COMMENTS ON THE DRAFT COOPERATION PLAN

SUBMITTED BY THE CANADIAN ARCTIC RESOURCES COMMITTEE

Introduction

1.2  Purpose and Objectives of the Cooperation Plan

The objectives laid out are not as detailed as those in the enabling legislation of many of the potential parties to the Plan. For example, the purposes of Part 5 of the Mackenzie Valley Resource Management Act (MVRMA), s. 114, include “to ensure that the impact on the environment of proposed developments receives careful consideration before actions are taken in connection with them” and “to ensure that the concerns of Aboriginal people and the general public are taken into account”.  There may be similar purposes and objectives laid out in other applicable legislation that should be summarized in this section.

1.3  Scope of the Cooperation Plan

It should be mentioned here that the Deh Cho First Nations (as opposed to the “Nation” referred to in Table 1) were only invited to send a representative part way through the process similar to the footnote for the Yukon Government participation. To the best or our knowledge, the Deh Cho First Nations have not consented to this process and there may be unfulfilled fiduciary obligations on the part of the Crown.

Context for Natural Gas Development in the NWT

2.1 Development Scenarios

Although it is clearly not the intention of the Agencies to set out the scope of the project in this section, the descriptions are limited to the immediate pipeline and development of initial production capacity.  Some regard should be shown towards later exploration and development that will be needed to keep the pipeline and production facilities working at capacity or in an efficient manner.  It may be desirable here to suggest that scenarios will likely be required to fully scope the project and ensure that there is an adequate cumulative effects assessment.

Table 2 does not specify a role for the Government of the Northwest Territories (GNWT) that is covered by the MVRMA.  GNWT Ministers can become a “responsible minister” under the MVRMA, and triggers exist under GNWT legislation for environmental assessment in general.  Some consideration should be given to listing other federal agencies that have regulatory authority including the Department of Fisheries and Oceans and Natural Resources Canada, similar to the listing in Table 2 for DIAND.

3.1  Rationale for the Selection of the Cooperation Framework

The text refers to several options, ranging from a combined environmental assessment and regulatory process to a variety of other less integrated configurations.  More detail on these options would have been helpful in promoting public discussion.  It would have been preferable, in our view, to structure the Plan as a more fully integrated process which would ensure no duplication of effort and consistent application of the results of the EIA in the regulatory process.

3.2  Guiding Principles

The Diavik Comprehensive Study was supposed to be a “made in the north” process, but it resulted in litigation and unfulfilled commitments on cumulative effects assessment and management.  We are concerned that steps be taken to avoid these problems as part of the Cooperation Plan. 

One of the principles mentioned here, “enhanced public participation” is not reflected in the Plan, as the process simply meets the minimum public participation requirements set out in legislation.  It would be more appropriate to present measures that reflect the most rigorous of all the public participation provisions and procedures specified in applicable legislation (e.g. cross-examination of technical experts).

Consideration should be given to additional principles including Canada’s international and treaty obligations, and the precautionary principle.  The Great Whale, BHP and Voisey’s Bay panels all required that Traditional Knowledge should be given full and equal consideration. These precedents could be recognized in this section of the draft Cooperation Plan.

See discussion above under s. 2.1.  It is unclear from the balance of the draft Plan how some objectives, such as “addressing the importance of traditional knowledge in the EIA and regulatory processes” will be attained.

3.4 Assumptions

There appears to be an unstated assumption that the NEB processes cannot be fully integrated with the joint panel process.  The role of the NEB in a joint panel should be clearly spelled out.

The NEB is required to examine issues such policy issues as the availability of gas for a pipeline, existence of markets, economic feasibility, and the broader public interest in granting or refusing an application (see s. 52 of the National Energy Board Act).  If the NEB is not part of the joint panel process, this may essentially lead to a separate re-examination of the need for the project. The NEB will also examine and select routing for a pipeline, most appropriate construction methods and timing of construction (s. 36 NEBA), matters that would be examined during consideration of alternatives in the earlier joint panel process. This has the potential again for duplication and inefficiency if the NEB is not part of a joint panel process.  The NEB requirements are also briefly summarized on page 17 (paragraph 3) of the draft Cooperation Plan.

It is difficult to see how the draft Cooperation Plan reflects the spirit or intent of the December 4, 2000 Memorandum of Understanding between the MVEIRB and NEB with the potential separation of the NEB regulatory process from the joint panel. At a minimum, one positive measure that could easily be implemented, would be a joint single public record or registry for all environmental assessment and regulatory processes.  This may help eliminate duplication and ensure that there would not be a need to present expert evidence in two different proceedings. It would also ensure that all expert evidence could be tested in a rigorous manner and receive similar consideration by all the Agencies.

At the end of a joint panel process, only the recommendations are to go forward to the NEB and other regulatory bodies.  We would like to see some stronger assurances that recommendations from the joint panel make their way into regulatory terms and conditions.

Although it is not stated, we presume that the Preliminary Information Package that may be submitted by a proponent will be a public document and placed on the appropriate public registries.  The Minister(s) may also have the ability to refer matters back to a joint panel that they may request for reconsideration (see MVRMA s. 135(1)(a) and 137(1)(a)).

3.5 Highlights of the Cooperation Framework

A single record for all proceedings, both for the environmental assessment and regulatory proceedings should be considered as discussed above.  There should be one set of procedures developed for both the environmental assessment and regulatory proceedings and it should be developed to meet the highest standards set out in legislation.  We would strongly urge that there be public involvement in the development of the procedures. 

3.6.1 Description of Cooperation Framework Phases

There should be opportunities for public involvement and review of the three agreements specified in this section and of the consolidated information requirements. The technical support mentioned should be accessible to the public and subject to the public scrutiny provisions set out in procedures for the processes. 

3.6.2 Preliminary Information Package

The PIP requirements do not appear to be comprehensive enough to permit a scoping decision to be made, particularly as regards cumulative effects.  In section 3.6.2 of the Plan, it is clear that the PIP is intended to provide this information.  Section 16(1)(e) of CEAA requires the assessment of factors such as “the need for the project and alternatives to the project”, which are very real considerations here, where the potential for competing proposals exists.  Further development of the PIP at this time would be in order.

3.6.3 Application

One of the most crucial steps in this section will be the scoping of the project.  There needs to be a clear role for the public in scoping of the project as laid out in the MVRMA s. 117(2)(a).  It is our view that the scope of the project should not be limited to the immediate pipeline and field development. Scenarios or conceptual plans should be developed for all of the activities that will go into keeping a pipeline filled for a reasonable period of time, given the life-cycle of a any pipeline project of this magnitude.  These activities should be included in the scope of the project and process should be laid out for developing the scope of the project, including opportunities for public involvement.

There should be public involvement opportunities in determining the location and requirements for a joint public record or registries. 

There is no reference in this section to the case where more than one application is filed by different proponents.  What process will the Agencies use in the event of competing proposals?  Given the very real possibility of alternate routes, this is a point that requires clarification.

The section on “Proposed Course of Action by Regulators” refers to a team of experts serving the Boards.  These experts should be available to the public and open to questioning as set out in the applicable procedures.  The Boards may need to retain separate experts at various times if there are competing mandates and interests.  Given the clear linkages and overlap between the proposed environmental assessment and regulatory processes, it is essential that participant funding be extended to the regulatory phase even where there may be no legal requirement to do so. 

The “Estimated Timeframe” section refers to the possibility that the MVEIRB may identify public concern as the basis for an environmental impact review. Significant adverse impacts can also serve as the trigger for an order for an environmental impact review (MVRMA s. 128(1)(b)(i)).  This section does not make reference to the possibility that the MVEIRB may find that the MVEIRB may recommend the rejection of a proposed development (MVRMA s. 128(1)(d)).

3.6.4  Joint EIA Panel Hearings Coordinated with Regulatory Hearings

We would strongly urge that the public have the opportunity to participate in the conformity review of any environmental assessment documentation submitted by the proponent and government.  The public should also have the ability to request relevant additional information.

There is very little detail on participant funding in this section.  Participant funding appears to be limited to the presentation of “views to the Joint EIA Panel”.  We would strongly urge that participant funding be made available for the scrutiny of the proposal’s compliance with consolidated information requirements, of proponent and government evidence and the preparation and presentation of independent expert testimony and materials. 

As mentioned above, participant funding should be extended to include the regulatory process. Participant funding should be made available at the earliest possible time to ensure there is the opportunity for informed public input into the review of the formal agreements amongst the Agencies, scoping of the project, rules of procedure and other important steps identified in the Preparation Phase.

Potential intervenors should be involved in the process for determining the access to and amounts of participant funding.  While this may be outside the jurisdiction of the Agencies and primarily the concern of DIAND, this issue will be critical to the success of a coordinated assessment and regulatory process.  For the Royal Commission on Aboriginal Peoples, Justice Brian Dixon was retained as an independent advisor to provide advice on the amount and allocation of funding to organizations wishing to participate in the Commission’s proceedings. A similar process, along with some meetings of potential intervenors would facilitate the identification of an appropriate funding level and access procedures.  A separate funding application review committee can be established later to allocate the available funds applying the access procedures as is done now for CEAA panels.  

The need for intervenor funding is growing given the declining capability of governments to bring forward independent technical expertise.  We have noted that DIAND has recently provided $4.2 million to the Inuvialuit Development Corporation for new drill rigs and a support camp in the Mackenzie Delta.  While CARC supports economic diversification and maximization of northern benefits, there needs to be a fair, rigorous and comprehensive review of any pipeline project with an adequate level of participant or intervenor funding.

We are concerned at this point that there may not be sufficient funds for meaningful public participation.  It will take very significant resources to mount an effective intervention in a project of the magnitude of a Mackenzie Valley pipeline.  As an example, the environmental organizations (as coordinated by CARC) total participant funding ($29,000) and in-kind contributions towards the BHP Panel review was in excess of $250,000.  We have not estimated a budget for an intervention in a Mackenzie Valley pipeline as of yet, but it would be safe to say it would be significantly more than our efforts during the BHP Panel process.  

Our comments above on the desirability of a joint public record or registry for the entire environmental assessment and regulatory proceedings are discussed above.

The flow charts shown in Figures 1 and 2 make no provision for ‘no-go’ recommendations or decisions.

3.6.5 Completion of Regulatory Processes

Please note our comments above on the need and desirability for consistent procedures, participant funding and a joint public record or registry.

Several regulatory approvals are mentioned in this section that do not require a public hearing. The joint panel process should determine whether they should be issued and whether terms and conditions that should be attached to these approvals.

Prepared by: Canadian Arctic Resources Committee

Date:  March 8, 2002