Elizabeth’s Response to the Environmental and Regulatory Review Discussion Paper

On Monday, August 28th, 2017 in Committees, Parliament, Statements, Uncategorized

Below you will find Elizabeth’s response to the government’s deeply disappointing and concerning discussion paper on fixing environmental and regulatory reviews. It is also available, with its original formatting, as a pdf, here.

Response to “Environmental and Regulatory Reviews: Discussion Paper”

Released June 29 – Deadline for comment August 28, 2017

From Elizabeth May, O.C., Member of Parliament for Saanich-Gulf Islands, Leader, Green Party of Canada

Submitted online to: www.discussionpaper.ca

Opportunity lost

In spring 2012, I stood shoulder to shoulder with the then leader of the third party in the House, now our Prime Minister, and a number future Ministers in the Trudeau Cabinet, voting for 24 hours straight to protest the travesty that was omnibus budget Bill C-38.

Bill C-38 ran to over 400 pages, changing over 70 laws. At the time, the opposition parties were hoping that by supporting the standing vote on my over 400 amendments at Report Stage at least some changes might be accepted.  It was the most effective all opposition party effort of the 41st Parliament to oppose devastating legislative changes of the former prime minister and his administration.  The Liberal, NDP, Green and Bloc MPs were unified in an effort to thwart the complete gutting of our environmental laws. Despite the protestations of experts and citizens alike, the bill passed without a single amendment.

That fall, a second omnibus budget bill, C-45, destroyed the Navigable Waters Protection Act (NWPA).

In 1882, the NWPA was enacted under our first prime minister, Sir John A Macdonald.  The Act protected any and all navigable waters from obstruction.  And, ‘navigable’ meant what it said; if a canoe could make its way through a watercourse, that watercourse was navigable.  A 2009 Harper omnibus bill, changed ‘navigable’ from a common sense definition to a political designation by the Minister of Transport. 

In 2012, omnibus budget Bill C-45 renamed the NWPA into the Navigation Protection Act. C-45 also moved to a list system that specifically named watercourses to be considered protected.  More than 99% of Canada’s inland waters were not listed.

Navigation is an exclusive head of power under section 91 of the Constitution.  For First Nations, Inuit and Métis, navigation of remote unnamed rivers is a constitutionally protected right.  But C-45 meant open season for bridges, dams and obstructions of all kinds.  Yet, due to the fact that navigation is an exclusive head of federal power, no provincial government can protect rights of navigation.

Fast forward five years and a wide gamut of reform options lay in front of the current Trudeau administration. The discussion paper sets the government’s path to rewriting the laws Harper gutted, repealed or replaced in 2012, albeit slimly.

Instead of following the previous government’s focused approach – an even laser-like focus for destroying environmental laws – the new Liberal government took a cumbersome approach to their promised restoration of environmental protections. It undertook four different, but somewhat over-lapping, consultation exercises. The two most robust were well-funded expert panels on Environmental Assessment and on the National Energy Board.  For the Fisheries Act and Navigable Waters Protection Act (re-named the ‘Navigation Protection Act’), the reviews were undertaken by their respective parliamentary committees.  I have provided written briefs to all committees and panels and, unsuccessfully, attempted to appear before them. 

Somehow, despite the excellent work by the Environmental Assessment and National Energy Board Expert Panels, and the Parliamentary Committee on Fisheries and Oceans, the Trudeau administration appears prepared to backtrack on its 2015 election promises.

We are now in the 5th round of consultations on the legal and regulatory mechanisms discussed in this discussion paper, not including the comment periods that were occasionally placed on each consultation document. “Environmental and Regulatory Reviews: Discussion Paper” responds to all four of the streams of recommendations coming from two expert panels and two parliamentary committees. Given the immense quantity of material covered, the two month timeline for comments is unacceptably brief.

With this document, things have gone from hopeful to very worrying indeed.  The title of this 23 page discussion document is misleading.  It is far more than a discussion of environmental and regulatory reviews.  It deals with all of the changes discussed above – including habitat protection in the Fisheries Act, the definition of ‘navigable’ for our inland waters, as well as the review processes. 

Having had hundreds of pages of detailed suggestions generated by the two expert panels, it is challenging to analyse the new discussion paper. It is heavy on graphics and arrows and bullet points, but provides no comprehensive response to the multi-million dollar efforts commissioned by this government.

Furthermore, it was released quietly at the end of June – with a deadline of August 28, 2017.  It appears inevitable that it will receive little attention, especially since it is drafted to read as though the consultative panels’ recommended reforms are being accepted. But on key issues, the changes wrought by Harper in 2012 will remain in place.

The discussion paper points out that the various consultative bodies have received input from over 664 in-person witnesses, and 1,710 written submissions. What is so concerning is that the discussion paper does not reflect or comment upon the expert panel recommendations. Instead, it speaks in deeply ambiguous generalities. Yes, it is a discussion paper and thus requires broad strokes, but we are two years into the tenure of this administration, millions of dollars have been spent on a nearly unprecedented outreach and voters, as well as interested stakeholders and policy makers, can, and should, expect more from this government.

In this submission, I attempt to do what the government should have done: set out the recommendations of the work the government itself commissioned and consider how they have been reflected in this document. This review is tabulated at the close of my submission.  I have not included the recommendations of the Transport Committee as they are not the product of an adequate review. I will explain and comment on the report’s flaws.  I urge the government to ignore the recommendations from the Transport Committee.

For each of the recommendations from the expert panels and Fisheries Committee, I have looked through the discussion paper to find a corollary. Where parts of a recommendation have been adopted, I deem it a ‘partial’ completion. Where no recommendation can be found, or its corollary wholly insufficient, I have marked an ‘incomplete’.

The majority of the consultative bodies the government commissioned to explore this topic over the past two years have done extraordinary work. They have made a number of very specific recommendations with respect to changes required to our Environmental Assessment regulatory framework. My hope is that the government heeds their advice.

The bottom line for me, as a former practicing lawyer, as former chair of the Environmental Subsection of the Canadian Bar Association, and as current Member of Parliament and leader of the Green Party of Canada, is that the government owes it to Canadians to ensure that our environmental law, assessment and regulatory regime is at least as effective as it was in 2006. 

Environmental/Impact Assessment 

Canada is in desperate need of environmental regulatory reform. You do not need to look far to find evidence that Canada’s environmental laws are weak. In their submission to the Minister, a number of Professors of Environmental Law from the Universities of Calgary, British Columbia, Saskatchewan and Waterloo write “the reality on the ground is that Canada’s environmental laws are exceedingly weak in form and in their implementation.”

This was not the case prior to 2006.

Calls for deep and sustained reform are clear, meaningful and urgent. The Liberals’ consultative Environmental Assessment Expert Panel started off on the right foot in September of 2016. Former Commissioner for Environment and Sustainable Development, Johanne Gélinas, and her team of experts did an incredible job with their expert panel. Alongside the advice of the National Energy Board (NEB) Expert Panel, the key recommendation was clear: environmental assessment should be carried out by a single agency, empowered with quasi-judicial tribunal authority. There are a number of glaring exceptions to this core recommendation in the government’s discussion paper.

While the discussion paper proposes many improvements to Harper’s version of EA, as found in CEAA 2012, it does so primarily in improving public engagement in the process.  It emphasizes something of a return to past practice in early engagement, before a project plan is finalized, better public engagement and a much expanded role for indigenous consultation.

The process described in the discussion paper remains much the same as CEAA 2012.  The ambit of federal requirements to conduct environmental reviews appears to remain unacceptably narrowed. 

It seems the expert panel report has been largely ignored or rejected.  The Environmental Assessment Agency is not to be converted to a quasi-judicial board with sole authority for conducting environmental assessment (EA). And while the discussion document says a “project list” will be developed so that the public will know what projects require a federal review, the paper gives no hint as to how the list will be developed, what criteria will be used, or whether it will revert to the pre-C38 framework. 

Not only do proposed reforms fail to be as strong as the original CEAA; they fail to be as clear or effective as the 1970s Guidelines Order, the Federal Environment Assessment and Review Process (EARP).  EARP was an Order in Council that required federal reviews whenever a project involved federal land, federal money or areas of federal jurisdiction.  The legislated CEAA, introduced under former Prime Minister Mulroney and entering into force under former Prime Minister Chrétien, reduced those broad categories to federal land, federal money, and decisions under named pieces of federal law. Over time, the “law list” emerged, and not all federal decisions required review. 

CEAA 2012 removed most decisions from review, reducing the number of reviews conducted annually from thousands to dozens.

Under the discussion paper it appears the federal ‘triggers’ for review will remain excessively curtailed. 

Worse, the discussion document maintains a role in environmental reviews for agencies that have no history, prior to 2012, in engagement in reviews.  Experience since 2012 confirms these agencies are inappropriate and incompetent in conducting reviews.  The National Energy Board, the Canadian Nuclear Safety Commission and the Off-Shore Petroleum Boards will continue to have a role in environmental assessments.  It is actually worse than what Harper accomplished as the two Off-Shore boards – the Canada-Nova Scotia Off-Shore Petroleum Board and the Canada-Newfoundland and Labrador Off-Shore Petroleum Boards – had not had the required regulatory changes to start fulfilling their CEAA2012 mandate. These boards are created under legislation that gives them the mandate to expand oil and gas development in Canada’s off-shore.  This creates an inherent conflict of interest making them wholly compromised in any engagement in reviews, other than as a proponent.

There was never any rationale or public policy defence offered for treating energy projects to a wholly different review process than mining, transportation or other sectoral developments. It is purely and simply a product of the Harper-era laser-like focus on getting energy projects approved more quickly than other projects.  It has failed in getting projects approved quickly.  In fact, the incompetence of the agencies involved is delaying projects and subjecting them to being struck down in the courts.

This collection of agencies, empowered for the first time in C-38 to conduct environmental reviews, are now collectively described as “life-cycle regulators.”  This is pure public relations mumbo-jumbo.  It is a post-facto justification that Harper never dreamt up. Although the discussion paper says that environmental reviews will be conducted by a single government agency, the “life-cycle regulators” are still mandated to conduct environmental assessments of energy projects “as part of a single, integrated review process.”

There is much that is appalling in the discussion paper, but ignoring the advice of two expert panels to keep the NEB, the CNSC and the off-shore boards involved in EA is simply unbelievable.

The NEB survives the dustbin?

The most devastating critique of the National Energy Board comes from the government’s own expert panel. Panel members included significant representation from industry, including the head of the Canadian Pipeline Association. That group of experts concluded that the NEB has “fundamentally lost the confidence of many Canadians.” So much so that a key provision of that panel’s recommendation was to rename the National Energy Board to the ‘Canadian Energy Transmission Commission.’

Yet, in the discussion paper, the NEB’s name survives, as do some of its most dysfunctional elements. There are 30 recommendations of the NEB expert panel that remain incomplete, completely untouched by the government’s recommendations. Particularly when it comes to engaging with Indigenous peoples and providing real mechanisms for stakeholders to hold government and proponents accountable, the discussion paper falls short.

It is also deeply disappointing that the strong recommendation 5.2.3 for regional multi-stakeholder committees to review emergency preparedness plans with citizens and first-responders, was not addressed.

Protecting Navigable Waters 

More than 99% of Canada’s inland waters were not listed in the 2012 rewrite of the Navigable Waters Protection Act. The changes contained within that rewrite, in addition to other key measures of Harper’s omnibus Bill C-45, were the jumping off point for the massively effective Idle No More movement. The Liberals promised in 2015 to restore key protections to ensure no further erosion to Canadian environmental protections.

Unlike the other sections of the government’s discussion paper, the consultative basis for the government’s proposals was distinctly poor. The Parliamentary Committee on Transport, Infrastructure and Communities completely missed the mark on its brief review of the Navigation Protection Act. It held only six meetings and heard from only 17 witnesses. Instead of recommending restoring protections to navigable waters across Canada, it recommended maintaining the Conservative approach from C-45, while making it easier to add specific waterways to the existing list. The committee also accepted a new, bizarre justification from Transport Canada for abandoning the protection of navigable waters: that the waterways listed in C-45 were the country’s “largest and busiest.” This is a new defense of what former Prime Minister Harper did and it doesn’t stand up to any scrutiny.  The NWPA was never about managing navigation in busy ports; it was about the right of any Canadian to traverse navigable waters. It is especially unacceptable given that the Canadians most likely to be placing canoes and other watercraft in remote waters for hunting and fishing are indigenous.  Thus two constitutional responsibilities of the federal government – to protect the rights of navigation and the government’s fiduciary duty to indigenous peoples – are being flouted.

It is abundantly clear that the combined effect of changes to CEAA, the Fisheries Act and the NWPA was for the purpose of speeding development.  Many key waterways, including National Heritage Rivers were not listed. The winnowing down from every waterway that was navigable, to a handful of listed waterways was wholly indefensible.  But the Transport committee accepted it; and now, tragic though it may be, it appears as though the government has, as well.

The governments near wholesale adoption of the committee’s findings are extremely disappointing. West Coast Environmental Law gave the government two ‘Fs’ and an ‘incomplete’ on their assessment of the government’s response. The government must return to its role of protecting rights to navigation on all waters that are navigable, as that word was understood in the previous Navigable Waters Protection Act from 1882 until 2009.

The Fisheries Act 

The Parliamentary Committee on Fisheries and Oceans should be lauded for the thoroughness and keenness of their review and recommendations. It is largely due to their work that the government’s discussion paper adopts strong principles for reforming and strengthening the Fisheries Act.

That said, there are many incomplete recommendations left for the government to introduce in legislation this fall. It is concerning that there is no reference to stronger regulation of the aquaculture industry or to protecting struggling fisheries stocks. In fact, I agree with Professors Olszynski et. al when they call for legislating the 1986 ‘no net-loss’ policy with respect to fish habitats.

I am also disappointed the government appears to ignore the Committee’s recommendations to enhance enforcement, in particular to “reduc[e] reliance on project proponent self-assessment.”

Too little, too late?

Before the erasure of our environmental laws in 2012, our environmental assessment regime needed improvement. At each and every opportunity I have advocated for the same approach: swift action to restore the environmental assessment laws as they existed before 2006, followed by a comprehensive update to the laws as they were then. My concerns were that this precise sequence of events would occur: a long, drawn out process subject to the whims of the political winds. Now, the solutions described by this discussion paper are like shoddy construction built on a cracked foundation: fundamentally unworkable.

I understand that repairing damage to legislation can be slow, painful and potentially futile. But there have been files on which the Trudeau administration has found success in rewriting, and thereby successfully updating, laws that Harper repealed or gutted. Unfortunately, this particular rewrite of environmental legislation looks to have sunk in a sea of consultations.

That said, we have the time to repair the process and restore adequate protections.  The work of the expert panels and the millions of dollars spent in those exercises need not be wasted.  The government can introduce legislation this fall that contains bold recommendations to re-envision Environmental Assessment in Canada for a new generation. To accomplish this, the government must be capable of a hard reset on the National Energy Board, and a complete rework of the Navigation Protection Act to bring back the automatic protections of all navigable waters.

Once again, the bottom line is clear: The Trudeau administration must ensure that the rubric of environmental laws, rights of navigation, protections for our fisheries and regulation of energy transmission be at least as effective as those existing in 2006.  If this discussion paper is not massively over-hauled, the devastating changes wrought in C38 and C45 will remain largely in place.   

 

Elizabeth May, O.C.

Member of Parliament

Saanich – Gulf-Islands

Leader of the Green Party of Canada

 

cc:

The Honourable Jim Carr, P.C., M.P.                                                                                                                                                                                                                                               

Minister of Natural Resources

The Honourable Catherine McKenna, P.C., M.P.

Minister of Environment and Climate Change

 

The Honourable Dominic Leblanc, P.C., M.P.

Minister of Fisheries and Oceans and the Canadian Coast Guard

 

The Honourable Marc Garneau, P.C., M.P.

Minister of Transport

 


Expert Panel on EA

Discussion Paper

2.1.1 The Panel recommends that federal interest be central in determining whether an IA should be required for a given project, region, plan or policy.

2.1.2 The Panel recommends that federal IA should begin with a legislated Planning Phase that, for projects, occurs early in project development before design elements are finalized.

“Requiring a new early planning phase led by proponents with clear direction from the government” “A new requirement for an early planning and engagement phase, led by proponents with clear direction from government, to support better- designed project proposals and more effective assessments and to seek consensus on the project assessment process”

Partial – while the Panel makes it clear the Planning Phase should be part of the federal IA, the wording of the “proponent-led” discussion paper suggestion, as well as the diagram on p. 8 suggest the early planning phase the government envisions would not be as substantive.

2.1.3 (A) The Panel recommends that sustainability be central to IA. The likelihood of consequential impacts on matters of federal interest should determine whether an IA would be required. (B) The Panel recommends that federal IA decide whether a project should proceed based on that project’s contribution to sustainability.

Incomplete – There is not one mention of the word sustainability in the document

2.1.4 The Panel recommends that IA legislation require the use of strategic and regional IAs to guide project IA. 

“Conducting strategic assessments that explain the application of environmental frameworks to activities subject to federal oversight and regulation, starting with one for climate change” “Regional assessments to guide planning and management of cumulative effects (e.g. biodiversity and species at risk), identify the potential impacts on the rights and interests of Indigenous peoples, and inform project assessments

Complete

2.2.1 The Panel recommends that co-operation be the primary mechanism for co-ordination where multiple IA processes apply.

“Developing cooperation agreements with interested jurisdictions (provinces, territories, Indigenous) and support the objectives of “one project – one assessment,” while respecting their jurisdiction.”

Complete

2.2.2 The Panel recommends that substitution be available on the condition that the highest standard of IA would apply.

“Retaining legislative provisions to allow substitution with provinces and territories where there is alignment with federal standards”

Partial – explicitly states that substitution will occur where there is alignment with federal standards, not necessarily, as the Panel recommends, “that the highest standard of IA will apply”

2.3.1 The Panel recommends that Indigenous Peoples be included in decision-making at all stages of IA, in accordance with their own laws and customs.

“Developing new provisions to enable substitution with Indigenous governments.” Ensuring that the process better recognizes Indigenous jurisdiction, laws and practices.” “Increasing flexibility to allow the Government of Canada to defer to or harmonize with environmental assessment processes created pursuant to Indigenous governments”

Partial – the Panel was forceful: “Indigenous Peoples be included in decision-making at all stages, in accordance with their own laws and customs.” Substitution with Indigenous governments is laudable, but does not address that Indigenous Peoples are excluded from most IAs.

2.3.2 (A) The Panel recommends that IA processes require the assessment of impacts to asserted or established Aboriginal or treaty rights and interests across all components of sustainability. (B) The Panel recommends that any IA authority be designated an agent of the Crown and, through a collaborative process, thus be accountable for the duty to consult and accommodate, the conduct of consultation, and the adequacy of consultation. The fulfilment of this duty must occur under a collaborative framework developed in partnership with impacted Indigenous Groups. 

“Direct engagement between Crown representatives and Indigenous peoples to discuss and understand potential project impacts to facilitate early planning and issue identification.” “Indigenous peoples want improvements in consultation processes, including clear accountabilities and direct involvement from the Crown.” “Clarifying roles for consultation and accommodation in regulatory processes to ensure the honour of the Crown is respected.”

“Establishing a single government agency responsible for guiding and conducting federal assessments and coordinating Crown consultations for those assessments.”

Partial – No mention of the IA authority being designated an agent of the Crown and thus accountable for the duty to consult.  Most explicit mention is that the single government agency be “responsible for … coordinating Crown consultations for those assessments.”

2.3.3 (A) The Panel recommends that any IA authority increase its capacity to meaningfully engage with and respect Indigenous Peoples, by improving knowledge of Indigenous Peoples and their rights, history and culture. (B) The Panel recommends that a funding program be developed to provide long-term, ongoing IA capacity development that is responsive to the specific needs and contexts of diverse Indigenous Groups.  (C) The Panel recommends that IA-specific funding programs be enhanced to provide adequate support throughout the whole IA process, in a manner that is responsive to the specific needs and contexts of diverse Indigenous Groups. 

Incomplete – absolutely no mention of increased funding to improve knowledge of Indigenous Peoples and their rights.

2.3.4 (A) The Panel recommends that IA legislation require that Indigenous knowledge be integrated into all phases of IA, in collaboration with, and with the permission and oversight of, Indigenous Groups.  (B) The Panel recommends that IA legislation confirm Indigenous ownership of Indigenous knowledge and include provisions to protect Indigenous knowledge from/against its unauthorized use, disclosure or release. 

“Consideration and protection of Indigenous knowledge, alongside science and other evidence,”

“Co-develop tools, guidance, and capacity with Indigenous peoples to better support and systematically consider Indigenous knowledge.” “Protect the confidentiality of Indigenous knowledge where appropriate (e.g. sacred site locations).”

Partial

2.4.1 The Panel recommends that IA legislation require that IA provide early and ongoing public participation opportunities that are open to all. Results of public participation should have the potential to impact decisions.

“Open opportunities for meaningful public participation in assessments and regulatory reviews.” “Eliminating the ‘standing’ test previously used by the National Energy Board for those wishing to participate in assessments.

Partial – While the panel emphasized again and again the early planning phase, the government here instead chooses to require a proponent led process ‘with clear direction from the government’.

2.4.2 The Panel recommends that the participant funding program for IA be commensurate with the costs associated with meaningful participation in all phases of IA, including monitoring and follow-up.

“Improving participant funding programs for Indigenous peoples and the broader public to streamline applications and expand eligible activities.

Partial – mention of participant funding in the IA section of the discussion paper does not include commitment to ‘all phases’ or ‘meaningful.’

 2.4.3 The Panel recommends that IA legislation require that IA information be easily accessible, and permanently and publicly available

“Increasing user-friendly on-line public access to project information generated during environmental and regulatory reviews, including follow-up, monitoring, compliance and enforcement.”

“Providing easy, on-line access so that Canadians can track companies’ progress as they address the conditions required to advance their project.”

Partial – no mention of statutory requirement

2.5.1 (A) The Panel recommends that IA legislation require that all phases of IA use and integrate the best available scientific information and methods. (B) The Panel recommends that IA legislation require the development of a central, consolidated and publicly available federal government database to house all baseline and monitoring data collected for IA purposes. (C) The Panel recommends that IA legislation provide any IA authority with power to compel expertise from federal scientists, and to retain external scientists to provide technical expertise as required. (D) The Panel recommends that any IA authority have the statutory authority to verify the adequacy of IA studies across all pillars of sustainability.

“Reinforcing rigour through peer reviews of science and evidence in the assessment phase.” much weaker than the EA Panel recommendation, especially given the immense opportunity to allow for the compelling of technical expertise as required.

Partial

2.5.2 The Panel recommends that IA integrate the best evidence from science, Indigenous knowledge and community knowledge through a framework determined in collaboration with Indigenous Groups, knowledge-holders and scientists.

“Consideration and protection of Indigenous knowledge, alongside science and other evidence,”

“Reinforcing rigour through peer reviews of science and evidence in the assessment phase.”

Partial

2.5.3 The Panel recommends that IA legislation require that any IA authority lead the development of the Impact Statement.

Incomplete

2.5.4 The Panel recommends that IA decisions reference the key supporting evidence they rely upon, including the criteria and trade-offs used to achieve sustainability outcomes.

“Greater transparency on reasons for environmental assessment and regulatory decisions and timely feedback on how public input was considered.”

Incomplete – key here is a requirement to demonstrate how evidence supports sustainability outcomes.

3.1.1 (A) The Panel recommends that a single authority have the mandate to conduct and decide upon IAs on behalf of the federal government. (B) The Panel recommends that the IA authority should be established as a quasi-judicial tribunal empowered to undertake a full range of facilitation and dispute resolution processes.

“Establishing a single government agency responsible for guiding and conducting federal assessments and coordinating Crown consultations for those assessments”

Partial – no mention of reinforcing the quasi-judicial, tribunal nature of the IA authority.

3.1.2 The mandate of the Impact Assessment Commission would be to: (A) Implement government IA policy and provide guidance for IA at the federal level covering Strategic IA, Regional IA and Project IA; (B) Conduct or manage IAs in an effective, timely and predictable manner that results in clear, evidence-based decisions; (C) Provide incentives and flexibility in the IA process to enable effective co-ordination with other jurisdictions; (D) Ensure the principles of the United Nations Declaration on the Rights of Indigenous Peoples are reflected in IA; (E) Ensure impacts on Aboriginal and treaty rights are considered and assessed in the IA process and ensure the duty to consult and accommodate is appropriately fulfilled by the Commission; (F) Ensure decisions are based on reliable independent science, Indigenous knowledge and community knowledge; (G) Ensure that the process is transparent and that public reporting of information occurs at all phases of the IA, including the rationale for decisions made and the consideration of comments received; (H) Maintain both a public registry of IA information for public participation and a searchable database for all scientific data created for IA purposes; (I) Ensure the public is engaged meaningfully at each step of the assessment process, from the planning stage through to the post-IA stage of monitoring and follow-up; (J) Ensure the process is, and is perceived to be, fair; (K) Ensure that throughout IA, Commissioners support consensus-building but also provide timely dispute resolution and decision-making to advance IA objectives; (L) Ensure fiscal discipline for all IAs; (M) Ensure compliance and adequate monitoring and follow-up; (N) and Monitor the quality of IAs and create a culture of continuous improvement.

“Indigenous Peoples want a renewed relationship with the federal government, consistent with the Constitution and the UNDRIP.”

Partial

3.2.1 (A) The Panel recommends that IA legislation define a “project” to be a physical activity or undertaking that impacts one or more matters of federal interest. (B) The Panel recommends that IA legislation require project IAs when a project is on a new Project List, a project not on the new List is likely to have a consequential impact, or the IA authority accepts a request.

Incomplete – no elaboration on the statutory definition of project.

3.2.2.1 (A) The Panel recommends that all phases of project IA be conducted through a multi-party, in person engagement process. (B) The Panel recommends that, for project IA, the outcome of the Planning Phase would be a conduct of assessment agreement.

Incomplete – the discussion paper is virtually silent on creating a Planning Phase.

3.2.2.2 The Panel recommends that the studies outlined in the conduct of assessment agreement be completed in the Study Phase. The IA authority would lead an assessment team accountable for preparing the Impact Statement, informed by these studies.

Incomplete – no mention of how the IA authority would prepare the Impact Statement.

3.2.2.3 The Panel recommends that a Decision Phase be established wherein the IA authority would seek Indigenous consent and issue a public decision statement on whether the project provides an overall net benefit to Canada across the five pillars of sustainability for present and future generations.

“Early and regular engagement and participation based on recognition of Indigenous rights and interests from the outset, seeking to achieve free, prior and informed consent through processes based on mutual respect and dialogue.”

Partial – mention of early engagement and ‘FPIF’ but  no establishment of decision phase.

3.3.1 The Panel recommends that IA legislation contain a formal process to amend conditions.

“Explore a mechanism to amend project conditions to support the integration of adaptive management and technological advances.”

Complete – though worth adding that the discussion paper creates a distinct use-case for amendments whereas the panel does not.

3.3.2 (A) The Panel recommends that IA legislation ensure sustainability outcomes are met through mandatory monitoring and follow-up programs with minimum standard requirements common to all project IAs. (B) The Panel recommends that Indigenous Groups and local communities be involved in the independent oversight of monitoring and follow-up programs established by the IA authority. (C) The Panel recommends that all monitoring and follow-up data, including raw data, results and any actions taken to address ineffective mitigation, be posted on a public registry.

“Inclusive monitoring and compliance activities, so that life-cycle regulators and permitting departments work closely with Indigenous peoples, communities and landowners.”

Partial – lots remaining here from a thorough recommendation:  Indigenous Group oversight is supposed to be independent, and oversight and follow-up programs are established by the IA authority, not life-cycle regulators.

3.3.3 (A) The Panel recommends that IA legislation provide a broad range of tools to enforce IA conditions and suspend or revoke approvals. (B) The Panel recommends that the results of inspections be promptly available to the public. An annual report of compliance with conditions for all projects should be published in a public registry. (C) The Panel recommends that IA legislation authorize the IA authority to carry out compliance and enforcement activities with other jurisdictions, so long as the results of such activities are no less available to the public than the results of activities by the IA authority.

Incomplete – no mention of public registry other than of ‘open data’ and ‘transparency’

3.4.2 The Panel recommends that the IA authority be required to develop an estimate of the cost and timeline for each phase of the assessment and report regularly on the success in meeting these estimates.

“working with industry to define activities that should be cost-covered”

Incomplete – certainly not a fulsome cost-analysis and reporting that the panel asked for.

3.5 Regional IA may address five key objectives: (A)To streamline, inform and improve project IA; (B) To gather information about and improve management of cumulative impacts affecting the sustainability of matters of federal interest; (C) To inform federal decisions on future projects in the region; (D) To build trust and relationships with Indigenous Groups; and (E) To set a preferred direction and strategy for achieving sustainability in a region through the assessment of alternative development scenarios.

“Regional Assessments to guide planning and management of cumulative effects (e.g. biodiversity and species at risk), identify the potential impacts on the rights and interests of Indigenous peoples, and inform project assessments.”

Complete – though missing ‘sustainability’, which seems like a clear objective of regional IAs.

3.5.1 (A) The Panel recommends that IA legislation require regional IAs where cumulative impacts may occur or already exist on federal lands or marine areas, or where there are potential consequential cumulative impacts to matters of federal interest. (B) The Panel recommends that IA legislation require the IA authority to develop and maintain a schedule of regions that would require a regional IA and to conduct those regional IAs.

No mention of legislative requirements for regional IAs.

Incomplete

3.5.2 The Panel recommends that a regional IA establish thresholds and objectives to be used in project IA and federal decisions.

No mention of thresholds and objectives for project IAs.

Incomplete

3.6.1 The Panel recommends that IA legislation require that the IA authority conduct a strategic IA when a new or existing federal policy, plan or program would have consequential implications for federal project or regional IA.

“Conducting Strategic assessments that explain the application of environmental frameworks to activities subject to federal oversight and regulation, starting with one for climate change.

Partial – definition is much, much more vague than in the Panel report.

3.6.2 The Panel recommends that strategic IA define how to implement a policy, plan or program in project and regional IA.

“a strategic assessment of the Pan-Canadian Framework would provide guidance on how to determine ho life-cycle GHG emissions associated with individual projects are assessed” “conducting strategic assessments that explain the application of environmental frameworks to activities subject to federal oversight and regulation, starting with one for climate change.”

Partial – hinted at, but no specific definition of how a strategic IA would work

3.7 The Panel recommends that Canada lead a federal strategic IA or similar co-operative and collaborative mechanism on the Pan-Canadian Framework on Clean Growth and Climate Change to provide direction on how to implement this Framework and related initiatives in future federal project and regional IAs.

“Developing and strengthening national environmental frameworks to inform regional assessments (e.g. Pan-Canadian Framework for Clean Growth and Climate Change; Air Quality Management System)”

Complete

 

Expert Panel on NEB

EA Discussion Paper

Complete/Partial/Not Complete

1.1.1 The Department of Natural Resources, in partnership with Environment and Climate Change Canada (and any other relevant players within the federal house), provinces and territories, in Consultation with Indigenous peoples, and with broad stakeholder engagement, publish and update on a reasonable schedule a formal Canadian energy strategy which plots a course for the future of energy in Canada, balancing environmental, social, and economic objectives.

Incomplete

1.1.1 The Department of Natural Resources, in partnership with Environment and Climate Change Canada (and any other relevant players within the federal house), provinces and territories, in Consultation with Indigenous peoples, and with broad stakeholder engagement, publish and update on a reasonable schedule a formal Canadian energy strategy which plots a course for the future of energy in Canada, balancing environmental, social, and economic objectives.

Incomplete

1.2.1 That the federal government should perform a high level of inter-governmental coordination on all energy-related matters in order to realize its vision of the future of energy in Canada, fully respecting the roles of provincial, territorial, and Indigenous governments. Furthermore, we recommend that this approach include, to the greatest extent possible, the engagement of other stakeholders, to create a united front for making Canada’s energy vision, and related emission reductions, a reality.

Incomplete

1.3.1 The government establish an independent Canadian Energy Information Agency, reporting to the Minister of Natural Resources, whose mandate would include collection and dissemination of energy data, as well as the production of an annual public report on Canada’s energy system, and quantitative analysis of the alignment with Canadian energy strategy goals.

Developing a separate model to deliver  timely and credible energy  information to Canadians

Partial – “separate” does not necessarily mean independent, and no mention of integration with energy strategy goals.

1.4.1 The enabling legislation of the CETC be amended to provide for the Minister of Natural Resources – based on advice from a whole-of-government perspective – to make a public recommendation to the Governor in Council of whether a preliminary major project proposal is in the national interest, on the basis of Consultation with Indigenous peoples (supported by a new Indigenous Major Projects Office described in Theme 2, below), strategic-level assessment, and engagement with stakeholders. The Governor in Council would have authority for the final national interest determination.

Incomplete

1.4.2 In addition, we recommend that a more complete definition of the national interest, inclusive of Indigenous Consultation, environmental, economic, and social factors, be enshrined in regulation and updated on a reasonable schedule to keep pace with societal change, and that enabling legislation of the regulator be amended to make mandatory the consideration of the national interest so defined.

“Changing the wording to  determining public interest  to explicitly include environment, safety, social and health considerations”

Partial – this explicitly excludes incorporating indigenous interests into the public interest component and makes no mention of updating it on a regular basis, or making consideration of it mandatory.

1.5.1 Enshrined in the CETC Act, a modernized National Energy Board, hereafter known as the Canadian Energy Transmission Commission (CETC) will have the mandate and authority for the licensing of transboundary pipeline and transmission line projects, including the imposition of specific conditions on project proponents. Major projects must first be determined to align with the national interest by the Governor in Council, before any licensing hearing.

Incomplete

1.5.2 We further recommend for major and significant projects that the CETC exercise this authority through Joint Hearing Panels which integrate CEA Agency-led project-level Environmental Assessments and the CETC decision making process to achieve the dual goals of delivering a single regulatory review process (not parallel technical and environmental review processes), and assuring that all federally- mandated Environmental Assessments are conducted in a consistent, high quality manner (under the authority of the CEA Agency). Five person Joint Hearing Panels – with at least one Indigenous member – would be comprised of two Commissioners from the CETC, two from the CEA Agency, and a final independent Commissioner.

“Increasing  Indigenous representation  among the Board and Hearing Commissioners and requiring expertise in Indigenous knowledge”

Partial – this recommendation should really be split into multiple, because the force of it is to require dual agency, single process assessments with CEAA doing an environmental review.

1.6.1 The Canadian Energy Transmission Commission’s enabling legislation should have provisions to review and strengthen its capacity with respect to transmission lines, with a particular focus on building capacity for engagement with Provinces (under whose authority new generation projects will take place), and the integration of new forms of (renewable) energy into the national grid.

“Adding provisions to provide authority to  regulate renewable energy projects and associated power lines in offshore areas  that are under federal jurisdiction”

Partial – Panel recommendation is for authorization to integrate renewables into the grid and regulate transmission lines, the discussion paper flips these, instead saying provide authority to regulate energy projects and the very specific ‘associated power lines in offshore areas’

2.1.1 Indigenous peoples should have a nation-to-nation role in determining Canada’s national energy strategy, and we look to the Minister of Natural Resources to define how this commitment can be met within the context of the decisions and recommendations of the Working Group of Ministers on the Review of Laws and Policies Related to Indigenous Peoples.

Incomplete

2.2.1 The government fund an Indigenous Major Projects Office, under the governance of Indigenous peoples (determined as they see fit). Responsibilities of this Office would include but not limited to defining clear processes, guidelines, and accountabilities for formal Consultation by the government on energy transmission infrastructure, regulatory processes and assessing compliance with those guidelines. In addition, the Office would define and disseminate best practices, including coordinating and/or supporting Environmental Assessments and regulatory reviews, to help interested Indigenous communities enhance the quality of their participation in formal Consultation and engagement processes.

“Strengthening the approach for Indigenous peoples to  build capacity  for participation in processes and help coordinate Crown consultations”

Partial – includes building capacity but no mention of the specific Major Projects office or trying to enhance quality of participation.

2.2.2 The CETC Act should empower the CETC to engage in discussions with Indigenous communities to enhance and facilitate the meaningful participation of Indigenous communities in the strategic and licensing phases of projects.

Incomplete

2.3.1 That the Minister of Natural Resources, working under the framework defined by the Ministerial Working Group, and in partnership with Indigenous peoples, define authorities for Crown consultation in the strategic phase of a project review, in the detailed assessment and regulatory decision making phase of a project review, and for the oversight of CETC operations on an ongoing basis. This must include clear guidance regarding who may or must be physically present on behalf of the Crown during Consultations, not just overall authorities.

Incomplete

2.4.1 The CETC and the Minister of Natural Resources should move to produce guidelines for early engagement, that allow industry and Indigenous peoples to communicate more freely and without prejudice to outstanding claims of right, or subsequent project reviews. This would include pre-filing information sessions, town halls with proponents under the oversight of the regulator, and more.

Incomplete

2.5.1 That the Crown retains flexibility in its processes, reflecting the principle that each Indigenous nation has an independent relationship with Canada. In addition, we encourage the government to do more to meet with Indigenous peoples on their own terms, and in their own places, to the greatest extent possible.

Incomplete

3.1.1 Enshrined in legislation, authority for the Governor in Council to make the determination of whether or not a major project is in the national interest, based on a public report and recommendation from the Minister of Natural Resources. Furthermore this phase, from preliminary project filing to Governor in Council Decision, should typically happen within 12 months, with three months for GIC decision. The purpose of this phase of the process would be to determine whether a major project may proceed to a detailed project review.

Incomplete

3.2.1 The enabling legislation of the Canadian Energy Transmission Commission should establish it as an independent, quasi-judicial body, with full authority to approve or deny major projects – based on technical criteria, detailed environmental assessment and project-specific conditions including social, economic, lands, and municipal interests – that have passed a Governor in Council review. We further recommend that detailed project reviews of major projects typically be concluded within 2 years from time of filing, to allow adequate time for meaningful Consultation and engagement.

Incomplete

3.2.2 We also recommend that Section 58(1) of the NEB Act be repealed, and that the Act be amended to provide authority, mechanisms, and specific criteria for three classes of review: 1. Projects of national consequence, which require review by the Governor in Council; 2. Projects of significance which require a full Joint Panel review (but not review by Cabinet); and 3. Smaller activities which require review and approval, but not a full Joint Panel review. Such criteria should relate to a project’s risk and impact, not an arbitrary distance criterion.

Incomplete

3.2.3 Enshrined in the CETC Act, moreover we recommend that processes and authorities for export/import permits and electric transmission line reviews be harmonized, to the greatest extent possible, with those pertaining to pipelines, to afford all review processes the same level of transparency and integrity.

“Providing authority to make  final decisions on certain functions  such as import/export licenses, and  variances  or  transfers  to  certificates  and  licenses”

Incomplete

3.2.4 Enshrined in the CETC Act, in order to ensure clear accountability for permitting authority, the CETC should not exercise any permitting authority delegated to it by the federal entities of Fisheries and Transport Canada (e.g. permitting under the Fisheries or Navigation Protection acts) and any existing agreement to exercise such authorities on their behalf should be abrogated.

Incomplete

3.2.5 Lastly, we recommend that the government enshrine in legislation two core principles: that no regulated activity shall proceed without proper approval, and that all regulated activities undergo environmental assessment commensurate with the scale and risk of the proposed activity.

Incomplete

3.3.1 The enabling legislation of the Canadian Energy Transmission Commission should require that the CETC be governed by a board of directors whose sole responsibility is strategy and oversight of the Commission’s activities, while hearing panels and other regulatory decisions would be the purview of Hearing Commissioners responsible for executing Commission decision-making responsibilities.

“Creating a  corporate-style executive board  to lead and provide strategic direction to the NEB organization”

Incomplete

3.3.2 We further recommend that the Commission be managed by a Chief Executive Officer who is neither a board member nor a Hearing Commissioner, nor the Chair of the Board (with relevant amendments to the current NEB Act as required). Also, the CETC Act should ensure that the Chair does not have the discretion to undertake measures to ensure that the time limit of a project review is met, such as removal of commissioners dealing with an application.

“Separating the roles of  Chief Executive Officer and Chairperson of the Board, currently held by the same person”

Partial – the CEO should also explicitly no longer be a hearing commissioner and, crucially, that the second half of the recommendation also be included.

3.3.3 Finally, we recommend that the government include a plain language report on and explanation of the CETC cost recovery funding model in CETC annual reports, and that the funding model be included in the list of issues for possible consideration by Regional Multi-Stakeholder Committees.

Incomplete

3.4.1 The CEO of the CETC (or NEB in the immediate term) should be responsible for establishing a competency matrix for hearing panel members, which represents a broad array of skills, experience, and backgrounds, and for ensuring that each hearing panel contains a cross-section of those competencies. Because Indigenous knowledge is essential to inform sound decision-making, and to enable real nation-to- nation relationships we further recommend that every joint hearing panel consist of at least one Indigenous member with extensive experience with Indigenous issues and worldview. Further, the competency matrix should be subject to Consultation and engagement, made public, and updated on a regular basis.

“Enhancing the  diversity  of the Board and Hearing Commissioners”

Partial – this recommendations doesn’t just call for increased indigenous representation and a diverse board, but in fact recommends requiring one indigenous hearing commissioner per joint panel, and that the ‘competency matrix’ is open to public consultation.

3.4.2 We further recommend that the NEB Act be amended to remove the requirement that Board members (Hearing Commissioners in our modernized vision) live in the area of the organization’s headquarters, and that the future office of the Board of Directors be based in Ottawa.

“Maintaining the National Energy Board in Calgary, while eliminating the residency requirement for the Board and Hearing Commissioners.”

Partial – removing the residency requirement, but keeping the Board in Calgary when the panel explicitly recommended moving it to Ottawa.

3.4.3 Enshrined in the CETC Act, we recommend that the CETC affirm the current NEB conflict of interest rules, including industry cooling and post-employment provisions, to reduce the risk of real or apparent conflict of interest. In addition, the CETC conflict of interest policy should provide for the revocation of a Director or Hearing Commissioner appointment in the event of serious real or perceived conflict of interest that is further bolstered by guidelines or regulations that can be updated periodically.

Incomplete

3.4.4 Finally, we recommend the establishment of an Elders External Advisory Council, in Consultation with Indigenous peoples, charged with advising the Board, CEO, and Hearing Commissioners on Indigenous issues, as well as reviewing CETC practices, and helping to ensure high quality inclusion and interpretation of traditional knowledge.

Incomplete

4.1.1 Standing tests be repealed as a criterion for input into project hearings and operational oversight, and the CETC Act should be adapted to allow for a wider array of input (from simple letters to the provision and testing of evidence).

“Increasing  public participation  opportunities in technical hearings, including enhancing the support available to all participants to help them navigate regulatory processes”

Partial – no mention of specific steps to increase public participation opportunities. Though does make mention of enhancing ‘support available’ but far cry from the specific recommendations below (see below: 4.3.1)

4.1.2 Furthermore, it is recommended that the CETC Act provide a provision for all Canadians be permitted to submit a Letter of Comment to the CETC for consideration during its deliberations.

Complete

4.2.1 The government should amend enabling legislation of the CETC to empower the regulator and demand that it performs its quasi-judicial role to a high standard, but also that its processes are designed and implemented in such a way as to maximize the inclusion of all parties. The regulator should examine and reform its processes to achieve a higher degree of engagement and flexibility, toward the outcome that the public feel welcome and to enable the participation of interested parties who may not be experts in legal process.

Incomplete

4.2.2 In addition, tests of standing should be abolished, and every interested party should have a reasonable opportunity to participate commensurate with their contribution to the process.  Finally, Letters of Comment from any party should be permitted without qualification.

Complete

4.3.1 Enshrine the enabling legislation of the CETC a Public Intervenor Office, based on successful models from other jurisdictions, to represent the interests and views of parties who wish to use the service, and to coordinate scientific and technical studies to the extent possible.

Incomplete

4.4.1 CETC legislation establish Regional Multi-Stakeholder Committees, open to all interested parties, with a mandate to review all aspects of the regulatory cycle and operational system (for example, issues like: emergent environmental risks, monitoring performance, socio-economic impacts of regulated activities, and more).

Incomplete

4.5.1 The government continue to reform its online presence, driven by the priorities of its users, not the regulator. We further recommend the creation of a visible and accessible online public outreach office charged with engaging citizens and helping them to navigate the many processes and documents that can represent a barrier for participation in the regulatory system.

Partial

5.1.1 That the CETC regulate and clearly communicate its standards and approach to ensuring compliance with standards and expectations for management systems, and water protection specifically, in a way that can be understood by non-specialists, and that it should engage its (proposed by us) Regional Multi-Stakeholder Committees to identify specific elements for review and revision, as appropriate.

Incomplete

5.1.2 We further recommend that the CETC explain in plain language how rules for liability work, how the relative monetary amounts are calculated, and consider a public review of the surety bond amount to ensure that it adequately addresses risk as intended.

Incomplete

5.2.1 The government immediately improve transparency of monitoring information, incident reports, and follow-up, including the provision of better online tools to help all citizens interact with this information.

“Making  information available to the public online, including incident reports and follow-up data, in a way that is easily understood”

Complete

5.2.2 That the government enter into formal agreements with Indigenous nations who wish to participate, in order to deliver local Indigenous energy infrastructure monitoring programs which are considered as a vital input to existing monitoring tools and systems.

“Expanding the role of Indigenous peoples  in  the monitoring of pipeline and other energy infrastructure  from construction to decommissioning”

Partial – no mention of formal agreements, or incorporating indigenous nations as ‘vital input’

5.2.3 We further recommend that Regional Multi-Stakeholder Committees review emergency preparedness plans with citizens, first responders, and other groups, to ensure their completeness, and to recommend any gaps for further action to be addressed by the CETC.

Incomplete

5.3.1 That the CETC publish regular reports – written in plain language, not jargon, without sacrificing accuracy – on incidents and compliance actions, that will allow any interested party to know what happened, why, and what was done in response.

Incomplete

5.4.1 That the CETC Act would enable the creation of Regional Multi-Stakeholder Committees. The intention in operation is that these Committees be formally integrated into the CETC’s management and continuous improvement systems, allowing all participating parties to assess aspects of the CETC’s practices and outcomes, and make recommendations for improvements.

Incomplete

6.1.1 The CETC Act should establish a Landowners Ombudsman to review and make recommendations on improving relationships with landowners, provide advice and best practices on how to navigate processes, enable better mediation, and potentially administer a fund so that landowners can access relevant legal advice.

“Introducing an advocate to support landowners in regulatory processes.”

Partial – an advocate would seemingly have some of these responsibilities but quite vague given the specificity of the NEB report’s recommendations. No mention of administering a legal fund.

6.1.2 We further recommend that CETC Hearing Commissioners take on the alternative dispute resolution, with support from alternative dispute resolution staff as appropriate, and adjudication functions, and reform the current process to streamline it significantly, and make public the results of adjudication decisions.

“Establishing  alternatives to some formal adjudicative processes, such as appropriate dispute resolution”

Partial – no mention of making these decisions public.

6.2.1 That the CETC work with the provinces and territories to enact more rigorous standards for land agents, up to and possibly including a formal certification program, and that it conduct more regular oversight of this function. Such standards should include strict protocols for first contacts with landowners, should require that industry fully explain expected impacts on the land and how the proposed agreement works, and should enact a mandatory cooling off period between first contact and signing, to ensure full consideration of the agreement.

Incomplete

6.2.2 We recommend that the CETC establish clear protocols for communication to ensure that landowners are adequately informed of operators exercising rights of entry, in non-emergency circumstances. This would include resolving issues around right of entry in cases of disputes that have not yet been settled.

Incomplete

 


 

Fisheries Committee

Discussion Paper

Complete/Partial/Not Complete

That section 35(1) of the Fisheries Act return to its wording as of 29 June 2012 which reads: “No person shall carry on any work, undertaking or activity that results in the harmful alteration or disruption, or the destruction, of fish habitat.” Remove the concept of “serious harm” to fish from the Act.

“Prohibit the harmful alteration, disruption or destruction (HADD) of fish habitat without approval.

Complete

That Fisheries and Ocean Canada take an ecosystem approach to protection and restoration of fish habitats so that the entire food web is preserved for fish by: Adopting key sustainability principles; Protecting the ecological integrity of fish habitat; and Protecting key areas of fish habitat.

Foster partnering for activities that conserve and enhance fish habitat.

Incomplete – specifically uses conserve and enhance rather than the committee’s protect and restoration and doesn’t explicitly mention ecological integrity.

Any revision of the Fisheries Act should review and refine the previous definition of HADD due to the previous definition’s vulnerability to being applied in an inconsistent manner and the limiting effect it had on government agencies in their management of fisheries and habitats in the interest of fish productivity.

“Identify measures to avoid and mitigate harm to habitat, including through the development and enforcement of standards and codes of practice.”

Partial – mention of development of standards and codes of practice but not guided along the principle of ‘strengthening’ HUDD’s definition.

That Fisheries and Oceans Canada emphasize protection for priority habitats that contribute significantly to fish production within the context of section 6 of the Act.

“Identify measures to avoid and mitigate harm to habitat, including through the development and enforcement of  standards and codes of practice”

Complete

That Fisheries and Oceans Canada fund more research dedicated to ecosystem science.

No specific funding committed to establishing more eco-system based science.

Incomplete

That protection from harmful alteration or disruption, or the destruction, of fish habitat be extended to all ocean and natural freshwater habitats to ensure healthy biodiversity.

No mention of freshwater or ocean habitats.

Incomplete

To protect fish habitat from key activities that can damage habitat, such as destructive fishing practices and cumulative effects of multiple activities.

“Incorporate modern resource management and planning  principles such as cumulative effects, the precautionary approach, and ecosystem-based management”

Partial – no mention of overfishing/destructive fishing practices

That Fisheries and Oceans Canada put sufficient protection provisions into the Fisheries Act that act as safeguards for farmers and agriculturalists, and municipalities.

Incomplete

That Fisheries and Oceans Canada work with the farm community and rural municipalities to provide incentives and expert advice to conserve and enhance fish habitat and populations and utilize the enforcement approach as a last resort.

“Ensure meaningful and ongoing engagement and participation in planning and integrated management.” “Support early and broad engagement in planning and management activities” “Collaborate with partners to identify key restoration and rebuilding priorities”

Partial – lots of vague hints at collaboration, but no specific mention of working with rural communities, nor incentives/expert advice to conserve and enhance fish habitat and populations.

That permitting be expedited to allow for works that involve the restoration of damaged infrastructure and emergency works to protect people and communities.

Incomplete

That the Fisheries Act should include a clear definition of what constitutes fish habitat.

“Clarify when Fisheries Act authorizations are needed for project and when they are not.”

Incomplete – defining authorizations rather than habitat.

That Fisheries and Oceans Canada assess and improve communications between fisheries stakeholders and the Department’s upper management and decision makers.

“Strengthen federal leadership, cooperation and communication with all orders of government, in all regions”

Partial – misses the mark because does not mention stakeholders, only other governments.

That communication within and between all levels of Fisheries and Oceans Canada be improved.

Incomplete

That Fisheries and Oceans Canada clearly define the parameters of what is considered a violation of the Fisheries Act.

Incomplete

That Fisheries and Oceans Canada should create a widely representative advisory committee to provide ongoing recommendation regarding the administration and enforcement of the Fisheries Act. The advisory committee should include but not be limited to, industry groups, project proponents, agricultural groups, municipal government representatives and commercial, recreational and Indigenous fisheries representatives.

“Establish a collaborative committee to advise  on fish and fish habitat protection”

Partial – broadly defined for “advise on fish” when the committee’s recommendation is for advising on the administration and enforcement of the act.

To broaden the Minister’s mandate to consider long-term conservation and protection of fish and fish habitat when evaluating projects that contravene the Fisheries Act.

Incomplete – no mention of changing Minister’s mandate.

That Fisheries and Oceans Canada provide the Committee with a report within two years after the revision to the Fisheries Act detailing authorization requests and decisions timelines.

Incomplete

That any changes to habitat protection in the Fisheries Act must be supported by a reduced reliance on project proponent self-assessment.

Incomplete

That Fisheries and Oceans Canada put in place consistent monitoring requirements for proponents, with clear standards and rationale.

“Provide Canadians  transparent access to information  about projects and activities impacting fish and fish habitat through: improved reporting from proponents; strengthened compliance monitoring; timely, relevant and accessible information”

Partial – “Improved” reporting would imply somehow setting out better guidelines for proponents but no mention.

That Fisheries and Oceans Canada make investments into a public and accessible database system that will identify: The location and status of projects that have been flagged by the Department of having a potential to cause harm to fish and fish habitat (authorizations, monitoring results and convictions) and their cumulative effects; The location of different aquatic species; Up-to-date monitoring of aquatic species at risk and their status; and The status of authorizations.

“Provide Canadians  transparent access to information  about projects and activities impacting fish and fish habitat through: improved reporting from proponents; strengthened compliance monitoring; timely, relevant and accessible information”

Partial

That Fisheries and Oceans Canada ensure that significant investments are made in hiring more field personnel to improve fish habitat enforcement, to assist in fisheries enhancement projects and to establish positive consultative relationships with local communities.

“Enhance  enforcement powers”

Partial (talk of enhancing powers but not resourcing enforcement specifically).

That Fisheries and Oceans Canada meaningfully resource the monitoring, compliance and enforcement components of the Department.

Incomplete (no specific resources committed to enforcement).

That Fisheries and Oceans Canada increase enforcement staff on the ground by recruiting and retaining habitat monitors, including fishery officers who are dedicated to habitat protection.

Incomplete

That Fisheries and Oceans Canada ensure that habitat protection staff are adequately trained and resourced with long-term funding and empower field staff to do their job to protect fish and fish habitat.

Build the capacity and develop expertise to protect fish and fish habitat

Partial (no mention of ‘adequately resourced’ or ‘long-term funding)

That Fisheries and Oceans Canada re-establish the Habitat Protection Branch, adequately resourced to provide advice to proponents of projects that may impact marine and freshwater habitats and to enforce compliance.

Incomplete

Re-examine sections 32, 35 and 36 Fisheries Act authorizations as environmental assessment triggers.

Incomplete

That Fisheries and Oceans Canada continue to fund fisheries conservation and enhancement projects in co-operation with the Indigenous communities, the agricultural communities, and fisheries conservation organizations.

Enhance the  participation of Indigenous peoples in the conservation and protection of fish and fish habitats

Partial (no mention of other stakeholders, or enhancement projects).

That the exercise of ministerial discretion be subject to transparency principles and public disclosure.

Incomplete

That the Minister, in the exercise of his or her discretionary power over licencing, may specify conditions of licence respecting and in support of social and economic objectives, in addition to the conservation objectives currently identified.

“Clarify the  factors considered  in decisions about approvals”

Partial (very weak fulfilment of this and other recommendations RE: requiring reasons )

That any revision to the Fisheries Act should include direction for restoration and recovery of fish habitat and stocks.

Incomplete

That the Government of Canada address known regulatory gaps to ensure that Fisheries and Oceans Canada, in collaboration with all fisheries stakeholders, is capable of responding to all activities that are harmful to fish or fish habitat and is able to actually determine effect (e.g. ongoing collection of baseline data that allows determination of changes due to activities).

Incomplete

That Fisheries and Oceans Canada renew its commitment to the “No Net Loss” and “Net Gain” policies with a renewed focus, effort and resources on restoration and enhancement of fish habitat and fish productivity and that the Department allow project proponents flexibility to fulfill this requirement.

Incomplete

 

 

1August 28, 2017Response to “Environmental and Regulatory Reviews: Discussion Paper”Released June 29 – Deadline for comment August 28, 2017From Elizabeth May, O.C., Member of Parliament for Saanich-Gulf Islands, Leader, Green Party of CanadaSubmitted online to: www.discussionpaper.caOpportunity lostIn spring 2012, I stood shoulder to shoulder with the then leader of the third party in the House, now our Prime Minister, and a number future Ministers in the Trudeau Cabinet, voting for 24 hours straight to protest the travesty that was omnibus budget Bill C-38.Bill C-38 ran to over 400 pages, changing over 70 laws. At the time, the opposition parties were hoping that by supporting the standing vote on my over 400 amendments at Report Stage at least some changes might be accepted. It was the most effective all opposition party effort of the 41st Parliament to oppose devastating legislative changes of the former prime minister and his administration. The Liberal, NDP, Green and Bloc MPs were unified in an effort to thwart the complete gutting of our environmental laws. Despite the protestations of experts and citizens alike, the bill passed without a single amendment.That fall, a second omnibus budget bill, C-45, destroyed the Navigable Waters Protection Act (NWPA).In 1882, the NWPA was enacted under our first prime minister, Sir John A Macdonald. The Act protected any and all navigable waters from obstruction. And, ‘navigable’ meant what it said; if a canoe could make its way through a watercourse, that watercourse was navigable. A 20092Harper omnibus bill, changed ‘navigable’ from a common sense definition to a political designation by the Minister of Transport.In 2012, omnibus budget Bill C-45 renamed the NWPA into the Navigation Protection Act. C-45 also moved to a list system that specifically named watercourses to be considered protected. More than 99% of Canada’s inland waters were not listed.Navigation is an exclusive head of power under section 91 of the Constitution. For First Nations, Inuit and Métis, navigation of remote unnamed rivers is a constitutionally protected right. But C-45 meant open season for bridges, dams and obstructions of all kinds. Yet, due to the fact that navigation is an exclusive head of federal power, no provincial government can protect rights of navigation.Fast forward five years and a wide gamut of reform options lay in front of the current Trudeau administration. The discussion paper sets the government’s path to rewriting the laws Harper gutted, repealed or replaced in 2012, albeit slimly.Instead of following the previous government’s focused approach – an even ‘laser-like’ focus for destroying environmental laws – the new Liberal government took a cumbersome approach to their promised restoration of environmental protections. It undertook four different, but somewhat over-lapping, consultation exercises. The two most robust were well-funded expert panels on Environmental Assessment and on the National Energy Board. For the Fisheries Act and Navigable Waters Protection Act (re-named the ‘Navigation Protection Act’), the reviews were undertaken by their respective parliamentary committees. I have provided written briefs to all committees and panels and, unsuccessfully, attempted to appear before them.Somehow, despite the excellent work by the Environmental Assessment and National Energy Board Expert Panels, and the Parliamentary Committee on Fisheries and Oceans, the Trudeau administration appears prepared to backtrack on its 2015 election promises.We are now in the 5th round of consultations on the legal and regulatory mechanisms discussed in this discussion paper, not including the comment periods that were occasionally placed on each consultation document. “Environmental and Regulatory Reviews: Discussion Paper” responds to all four of the streams of recommendations coming from two expert panels and two parliamentary committees. Given the immense quantity of material covered, the two month timeline for comments is unacceptably brief.With this document, things have gone from hopeful to very worrying indeed. The title of this 23 page discussion document is misleading. It is far more than a discussion of environmental and regulatory reviews. It deals with all of the changes discussed above – including habitat3protection in the Fisheries Act, the definition of ‘navigable’ for our inland waters, as well as the review processes.Having had hundreds of pages of detailed suggestions generated by the two expert panels, it is challenging to analyse the new discussion paper. It is heavy on graphics and arrows and bullet points, but provides no comprehensive response to the multi-million dollar efforts commissioned by this government.Furthermore, it was released quietly at the end of June – with a deadline of August 28, 2017. It appears inevitable that it will receive little attention, especially since it is drafted to read as though the consultative panels’ recommended reforms are being accepted. But on key issues, the changes wrought by Harper in 2012 will remain in place.The discussion paper points out that the various consultative bodies have received input from over 664 in-person witnesses, and 1,710 written submissions. What is so concerning is that the discussion paper does not reflect or comment upon the expert panel recommendations. Instead, it speaks in deeply ambiguous generalities. Yes, it is a discussion paper and thus requires broad strokes, but we are two years into the tenure of this administration, millions of dollars have been spent on a nearly unprecedented outreach and voters, as well as interested stakeholders and policy makers, can, and should, expect more from this government.In this submission, I attempt to do what the government should have done: set out the recommendations of the work the government itself commissioned and consider how they have been reflected in this document. This review is tabulated at the close of my submission. I have not included the recommendations of the Transport Committee as they are not the product of an adequate review. I will explain and comment on the report’s flaws. I urge the government to ignore the recommendations from the Transport Committee.For each of the recommendations from the expert panels and Fisheries Committee, I have looked through the discussion paper to find a corollary. Where parts of a recommendation have been adopted, I deem it a ‘partial’ completion. Where no recommendation can be found, or its corollary wholly insufficient, I have marked an ‘incomplete’.The majority of the consultative bodies the government commissioned to explore this topic over the past two years have done extraordinary work. They have made a number of very specific recommendations with respect to changes required to our Environmental Assessment regulatory framework. My hope is that the government heeds their advice.The bottom line for me, as a former practicing lawyer, as former chair of the Environmental Subsection of the Canadian Bar Association, and as current Member of Parliament and leader of4the Green Party of Canada, is that the government owes it to Canadians to ensure that our environmental law, assessment and regulatory regime is at least as effective as it was in 2006.Environmental/Impact AssessmentCanada is in desperate need of environmental regulatory reform. You do not need to look far to find evidence that Canada’s environmental laws are weak. In their submission to the Minister, a number of Professors of Environmental Law from the Universities of Calgary, British Columbia, Saskatchewan and Waterloo write “the reality on the ground is that Canada’s environmental laws are exceedingly weak in form and in their implementation.”This was not the case prior to 2006.Calls for deep and sustained reform are clear, meaningful and urgent. The Liberals’ consultative Environmental Assessment Expert Panel started off on the right foot in September of 2016. Former Commissioner for Environment and Sustainable Development, Johanne Gélinas, and her team of experts did an incredible job with their expert panel. Alongside the advice of the National Energy Board (NEB) Expert Panel, the key recommendation was clear: environmental assessment should be carried out by a single agency, empowered with quasi-judicial tribunal authority. There are a number of glaring exceptions to this core recommendation in the government’s discussion paper.While the discussion paper proposes many improvements to Harper’s version of EA, as found in CEAA 2012, it does so primarily in improving public engagement in the process. It emphasizes something of a return to past practice in early engagement, before a project plan is finalized, better public engagement and a much expanded role for indigenous consultation.The process described in the discussion paper remains much the same as CEAA 2012. The ambit of federal requirements to conduct environmental reviews appears to remain unacceptably narrowed.It seems the expert panel report has been largely ignored or rejected. The Environmental Assessment Agency is not to be converted to a quasi-judicial board with sole authority for conducting environmental assessment (EA). And while the discussion document says a “project list” will be developed so that the public will know what projects require a federal review, the paper gives no hint as to how the list will be developed, what criteria will be used, or whether it will revert to the pre-C38 framework.Not only do proposed reforms fail to be as strong as the original CEAA; they fail to be as clear or effective as the 1970s Guidelines Order, the Federal Environment Assessment and Review Process (EARP). EARP was an Order in Council that required federal reviews whenever a project5involved federal land, federal money or areas of federal jurisdiction. The legislated CEAA, introduced under former Prime Minister Mulroney and entering into force under former Prime Minister Chrétien, reduced those broad categories to federal land, federal money, and decisions under named pieces of federal law. Over time, the “law list” emerged, and not all federal decisions required review.CEAA 2012 removed most decisions from review, reducing the number of reviews conducted annually from thousands to dozens.Under the discussion paper it appears the federal ‘triggers’ for review will remain excessively curtailed.Worse, the discussion document maintains a role in environmental reviews for agencies that have no history, prior to 2012, in engagement in reviews. Experience since 2012 confirms these agencies are inappropriate and incompetent in conducting reviews. The National Energy Board, the Canadian Nuclear Safety Commission and the Off-Shore Petroleum Boards will continue to have a role in environmental assessments. It is actually worse than what Harper accomplished as the two Off-Shore boards – the Canada-Nova Scotia Off-Shore Petroleum Board and the Canada-Newfoundland and Labrador Off-Shore Petroleum Boards – had not had the required regulatory changes to start fulfilling their CEAA 2012 mandate. These boards are created under legislation that gives them the mandate to expand oil and gas development in Canada’s off-shore. This creates an inherent conflict of interest making them wholly compromised in any engagement in reviews, other than as a proponent.There was never any rationale or public policy defence offered for treating energy projects to a wholly different review process than mining, transportation or other sectoral developments. It is purely and simply a product of the Harper-era laser-like focus on getting energy projects approved more quickly than other projects. It has failed in getting projects approved quickly. In fact, the incompetence of the agencies involved is delaying projects and subjecting them to being struck down in the courts.This collection of agencies, empowered for the first time in C-38 to conduct environmental reviews, are now collectively described as “life-cycle regulators.” This is pure public relations mumbo-jumbo. It is a post-facto justification that Harper never dreamt up. Although the discussion paper says that environmental reviews will be conducted by a single government agency, the “life-cycle regulators” are still mandated to conduct environmental assessments of energy projects “as part of a single, integrated review process.”There is much that is appalling in the discussion paper, but ignoring the advice of two expert panels to keep the NEB, the CNSC and the off-shore boards involved in EA is simply unbelievable.6The NEB survives the dustbin?The most devastating critique of the National Energy Board comes from the government’s own expert panel. Panel members included significant representation from industry, including the head of the Canadian Pipeline Association. That group of experts concluded that the NEB has “fundamentally lost the confidence of many Canadians.” So much so that a key provision of that panel’s recommendation was to rename the National Energy Board to the ‘Canadian Energy Transmission Commission.’Yet, in the discussion paper, the NEB’s name survives, as do some of its most dysfunctional elements. There are 30 recommendations of the NEB expert panel that remain incomplete, completely untouched by the government’s recommendations. Particularly when it comes to engaging with Indigenous peoples and providing real mechanisms for stakeholders to hold government and proponents accountable, the discussion paper falls short.It is also deeply disappointing that the strong recommendation 5.2.3 for regional multi-stakeholder committees to review emergency preparedness plans with citizens and first-responders, was not addressed.Protecting Navigable WatersMore than 99% of Canada’s inland waters were not listed in the 2012 rewrite of the Navigable Waters Protection Act. The changes contained within that rewrite, in addition to other key measures of Harper’s omnibus Bill C-45, were the jumping off point for the massively effective Idle No More movement. The Liberals promised in 2015 to restore key protections to ensure no further erosion to Canadian environmental protections.Unlike the other sections of the government’s discussion paper, the consultative basis for the government’s proposals was distinctly poor. The Parliamentary Committee on Transport, Infrastructure and Communities completely missed the mark on its brief review of the Navigation Protection Act. It held only six meetings and heard from only 17 witnesses. Instead of recommending restoring protections to navigable waters across Canada, it recommended maintaining the Conservative approach from C-45, while making it easier to add specific waterways to the existing list. The committee also accepted a new, bizarre justification from Transport Canada for abandoning the protection of navigable waters: that the waterways listed in C-45 were the country’s “largest and busiest.” This is a new defense of what former Prime Minister Harper did and it doesn’t stand up to any scrutiny. The NWPA was never about managing navigation in busy ports; it was about the right of any Canadian to traverse navigable waters. It is especially unacceptable given that the Canadians most likely to be placing canoes and other watercraft in remote waters for hunting and fishing are indigenous. Thus two7constitutional responsibilities of the federal government – to protect the rights of navigation and the government’s fiduciary duty to indigenous peoples – are being flouted.It is abundantly clear that the combined effect of changes to CEAA, the Fisheries Act and the NWPA was for the purpose of speeding development. Many key waterways, including National Heritage Rivers were not listed. The winnowing down from every waterway that was navigable, to a handful of listed waterways was wholly indefensible. But the Transport committee accepted it; and now, tragic though it may be, it appears as though the government has, as well.The governments near wholesale adoption of the committee’s findings are extremely disappointing. West Coast Environmental Law gave the government two ‘Fs’ and an ‘incomplete’ on their assessment of the government’s response. The government must return to its role of protecting rights to navigation on all waters that are navigable, as that word was understood in the previous Navigable Waters Protection Act from 1882 until 2009.The Fisheries ActThe Parliamentary Committee on Fisheries and Oceans should be lauded for the thoroughness and keenness of their review and recommendations. It is largely due to their work that the government’s discussion paper adopts strong principles for reforming and strengthening the Fisheries Act.That said, there are many incomplete recommendations left for the government to introduce in legislation this fall. It is concerning that there is no reference to stronger regulation of the aquaculture industry or to protecting struggling fisheries stocks. In fact, I agree with Professors Olszynski et. al when they call for legislating the 1986 ‘no net-loss’ policy with respect to fish habitats.I am also disappointed the government appears to ignore the Committee’s recommendations to enhance enforcement, in particular to “reduc[e] reliance on project proponent self-assessment.”Too little, too late?Before the erasure of our environmental laws in 2012, our environmental assessment regime needed improvement. At each and every opportunity I have advocated for the same approach: swift action to restore the environmental assessment laws as they existed before 2006, followed by a comprehensive update to the laws as they were then. My concerns were that this precise sequence of events would occur: a long, drawn out process subject to the whims of the8political winds. Now, the solutions described by this discussion paper are like shoddy construction built on a cracked foundation: fundamentally unworkable.I understand that repairing damage to legislation can be slow, painful and potentially futile. But there have been files on which the Trudeau administration has found success in rewriting, and thereby successfully updating, laws that Harper repealed or gutted. Unfortunately, this particular rewrite of environmental legislation looks to have sunk in a sea of consultations.That said, we have the time to repair the process and restore adequate protections. The work of the expert panels and the millions of dollars spent in those exercises need not be wasted. The government can introduce legislation this fall that contains bold recommendations to re-envision Environmental Assessment in Canada for a new generation. To accomplish this, the government must be capable of a hard reset on the National Energy Board, and a complete rework of the Navigation Protection Act to bring back the automatic protections of all navigable waters.Once again, the bottom line is clear: The Trudeau administration must ensure that the rubric of environmental laws, rights of navigation, protections for our fisheries and regulation of energy transmission be at least as effective as those existing in 2006. If this discussion paper is not massively over-hauled, the devastating changes wrought in C38 and C45 will remain largely in place.Elizabeth May, O.C.Member of ParliamentSaanich – Gulf-IslandsLeader of the Green Party of Canadacc:The Honourable Jim Carr, P.C., M.P.Minister of Natural ResourcesThe Honourable Catherine McKenna, P.C., M.P.Minister of Environment and Climate ChangeThe Honourable Dominic Leblanc, P.C., M.P.Minister of Fisheries and Oceans and the Canadian Coast GuardThe Honourable Marc Garneau, P.C., M.P.Minister of Transport9Expert Panel on EA Discussion Paper2.1.1 The Panel recommends that federal interest be central in determining whether an IA should be required for a given project, region, plan or policy.2.1.2 The Panel recommends that federal IA should begin with a legislated Planning Phase that, for projects, occurs early in project development before design elements are finalized.”Requiring a new early planning phase led by proponents with clear direction from the government” “A new requirement for an early planning and engagement phase, led by proponents with clear direction from government, to support better- designed project proposals and more effective assessments and to seek consensus on the project assessment process”Partial – while the Panel makes it clear the Planning Phase should be part of the federal IA, the wording of the “proponent-led” discussion paper suggestion, as well as the diagram on p. 8 suggest the early planning phase the government envisions would not be as substantive.102.1.3 (A) The Panel recommends that sustainability be central to IA. The likelihood of consequential impacts on matters of federal interest should determine whether an IA would be required. (B) The Panel recommends that federal IA decide whether a project should proceed based on that project’s contribution to sustainability.Incomplete – There is not one mention of the word sustainability in the document2.1.4 The Panel recommends that IA legislation require the use of strategic and regional IAs to guide project IA.”Conducting strategic assessments that explain the application of environmental frameworks to activities subject to federal oversight and regulation, starting with one for climate change” “Regional assessments to guide planning and management of cumulative effects (e.g. biodiversity and species at risk), identify the potential impacts on the rights and interests of Indigenous peoples, and inform project assessments”Complete112.2.1 The Panel recommends that co-operation be the primary mechanism for co-ordination where multiple IA processes apply.”Developing cooperation agreements with interested jurisdictions (provinces, territories, Indigenous) and support the objectives of “one project – one assessment,” while respecting their jurisdiction.”Complete2.2.2 The Panel recommends that substitution be available on the condition that the highest standard of IA would apply.”Retaining legislative provisions to allow substitution with provinces and territories where there is alignment with federal standards”Partial – explicitly states that substitution will occur where there is alignment with federal standards, not necessarily, as the Panel recommends, “that the highest standard of IA will apply”2.3.1 The Panel recommends that Indigenous Peoples be included in decision-making at all stages of IA, in accordance with their own laws and customs.”Developing new provisions to enable substitution with Indigenous governments.” Ensuring that the process better recognizes Indigenous jurisdiction, laws and practices.” “Increasing flexibility to allow the Government of Canada to defer to or harmonize with environmental assessment processes created pursuant to Indigenous governments”Partial – the Panel was forceful: “Indigenous Peoples be included in decision-making at all stages, in accordance with their own laws and customs.” Substitution with Indigenous governments is laudable, but does not address that Indigenous Peoples are excluded from most IAs.122.3.2 (A) The Panel recommends that IA processes require the assessment of impacts to asserted or established Aboriginal or treaty rights and interests across all components of sustainability. (B) The Panel recommends that any IA authority be designated an agent of the Crown and, through a collaborative process, thus be accountable for the duty to consult and accommodate, the conduct of consultation, and the adequacy of consultation. The fulfilment of this duty must occur under a collaborative framework developed in partnership with impacted Indigenous Groups.“Direct engagement between Crown representatives and Indigenous peoples to discuss and understand potential project impacts to facilitate early planning and issue identification.” “Indigenous peoples want improvements in consultation processes, including clear accountabilities and direct involvement from the Crown.” “Clarifying roles for consultation and accommodation in regulatory processes to ensure the honour of the Crown is respected.”“Establishing a single government agency responsible for guiding and conducting federal assessments and coordinating Crown consultations for those assessments.”Partial – No mention of the IA authority being designated an agent of the Crown and thus accountable for the duty to consult. Most explicit mention is that the single government agency be “responsible for … coordinating Crown consultations for those assessments.”2.3.3 (A) The Panel recommends that any IA authority increase its capacity to meaningfully engage with and respect Indigenous Peoples, by improving knowledge of Indigenous Peoples and their rights, history and culture. (B) The Panel recommends that a funding program be developed to provide long-term, ongoing IA capacity development that is responsive to the specific needs and contexts of diverse Indigenous Groups. (C) The Panel recommends that IA-Incomplete – absolutely no mention of increased funding to improve knowledge of Indigenous Peoples and their rights.13specific funding programs be enhanced to provide adequate support throughout the whole IA process, in a manner that is responsive to the specific needs and contexts of diverse Indigenous Groups.2.3.4 (A) The Panel recommends that IA legislation require that Indigenous knowledge be integrated into all phases of IA, in collaboration with, and with the permission and oversight of, Indigenous Groups. (B) The Panel recommends that IA legislation confirm Indigenous ownership of Indigenous knowledge and include provisions to protect Indigenous knowledge from/against its unauthorized use, disclosure or release.”Consideration and protection of Indigenous knowledge, alongside science and other evidence,”“Co-develop tools, guidance, and capacity with Indigenous peoples to better support and systematically consider Indigenous knowledge.” “Protect the confidentiality of Indigenous knowledge where appropriate (e.g. sacred site locations).”Partial142.4.1 The Panel recommends that IA legislation require that IA provide early and ongoing public participation opportunities that are open to all. Results of public participation should have the potential to impact decisions.“Open opportunities for meaningful public participation in assessments and regulatory reviews.” “Eliminating the ‘standing’ test previously used by the National Energy Board for those wishing to participate in assessments.Partial – While the panel emphasized again and again the early planning phase, the government here instead chooses to require a proponent led process ‘with clear direction from the government’.2.4.2 The Panel recommends that the participant funding program for IA be commensurate with the costs associated with meaningful participation in all phases of IA, including monitoring and follow-up.“Improving participant funding programs for Indigenous peoples and the broader public to streamline applications and expand eligible activities.Partial – mention of participant funding in the IA section of the discussion paper does not include commitment to ‘all phases’ or ‘meaningful.’2.4.3 The Panel recommends that IA legislation require that IA information be easily accessible, and permanently and publicly available“Increasing user-friendly on-line public access to project information generated during environmental and regulatory reviews, including follow-up, monitoring, compliance and enforcement.”“Providing easy, on-line access so that Canadians can track companies’ progress as they address the conditions required to advance their project.”Partial – no mention of statutory requirement152.5.1 (A) The Panel recommends that IA legislation require that all phases of IA use and integrate the best available scientific information and methods. (B) The Panel recommends that IA legislation require the development of a central, consolidated and publicly available federal government database to house all baseline and monitoring data collected for IA purposes. (C) The Panel recommends that IA legislation provide any IA authority with power to compel expertise from federal scientists, and to retain external scientists to provide technical expertise as required. (D) The Panel recommends that any IA authority have the statutory authority to verify the adequacy of IA studies across all pillars of sustainability.”Reinforcing rigour through peer reviews of science and evidence in the assessment phase.” much weaker than the EA Panel recommendation, especially given the immense opportunity to allow for the compelling of technical expertise as required.Partial2.5.2 The Panel recommends that IA integrate the best evidence from science, Indigenous knowledge and community knowledge through a framework determined in collaboration with Indigenous Groups, knowledge-holders and scientists.”Consideration and protection of Indigenous knowledge, alongside science and other evidence,”“Reinforcing rigour through peer reviews of science and evidence in the assessment phase.”Partial2.5.3 The Panel recommends that IA legislation require that any IA authority lead the development of the Impact Statement.Incomplete162.5.4 The Panel recommends that IA decisions reference the key supporting evidence they rely upon, including the criteria and trade-offs used to achieve sustainability outcomes.“Greater transparency on reasons for environmental assessment and regulatory decisions and timely feedback on how public input was considered.”Incomplete – key here is a requirement to demonstrate how evidence supports sustainability outcomes.3.1.1 (A) The Panel recommends that a single authority have the mandate to conduct and decide upon IAs on behalf of the federal government. (B) The Panel recommends that the IA authority should be established as a quasi-judicial tribunal empowered to undertake a full range of facilitation and dispute resolution processes.”Establishing a single government agency responsible for guiding and conducting federal assessments and coordinating Crown consultations for those assessments”Partial – no mention of reinforcing the quasi-judicial, tribunal nature of the IA authority.173.1.2 The mandate of the Impact Assessment Commission would be to: (A) Implement government IA policy and provide guidance for IA at the federal level covering Strategic IA, Regional IA and Project IA; (B) Conduct or manage IAs in an effective, timely and predictable manner that results in clear, evidence-based decisions; (C) Provide incentives and flexibility in the IA process to enable effective co-ordination with other jurisdictions; (D) Ensure the principles of the United Nations Declaration on the Rights of Indigenous Peoples are reflected in IA; (E) Ensure impacts on Aboriginal and treaty rights are considered and assessed in the IA process and ensure the duty to consult and accommodate is appropriately fulfilled by the Commission; (F) Ensure decisions are based on reliable independent science, Indigenous knowledge and community knowledge; (G) Ensure that the process is transparent and that public reporting of information occurs at all phases of the IA, including the rationale for decisions made and the consideration of comments received; (H) Maintain both a public registry of IA information for public participation and a searchable database for all scientific data created for IA purposes; (I) Ensure the public is engaged meaningfully at each step of the assessment process, from the planning stage through to the post-IA stage of monitoring and follow-up; (J) Ensure the process is, and is perceived to be, fair; (K) Ensure that throughout”Indigenous Peoples want a renewed relationship with the federal government, consistent with the Constitution and the UNDRIP.”Partial18IA, Commissioners support consensus-building but also provide timely dispute resolution and decision-making to advance IA objectives; (L) Ensure fiscal discipline for all IAs; (M) Ensure compliance and adequate monitoring and follow-up; (N) and Monitor the quality of IAs and create a culture of continuous improvement.193.2.1 (A) The Panel recommends that IA legislation define a “project” to be a physical activity or undertaking that impacts one or more matters of federal interest. (B) The Panel recommends that IA legislation require project IAs when a project is on a new Project List, a project not on the new List is likely to have a consequential impact, or the IA authority accepts a request.Incomplete – no elaboration on the statutory definition of project.3.2.2.1 (A) The Panel recommends that all phases of project IA be conducted through a multi-party, in person engagement process. (B) The Panel recommends that, for project IA, the outcome of the Planning Phase would be a conduct of assessment agreement.Incomplete – the discussion paper is virtually silent on creating a Planning Phase.3.2.2.2 The Panel recommends that the studies outlined in the conduct of assessment agreement be completed in the Study Phase. The IA authority would lead an assessment team accountable for preparing the Impact Statement, informed by these studies.Incomplete – no mention of how the IA authority would prepare the Impact Statement.203.2.2.3 The Panel recommends that a Decision Phase be established wherein the IA authority would seek Indigenous consent and issue a public decision statement on whether the project provides an overall net benefit to Canada across the five pillars of sustainability for present and future generations.”Early and regular engagement and participation based on recognition of Indigenous rights and interests from the outset, seeking to achieve free, prior and informed consent through processes based on mutual respect and dialogue.”Partial – mention of early engagement and ‘FPIF’ but no establishment of decision phase.3.3.1 The Panel recommends that IA legislation contain a formal process to amend conditions.”Explore a mechanism to amend project conditions to support the integration of adaptive management and technological advances.”Complete – though worth adding that the discussion paper creates a distinct use-case for amendments whereas the panel does not.3.3.2 (A) The Panel recommends that IA legislation ensure sustainability outcomes are met through mandatory monitoring and follow-up programs with minimum standard requirements common to all project IAs. (B) The Panel recommends that Indigenous Groups and local communities be involved in the independent oversight of monitoring and follow-up programs established by the IA authority. (C) The Panel recommends that all monitoring and follow-up data, including raw data, results and any actions taken to address ineffective mitigation, be posted on a public registry.”Inclusive monitoring and compliance activities, so that life-cycle regulators and permitting departments work closely with Indigenous peoples, communities and landowners.”Partial – lots remaining here from a thorough recommendation: Indigenous Group oversight is supposed to be independent, and oversight and follow-up programs are established by the IA authority, not life-cycle regulators.213.3.3 (A) The Panel recommends that IA legislation provide a broad range of tools to enforce IA conditions and suspend or revoke approvals. (B) The Panel recommends that the results of inspections be promptly available to the public. An annual report of compliance with conditions for all projects should be published in a public registry. (C) The Panel recommends that IA legislation authorize the IA authority to carry out compliance and enforcement activities with other jurisdictions, so long as the results of such activities are no less available to the public than the results of activities by the IA authority.Incomplete – no mention of public registry other than of ‘open data’ and ‘transparency’3.4.2 The Panel recommends that the IA authority be required to develop an estimate of the cost and timeline for each phase of the assessment and report regularly on the success in meeting these estimates.”working with industry to define activities that should be cost-covered”Incomplete – certainly not a fulsome cost-analysis and reporting that the panel asked for.223.5 Regional IA may address five key objectives: (A)To streamline, inform and improve project IA; (B) To gather information about and improve management of cumulative impacts affecting the sustainability of matters of federal interest; (C) To inform federal decisions on future projects in the region; (D) To build trust and relationships with Indigenous Groups; and (E) To set a preferred direction and strategy for achieving sustainability in a region through the assessment of alternative development scenarios.”Regional Assessments to guide planning and management of cumulative effects (e.g. biodiversity and species at risk), identify the potential impacts on the rights and interests of Indigenous peoples, and inform project assessments.”Complete – though missing ‘sustainability’, which seems like a clear objective of regional IAs.3.5.1 (A) The Panel recommends that IA legislation require regional IAs where cumulative impacts may occur or already exist on federal lands or marine areas, or where there are potential consequential cumulative impacts to matters of federal interest. (B) The Panel recommends that IA legislation require the IA authority to develop and maintain a schedule of regions that would require a regional IA and to conduct those regional IAs.No mention of legislative requirements for regional IAs.Incomplete3.5.2 The Panel recommends that a regional IA establish thresholds and objectives to be used in project IA and federal decisions.No mention of thresholds and objectives for project IAs.Incomplete233.6.1 The Panel recommends that IA legislation require that the IA authority conduct a strategic IA when a new or existing federal policy, plan or program would have consequential implications for federal project or regional IA.”Conducting Strategic assessments that explain the application of environmental frameworks to activities subject to federal oversight and regulation, starting with one for climate change.Partial – definition is much, much more vague than in the Panel report.3.6.2 The Panel recommends that strategic IA define how to implement a policy, plan or program in project and regional IA.”a strategic assessment of the Pan-Canadian Framework would provide guidance on how to determine ho life-cycle GHG emissions associated with individual projects are assessed” “conducting strategic assessments that explain the application of environmental frameworks to activities subject to federal oversight and regulation, starting with one for climate change.”Partial – hinted at, but no specific definition of how a strategic IA would work3.7 The Panel recommends that Canada lead a federal strategic IA or similar co-operative and collaborative mechanism on the Pan-Canadian Framework on Clean Growth and Climate Change to provide direction on how to implement this Framework and related initiatives in future federal project and regional IAs.”Developing and strengthening national environmental frameworks to inform regional assessments (e.g. Pan-Canadian Framework for Clean Growth and Climate Change; Air Quality Management System)”Complete24Expert Panel on NEB EA Discussion Paper Complete/Partial/Not Complete1.1.1 The Department of Natural Resources, in partnership with Environment and Climate Change Canada (and any other relevant players within the federal house), provinces and territories, in Consultation with Indigenous peoples, and with broad stakeholder engagement, publish and update on a reasonable schedule a formal Canadian energy strategy which plots a course for the future of energy in Canada, balancing environmental, social, and economic objectives.Incomplete1.1.1 The Department of Natural Resources, in partnership with Environment and Climate Change Canada (and any other relevant players within the federal house), provinces and territories, in Consultation with Indigenous peoples, and with broad stakeholder engagement, publish and update on a reasonable schedule a formal Canadian energy strategy which plots a course for the future of energy in Canada, balancing environmental, social, and economic objectives.Incomplete251.2.1 That the federal government should perform a high level of inter-governmental coordination on all energy-related matters in order to realize its vision of the future of energy in Canada, fully respecting the roles of provincial, territorial, and Indigenous governments. Furthermore, we recommend that this approach include, to the greatest extent possible, the engagement of other stakeholders, to create a united front for making Canada’s energy vision, and related emission reductions, a reality.Incomplete1.3.1 The government establish an independent Canadian Energy Information Agency, reporting to the Minister of Natural Resources, whose mandate would include collection and dissemination of energy data, as well as the production of an annual public report on Canada’s energy system, and quantitative analysis of the alignment with Canadian energy strategy goals.Developing a separate model to deliver timely and credible energy information to CanadiansPartial – “separate” does not necessarily mean independent, and no mention of integration with energy strategy goals.261.4.1 The enabling legislation of the CETC be amended to provide for the Minister of Natural Resources – based on advice from a whole-of-government perspective – to make a public recommendation to the Governor in Council of whether a preliminary major project proposal is in the national interest, on the basis of Consultation with Indigenous peoples (supported by a new Indigenous Major Projects Office described in Theme 2, below), strategic-level assessment, and engagement with stakeholders. The Governor in Council would have authority for the final national interest determination.Incomplete1.4.2 In addition, we recommend that a more complete definition of the national interest, inclusive of Indigenous Consultation, environmental, economic, and social factors, be enshrined in regulation and updated on a reasonable schedule to keep pace with societal change, and that enabling legislation of the regulator be amended to make mandatory the consideration of the national interest so defined.“Changing the wording to determining public interest to explicitly include environment, safety, social and health considerations”Partial – this explicitly excludes incorporating indigenous interests into the public interest component and makes no mention of updating it on a regular basis, or making consideration of it mandatory.271.5.1 Enshrined in the CETC Act, a modernized National Energy Board, hereafter known as the Canadian Energy Transmission Commission (CETC) will have the mandate and authority for the licensing of transboundary pipeline and transmission line projects, including the imposition of specific conditions on project proponents. Major projects must first be determined to align with the national interest by the Governor in Council, before any licensing hearing.Incomplete1.5.2 We further recommend for major and significant projects that the CETC exercise this authority through Joint Hearing Panels which integrate CEA Agency-led project-level Environmental Assessments and the CETC decision making process to achieve the dual goals of delivering a single regulatory review process (not parallel technical and environmental review processes), and assuring that all federally- mandated Environmental Assessments are conducted in a consistent, high quality manner (under the authority of the CEA Agency). Five person Joint Hearing Panels – with at least one Indigenous member – would be comprised of two Commissioners from the CETC, two from the CEA Agency, and a final independent Commissioner.“Increasing Indigenous representation among the Board and Hearing Commissioners and requiring expertise in Indigenous knowledge”Partial – this recommendation should really be split into multiple, because the force of it is to require dual agency, single process assessments with CEAA doing an environmental review.281.6.1 The Canadian Energy Transmission Commission’s enabling legislation should have provisions to review and strengthen its capacity with respect to transmission lines, with a particular focus on building capacity for engagement with Provinces (under whose authority new generation projects will take place), and the integration of new forms of (renewable) energy into the national grid.“Adding provisions to provide authority to regulate renewable energy projects and associated power lines in offshore areas that are under federal jurisdiction”Partial – Panel recommendation is for authorization to integrate renewables into the grid and regulate transmission lines, the discussion paper flips these, instead saying provide authority to regulate energy projects and the very specific ‘associated power lines in offshore areas’2.1.1 Indigenous peoples should have a nation-to-nation role in determining Canada’s national energy strategy, and we look to the Minister of Natural Resources to define how this commitment can be met within the context of the decisions and recommendations of the Working Group of Ministers on the Review of Laws and Policies Related to Indigenous Peoples.Incomplete292.2.1 The government fund an Indigenous Major Projects Office, under the governance of Indigenous peoples (determined as they see fit). Responsibilities of this Office would include but not limited to defining clear processes, guidelines, and accountabilities for formal Consultation by the government on energy transmission infrastructure, regulatory processes and assessing compliance with those guidelines. In addition, the Office would define and disseminate best practices, including coordinating and/or supporting Environmental Assessments and regulatory reviews, to help interested Indigenous communities enhance the quality of their participation in formal Consultation and engagement processes.“Strengthening the approach for Indigenous peoples to build capacity for participation in processes and help coordinate Crown consultations”Partial – includes building capacity but no mention of the specific Major Projects office or trying to enhance quality of participation.2.2.2 The CETC Act should empower the CETC to engage in discussions with Indigenous communities to enhance and facilitate the meaningful participation of Indigenous communities in the strategic and licensing phases of projects.Incomplete302.3.1 That the Minister of Natural Resources, working under the framework defined by the Ministerial Working Group, and in partnership with Indigenous peoples, define authorities for Crown consultation in the strategic phase of a project review, in the detailed assessment and regulatory decision making phase of a project review, and for the oversight of CETC operations on an ongoing basis. This must include clear guidance regarding who may or must be physically present on behalf of the Crown during Consultations, not just overall authorities.Incomplete2.4.1 The CETC and the Minister of Natural Resources should move to produce guidelines for early engagement, that allow industry and Indigenous peoples to communicate more freely and without prejudice to outstanding claims of right, or subsequent project reviews. This would include pre-filing information sessions, town halls with proponents under the oversight of the regulator, and more.Incomplete2.5.1 That the Crown retains flexibility in its processes, reflecting the principle that each Indigenous nation has an independent relationship with Canada. In addition, we encourage the government to do more to meet with Indigenous peoples on their ownIncomplete31terms, and in their own places, to the greatest extent possible.3.1.1 Enshrined in legislation, authority for the Governor in Council to make the determination of whether or not a major project is in the national interest, based on a public report and recommendation from the Minister of Natural Resources. Furthermore this phase, from preliminary project filing to Governor in Council Decision, should typically happen within 12 months, with three months for GIC decision. The purpose of this phase of the process would be to determine whether a major project may proceed to a detailed project review.Incomplete3.2.1 The enabling legislation of the Canadian Energy Transmission Commission should establish it as an independent, quasi-judicial body, with full authority to approve or deny major projects – based on technical criteria, detailed environmental assessment and project-specific conditions including social, economic, lands, and municipal interests – that have passed a Governor in Council review. We further recommend that detailed project reviews of major projects typically be concluded within 2 years fromIncomplete32time of filing, to allow adequate time for meaningful Consultation and engagement.3.2.2 We also recommend that Section 58(1) of the NEB Act be repealed, and that the Act be amended to provide authority, mechanisms, and specific criteria for three classes of review: 1. Projects of national consequence, which require review by the Governor in Council; 2. Projects of significance which require a full Joint Panel review (but not review by Cabinet); and 3. Smaller activities which require review and approval, but not a full Joint Panel review. Such criteria should relate to a project’s risk and impact, not an arbitrary distance criterion.Incomplete333.2.3 Enshrined in the CETC Act, moreover we recommend that processes and authorities for export/import permits and electric transmission line reviews be harmonized, to the greatest extent possible, with those pertaining to pipelines, to afford all review processes the same level of transparency and integrity.“Providing authority to make final decisions on certain functions such as import/export licenses, and variances or transfers to certificates and licenses”Incomplete343.2.4 Enshrined in the CETC Act, in order to ensure clear accountability for permitting authority, the CETC should not exercise any permitting authority delegated to it by the federal entities of Fisheries and Transport Canada (e.g. permitting under the Fisheries or Navigation Protection acts) and any existing agreement to exercise such authorities on their behalf should be abrogated.Incomplete3.2.5 Lastly, we recommend that the government enshrine in legislation two core principles: that no regulated activity shall proceed without proper approval, and that all regulated activities undergo environmental assessment commensurate with the scale and risk of the proposed activity.Incomplete3.3.1 The enabling legislation of the Canadian Energy Transmission Commission should require that the CETC be governed by a board of directors whose sole responsibility is strategy and oversight of the Commission’s activities, while hearing panels and other regulatory decisions would be the purview of Hearing Commissioners responsible for executing Commission decision-making responsibilities.“Creating a corporate-style executive board to lead and provide strategic direction to the NEB organization”Incomplete353.3.2 We further recommend that the Commission be managed by a Chief Executive Officer who is neither a board member nor a Hearing Commissioner, nor the Chair of the Board (with relevant amendments to the current NEB Act as required). Also, the CETC Act should ensure that the Chair does not have the discretion to undertake measures to ensure that the time limit of a project review is met, such as removal of commissioners dealing with an application.“Separating the roles of Chief Executive Officer and Chairperson of the Board, currently held by the same person”Partial – the CEO should also explicitly no longer be a hearing commissioner and, crucially, that the second half of the recommendation also be included.3.3.3 Finally, we recommend that the government include a plain language report on and explanation of the CETC cost recovery funding model in CETC annual reports, and that the funding model be included in the list of issues for possible consideration by Regional Multi-Stakeholder Committees.Incomplete363.4.1 The CEO of the CETC (or NEB in the immediate term) should be responsible for establishing a competency matrix for hearing panel members, which represents a broad array of skills, experience, and backgrounds, and for ensuring that each hearing panel contains a cross-section of those competencies. Because Indigenous knowledge is essential to inform sound decision-making, and to enable real nation-to- nation relationships we further recommend that every joint hearing panel consist of at least one Indigenous member with extensive experience with Indigenous issues and worldview. Further, the competency matrix should be subject to Consultation and engagement, made public, and updated on a regular basis.“Enhancing the diversity of the Board and Hearing Commissioners”Partial – this recommendations doesn’t just call for increased indigenous representation and a diverse board, but in fact recommends requiring one indigenous hearing commissioner per joint panel, and that the ‘competency matrix’ is open to public consultation.373.4.2 We further recommend that the NEB Act be amended to remove the requirement that Board members (Hearing Commissioners in our modernized vision) live in the area of the organization’s headquarters, and that the future office of the Board of Directors be based in Ottawa.“Maintaining the National Energy Board in Calgary, while eliminating the residency requirement for the Board and Hearing Commissioners.”Partial – removing the residency requirement, but keeping the Board in Calgary when the panel explicitly recommended moving it to Ottawa.3.4.3 Enshrined in the CETC Act, we recommend that the CETC affirm the current NEB conflict of interest rules, including industry cooling and post-employment provisions, to reduce the risk of real or apparent conflict of interest. In addition, the CETC conflict of interest policy should provide for the revocation of a Director or Hearing Commissioner appointment in the event of serious real or perceived conflict of interest that is further bolstered by guidelines or regulations that can be updated periodically.Incomplete383.4.4 Finally, we recommend the establishment of an Elders External Advisory Council, in Consultation with Indigenous peoples, charged with advising the Board, CEO, and Hearing Commissioners on Indigenous issues, as well as reviewing CETC practices, and helping to ensure high quality inclusion and interpretation of traditional knowledge.Incomplete4.1.1 Standing tests be repealed as a criterion for input into project hearings and operational oversight, and the CETC Act should be adapted to allow for a wider array of input (from simple letters to the provision and testing of evidence).“Increasing public participation opportunities in technical hearings, including enhancing the support available to all participants to help them navigate regulatory processes”Partial – no mention of specific steps to increase public participation opportunities. Though does make mention of enhancing ‘support available’ but far cry from the specific recommendations below (see below: 4.3.1)4.1.2 Furthermore, it is recommended that the CETC Act provide a provision for all Canadians be permitted to submit a Letter of Comment to the CETC for consideration during its deliberations.Complete394.2.1 The government should amend enabling legislation of the CETC to empower the regulator and demand that it performs its quasi-judicial role to a high standard, but also that its processes are designed and implemented in such a way as to maximize the inclusion of all parties. The regulator should examine and reform its processes to achieve a higher degree of engagement and flexibility, toward the outcome that the public feel welcome and to enable the participation of interested parties who may not be experts in legal process.Incomplete4.2.2 In addition, tests of standing should be abolished, and every interested party should have a reasonable opportunity to participate commensurate with their contribution to the process. Finally, Letters of Comment from any party should be permitted without qualification.Complete4.3.1 Enshrine the enabling legislation of the CETC a Public Intervenor Office, based on successful models from other jurisdictions, to represent the interests and views of parties who wish to use the service, and to coordinate scientific and technical studies to the extent possible.Incomplete404.4.1 CETC legislation establish Regional Multi-Stakeholder Committees, open to all interested parties, with a mandate to review all aspects of the regulatory cycle and operational system (for example, issues like: emergent environmental risks, monitoring performance, socio-economic impacts of regulated activities, and more).Incomplete4.5.1 The government continue to reform its online presence, driven by the priorities of its users, not the regulator. We further recommend the creation of a visible and accessible online public outreach office charged with engaging citizens and helping them to navigate the many processes and documents that can represent a barrier for participation in the regulatory system.Partial5.1.1 That the CETC regulate and clearly communicate its standards and approach to ensuring compliance with standards and expectations for management systems, and water protection specifically, in a way that can be understood by non-specialists, and that it should engage its (proposed by us) Regional Multi-Stakeholder Committees to identify specific elements for review and revision, as appropriate.Incomplete5.1.2 We further recommend that the CETC explain in plain language how rules for liability work, how the relative monetary amounts are calculated, and consider a public review of the surety bond amount to ensure that it adequatelyIncomplete41addresses risk as intended.5.2.1 The government immediately improve transparency of monitoring information, incident reports, and follow-up, including the provision of better online tools to help all citizens interact with this information.“Making information available to the public online, including incident reports and follow-up data, in a way that is easily understood”Complete5.2.2 That the government enter into formal agreements with Indigenous nations who wish to participate, in order to deliver local Indigenous energy infrastructure monitoring programs which are considered as a vital input to existing monitoring tools and systems.“Expanding the role of Indigenous peoples in the monitoring of pipeline and other energy infrastructure from construction to decommissioning”Partial – no mention of formal agreements, or incorporating indigenous nations as ‘vital input’5.2.3 We further recommend that Regional Multi-Stakeholder Committees review emergency preparedness plans with citizens, first responders, and other groups, to ensure their completeness, and to recommend any gaps for further action to be addressed by the CETC.Incomplete5.3.1 That the CETC publish regular reports – written in plain language, not jargon, without sacrificing accuracy – on incidents and compliance actions, that will allow any interested party to know what happened, why, and what was done in response.Incomplete425.4.1 That the CETC Act would enable the creation of Regional Multi-Stakeholder Committees. The intention in operation is that these Committees be formally integrated into the CETC’s management and continuous improvement systems, allowing all participating parties to assess aspects of the CETC’s practices and outcomes, and make recommendations for improvements.Incomplete6.1.1 The CETC Act should establish a Landowners Ombudsman to review and make recommendations on improving relationships with landowners, provide advice and best practices on how to navigate processes, enable better mediation, and potentially administer a fund so that landowners can access relevant legal advice.“Introducing an advocate to support landowners in regulatory processes.”Partial – an advocate would seemingly have some of these responsibilities but quite vague given the specificity of the NEB report’s recommendations. No mention of administering a legal fund.6.1.2 We further recommend that CETC Hearing Commissioners take on the alternative dispute resolution, with support from alternative dispute resolution staff as appropriate, and adjudication functions, and reform the current process to streamline it significantly, and make public the results of adjudication decisions.“Establishing alternatives to some formal adjudicative processes, such as appropriate dispute resolution”Partial – no mention of making these decisions public.436.2.1 That the CETC work with the provinces and territories to enact more rigorous standards for land agents, up to and possibly including a formal certification program, and that it conduct more regular oversight of this function. Such standards should include strict protocols for first contacts with landowners, should require that industry fully explain expected impacts on the land and how the proposed agreement works, and should enact a mandatory cooling off period between first contact and signing, to ensure full consideration of the agreement.Incomplete6.2.2 We recommend that the CETC establish clear protocols for communication to ensure that landowners are adequately informed of operators exercising rights of entry, in non-emergency circumstances. This would include resolving issues around right of entry in cases of disputes that have not yet been settled.Incomplete44Fisheries Committee Discussion Paper Complete/Partial/Not CompleteThat section 35(1) of the Fisheries Act return to its wording as of 29 June 2012 which reads: “No person shall carry on any work, undertaking or activity that results in the harmful alteration or disruption, or the destruction, of fish habitat.” Remove the concept of “serious harm” to fish from the Act.“Prohibit the harmful alteration, disruption or destruction (HADD) of fish habitat without approval.CompleteThat Fisheries and Ocean Canada take an ecosystem approach to protection and restoration of fish habitats so that the entire food web is preserved for fish by: Adopting key sustainability principles; Protecting the ecological integrity of fish habitat; and Protecting key areas of fish habitat.Foster partnering for activities that conserve and enhance fish habitat.Incomplete – specifically uses conserve and enhance rather than the committee’s protect and restoration and doesn’t explicitly mention ecological integrity.Any revision of the Fisheries Act should review and refine the previous definition of HADD due to the previous definition’s vulnerability to being applied in an inconsistent manner and the limiting effect it had on government agencies in their management of fisheries and habitats in the interest of fish productivity.“Identify measures to avoid and mitigate harm to habitat, including through the development and enforcement of standards and codes of practice.”Partial – mention of development of standards and codes of practice but not guided along the principle of ‘strengthening’ HUDD’s definition.That Fisheries and Oceans Canada emphasize protection for priority habitats that contribute significantly to fish production within the context of section 6 of the Act.“Identify measures to avoid and mitigate harm to habitat, including through the development and enforcement of standards and codes of practice”Complete45That Fisheries and Oceans Canada fund more research dedicated to ecosystem science.No specific funding committed to establishing more eco-system based science.IncompleteThat protection from harmful alteration or disruption, or the destruction, of fish habitat be extended to all ocean and natural freshwater habitats to ensure healthy biodiversity.No mention of freshwater or ocean habitats.IncompleteTo protect fish habitat from key activities that can damage habitat, such as destructive fishing practices and cumulative effects of multiple activities.“Incorporate modern resource management and planning principles such as cumulative effects, the precautionary approach, and ecosystem-based management”Partial – no mention of overfishing/destructive fishing practicesThat Fisheries and Oceans Canada put sufficient protection provisions into the Fisheries Act that act as safeguards for farmers and agriculturalists, and municipalities.IncompleteThat Fisheries and Oceans Canada work with the farm community and rural municipalities to provide incentives and expert advice to conserve and enhance fish habitat and populations and utilize the enforcement approach as a last resort.”Ensure meaningful and ongoing engagement and participation in planning and integrated management.” “Support early and broad engagement in planning and management activities” “Collaborate with partners to identify key restoration and rebuilding priorities”Partial – lots of vague hints at collaboration, but no specific mention of working with rural communities, nor incentives/expert advice to conserve and enhance fish habitat and populations.46That permitting be expedited to allow for works that involve the restoration of damaged infrastructure and emergency works to protect people and communities.IncompleteThat the Fisheries Act should include a clear definition of what constitutes fish habitat.”Clarify when Fisheries Act authorizations are needed for project and when they are not.”Incomplete – defining authorizations rather than habitat.47That Fisheries and Oceans Canada assess and improve communications between fisheries stakeholders and the Department’s upper management and decision makers.”Strengthen federal leadership, cooperation and communication with all orders of government, in all regions”Partial – misses the mark because does not mention stakeholders, only other governments.That communication within and between all levels of Fisheries and Oceans Canada be improved.IncompleteThat Fisheries and Oceans Canada clearly define the parameters of what is considered a violation of the Fisheries Act.Incomplete48That Fisheries and Oceans Canada should create a widely representative advisory committee to provide ongoing recommendation regarding the administration and enforcement of the Fisheries Act. The advisory committee should include but not be limited to, industry groups, project proponents, agricultural groups, municipal government representatives and commercial, recreational and Indigenous fisheries representatives.“Establish a collaborative committee to advise on fish and fish habitat protection”Partial – broadly defined for “advise on fish” when the committee’s recommendation is for advising on the administration and enforcement of the act.To broaden the Minister’s mandate to consider long-term conservation and protection of fish and fish habitat when evaluating projects that contravene the Fisheries Act.Incomplete – no mention of changing Minister’s mandate.That Fisheries and Oceans Canada provide the Committee with a report within two years after the revision to the Fisheries Act detailing authorization requests and decisions timelines.IncompleteThat any changes to habitat protection in the Fisheries Act must be supported by a reduced reliance on project proponent self-assessment.IncompleteThat Fisheries and Oceans Canada put in place consistent monitoring requirements for proponents, with clear standards and rationale.“Provide Canadians transparent access to information about projects and activities impacting fish and fish habitat through: improved reporting from proponents; strengthened compliance monitoring; timely, relevant and accessible information”Partial – “Improved” reporting would imply somehow setting out better guidelines for proponents but no mention.49That Fisheries and Oceans Canada make investments into a public and accessible database system that will identify: The location and status of projects that have been flagged by the Department of having a potential to cause harm to fish and fish habitat (authorizations, monitoring results and convictions) and their cumulative effects; The location of different aquatic species; Up-to-date monitoring of aquatic species at risk and their status; and The status of authorizations.“Provide Canadians transparent access to information about projects and activities impacting fish and fish habitat through: improved reporting from proponents; strengthened compliance monitoring; timely, relevant and accessible information”PartialThat Fisheries and Oceans Canada ensure that significant investments are made in hiring more field personnel to improve fish habitat enforcement, to assist in fisheries enhancement projects and to establish positive consultative relationships with local communities.“Enhance enforcement powers”Partial (talk of enhancing powers but not resourcing enforcement specifically).That Fisheries and Oceans Canada meaningfully resource the monitoring, compliance and enforcement components of the Department.Incomplete (no specific resources committed to enforcement).That Fisheries and Oceans Canada increase enforcement staff on the ground by recruiting and retaining habitat monitors, including fishery officers who are dedicated to habitat protection.IncompleteThat Fisheries and Oceans Canada ensure that habitat protection staff are adequately trained and resourced with long-term funding and empower field staff to do their job to protect fish and fish habitat.Build the capacity and develop expertise to protect fish and fish habitatPartial (no mention of ‘adequately resourced’ or ‘long-term funding)50That Fisheries and Oceans Canada re-establish the Habitat Protection Branch, adequately resourced to provide advice to proponents of projects that may impact marine and freshwater habitats and to enforce compliance.IncompleteRe-examine sections 32, 35 and 36 Fisheries Act authorizations as environmental assessment triggers.IncompleteThat Fisheries and Oceans Canada continue to fund fisheries conservation and enhancement projects in co-operation with the Indigenous communities, the agricultural communities, and fisheries conservation organizations.Enhance the participation of Indigenous peoples in the conservation and protection of fish and fish habitatsPartial (no mention of other stakeholders, or enhancement projects).That the exercise of ministerial discretion be subject to transparency principles and public disclosure.IncompleteThat the Minister, in the exercise of his or her discretionary power over licencing, may specify conditions of licence respecting and in support of social and economic objectives, in addition to the conservation objectives currently identified.“Clarify the factors considered in decisions about approvals”Partial (very weak fulfilment of this and other recommendations RE: requiring reasons )That any revision to the Fisheries Act should include direction for restoration and recovery of fish habitat and stocks.IncompleteThat the Government of Canada address known regulatory gaps to ensure that Fisheries and Oceans Canada, in collaboration with all fisheries stakeholders, is capable of responding to all activities that are harmful to fish or fish habitat and is able to actually determine effect (e.g. ongoing collection of baseline data that allows determination of changes due to activities).Incomplete51That Fisheries and Oceans Canada renew its commitment to the “No Net Loss” and “Net Gain” policies with a renewed focus, effort and resources on restoration and enhancement of fish habitat and fish productivity and that the Department allow project proponents flexibility to fulfill this requirement.Incomplete

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