by Terry Fenge

 Environmental assessment in Canada is something of a jurisdictional jigsaw puzzle as federal and provincial governments each have responsibility for different components of the environment. In northern Quebec, environmental assessment is subject also to the 1975 James Bay and Northern Quebec Agreement-a modern treaty that defines land rights, and land-based rights of the Cree and Inuit.

Until quite recently it was entirely unclear whether the Great Whale project would be subject to a comprehensive and rigorous environmental assessment. Hydro-Quebec and the Government of Quebec wished to split-up portions of the project for assessment purposes. It was only after considerable political and legal pressure, largely by aboriginal peoples, but including CARC and other public interest groups, that the federal and Quebec governments and Hydro-Quebec agreed to a "global" review and assessment of the project. This commitment was formalized on January 23, 1992, when the two governments, and representatives of Cree and Inuit organizations from within Quebec, signed a Memorandum of Understanding (MOW) to coordinate and provide direction to the assessment. As a result, the assessment is being handled by five committees, each covering distinct areas of responsibility and geography.

One of these committees is set up by the federal government under the 19X4 Environmental Assessment and Review Process Guidelines Order. In addition to examining the potential effects of this project within Quebec, this panel is charged with looking at the likely impacts of the project on the Belcher Islands and elsewhere in the Northwest Territories, an area over which the federal government exercises complete jurisdiction.

The review committees started work in late January. Their initial task was to determine the scope of the assessment; their next, to provide guidelines that Hydro-Quebec could use in preparing an environmental impact statement. To do this, the panels held 23 days of public hearings in communities in northern and southern Quebec, and in Sanikiluaq on the Belcher Islands. They received 93 briefs and heard from over 250 witnesses. Draft guidelines were issued on April 30. Final guidelines were issued in late September, following additional written comments and submissions by intervenors.

Hydro-Quebec is now preparing the environmental impact statement, which is likely to be presented in mid 1993. Additional public hearings will be held to examine the statement and to obtain reactions to it. The committees are then to prepare their conclusions and recommendations, and to report to the two governments. Arguably, defining the scope of the EIS is the most important stage in the assessment, for this is when the agenda for the review is set. The guidelines provide the foundation upon which the remainder of the process is acted out.

 Scoping Hearings

The public hearings into the scope of the assessment were attended by hundreds of people representing all shades of opinion. Curiously, the federal government was absent from the scoping hearings. A few junior federal civil servants were to be found sitting demurely at the back of the room. When approached, they noted firmly that they were there only to observe. All reported that federal agencies were not participating publicly in the scoping hearings. Only written briefs were submitted.

Federal agencies normally participate actively, even vigorously, in environmental assessments when these impinge upon matters of federal jurisdiction. This has certainly been the case in other areas of northern Canada. For example, federal agencies participated routinely and repeatedly in the early 1980s in the assessment of potential impacts of oil and gas development in the Beaufort Sea region. Federal agencies presented briefs, asked questions, and were themselves questioned by the assessment panel, the proponent and other intervenors. This form of active participation and dialogue was crucial in airing issues of project surveillance, monitoring, regulation, and management, all of which had great bearing on the ability of the proponent and the federal government to mitigate the detrimental impacts of the project.

Ottawa is the constitutional guardian and self-styled owner and manager of natural resources in the territorial North. The federal government also has a major research role in the North-it spends millions of dollars each year to find out more about the workings of the natural environment in the Arctic. This research provides basic information-baseline data against which the impacts of industrial development can be measured and compared. In particular, the federal government has research expertise in the marine environment, an area little considered by either Hydro-Quebec or the government of Quebec.

In 1982, an evaluation of EARP showed that certain federal agencies were ignoring the initial screening stages of the environmental assessment process. As a result, EARP was reformed in 1984 through a Guidelines Order which was recently upheld by the Supreme Court of Canada in the Oldman River dam case. A key reform in the Guidelines Order-and one still on the books-was to require federal agencies to participate in the assessment process, not only in the screening stage, but also in the later public review stage.

Sections 33and 36 of the Guidelines Order require federal agencies to participate in environmental assessment processes. This requirement is particularly onerous for departments which have decision-making authority for the proposal under review, and so initiate the assessment process. Section 33 of the Guidelines Order states:

"It is the responsibility of the initiating department in a public review to...

In a public review, it is the role of every department that has specialist knowledge or responsibilities relevant to a proposal to:

Why is the federal government so reticent about getting publicly involved in this assessment? Why indeed, when across Hudson Bay in northern Manitoba, federal agencies are lining up to participate in scoping hearings into the proposed Conawapa hydroelectric power dam. Both reviews raise similar issues.

To shed some light on this puzzling behaviour, CARC asked ministers of federal agencies, that had submitted written briefs to the Great Whale panels, for an explanation of their department's behaviour. The replies are instructive. It is important to note that the Department of Transport is the "initiating department" for the EARP review of the Great Whale hydroelectric project.

 Ministers' Reply

1. Hon. Frank Oberle, Minister of Forestry: