmental protection.
We fully support the development of “regional” environmental assessments: those that consider the cumulative effects of all developments in a given region. The consideration of cumulative impacts has been a primary consideration of CARC since our formation. Having baseline “big-picture” data in a given area before doing project-oriented assessments in that area is a very good idea. Moreover, we believe that the federal government should ensure that these are carried out throughout Canada, including the north, and that your revision of the federal process should reflect this. The Canadian Government, if not leading a regional assessment, should always be there in support of the many cross boundary wildlife species such as marine mammals, fish, migratory birds and caribou. And the truth may be that you are the only jurisdiction with the funds available to carry out regional assessments in the north.
From this document, it is not clear what the tangible elements are that will serve to implement true consideration of cumulative impacts. The target is certainly desirable, but we worry that the suggested approaches will not necessarily lead to true consideration of cumulative impacts.
We recommend that consideration be given toward using one or more individual land claims in the Canadian north as pilot projects for implementing integrated regional assessments of cumulative impacts. This would have to be done in full partnership with the respective first nation(s) and these areas do have coherence in regional ecology and governance structure. This would be a good way to begin partnering with Indigenous peoples, a desire clearly outlined in the document.
We fully support the Federal Government’s wish to work with other jurisdictions on environmental assessments. More comprehensive cooperation and coordination with the provinces and territories, with formal mechanisms included to achieve this, is a good idea and something the process should strive for. That being said, there needs to be assurance that this does not lead to an undue downloading of tasks onto the provinces and territories.
In principle, we agree that environmental assessments of proposed development projects should take into consideration the economic wellbeing and importantly the social and health effects of the local public.
That being said, we do not believe that economic benefits of a proposed project should be used to justify environmental impacts. We are concerned that consideration for the economic wellbeing of the public in the process could be phrased and interpreted to mean that if a project has substantive economic benefits that these benefits could be used in a net-sum-gain approach to justify environmental impacts. This is something that CARC cannot support.
A development should not be able to proceed if it continues to push wildlife species towards extinction, particularly if the species, like caribou, provides northern peoples with some level of food security. The assessment of any proposed project must consider and protect the critical habitat of these species.
We support the principles laid out on page 11 of the Discussion Paper. CARC has always fully supported the opportunity to participate in the environmental assessment of proposed projects. Moreover, we agree that providing nongovernmental organizations, and other interested parties, with the opportunity to intervene earlier in proposed developments assessment process than has traditionally happened is a good idea.
It is important for organizations like ours to be able to provide input into a process before a proponent has already invested significant time and capital on a proposed project. It is our perception that such projects are often seen as a “done deal” once this substantial investment has been made. The sooner that there is a formal avenue for the public to comment on a project, the better.
That being said, most non-government environmental organizations are understaffed and underfunded and without the environmental assessment process including a useful amount of intervenor/participant funding, it will still be difficult for organizations like CARC to provide any degree of meaningful input. Without this help, and perhaps for other reasons, it may be a challenge to get people involved in the early stages of a proposed development. Furthermore, a new assessment process must ensure that the early engagement of interested parties in a proposed project does not prevent continued and later involvement in the process, or preclude the involvement of ‘latecomers’ in the process.
We believe that it is important to collect and incorporate the best available science and evidence into an assessment of a proposed project and we agree that the burden of proof for demonstrating no environmental impacts is on the proponent.
We also agree that incorporating traditional ecological knowledge (TEK) into the assessment of proposed projects is important. However, there needs to be strides taken to make this is an active, rather than passive, process. We believe that the assessment processes can build on commonalities and integrate western science and TEK in a mutually beneficial way.
While we agree that a single agency approach could be useful, we need to hear more about the pros and cons of this approach before supporting the concept.
CARC believes that all the Interim Principles, as listed on page 4 of the document, are all very significant and we are pleased to see a potential commitment to them. For many years we have argued for: decisions to be based on science, traditional knowledge of Indigenous peoples and other relevant evidence; the views of the public and affected communities to be sought and considered and; Indigenous peoples to be meaningfully consulted and where appropriate, impacts on their rights and interests be accommodated. We are particularly happy with your commitment to consider upstream greenhouse gas emissions. This is a huge leap forward and speaks to CARC’s longstanding advocacy for considering cumulative environmental impacts. It will present significant logistical challenges with respect to carbon accounting, but that should not deter the government from committing to this.
We support all the Guiding Principles, listed on page 7, with the possible exception of #5. We are unsure of the repercussions of this final principle.