| Comments or additional information on the Agency's report are welcomed and should be addressed to:
Mr. Robert Connelly |
The Walter and Duncan Gordon Charitable Foundation commissioned an independent review of federal environmental assessment in Canada. The outcome was a 44-page report prepared by journalist Andrew Nikiforuk titled The Nasty Game: The Failure of Environmental Assessment in Canada.
A review of the Canadian environmental assessment (EA) process is timely since the Canadian Environmental Assessment Agency (Agency) must undertake a comprehensive review of the Canadian Environ-
mental Assessment Act (Act) in the year 2000. Mr. Nikiforuk raises some important issues that need to be examined in this five-year review.
However, his report contains so many inaccuracies that its usefulness is questionable. It would take a report at least as long to reply to them. The Agency believes that such a response would serve little purpose. Instead, the Agency will address some of the fundamental issues raised in The Nasty Game.
A. Environmental Assessment Legislation
One of the main problems with The Nasty Game is the confusion between the Environmental Assessment and Review Process Guidelines Order (EARPGO) and the Act. Mr. Nikiforuk correctly points out some of the problems related to the EARPGO, but fails to acknowledge that many of these have been addressed by the Act. Virtually all examples of panels cited in the report including the Oldman River Dam, Rafferty-Alameda Project, Military Flying Activities in Labrador and Quebec, Northumberland Strait Crossing Project and the NWT Diamonds Project were conducted under the EARPGO. Moreover, two projects, construction of the Mirabel Airport and the Churchill River Diversion Scheme, even predate environmental assessment in Canada.
Whether a project is subject to federal environmental assessment is much clearer under the Act. For example, the Act and its regulations define which regulatory activities of the federal government "trigger" an environmental assessment, something that was left for the courts to interpret under the EARPGO.
The suggestion that the EARPGO was more effective or allowed for a broader assessment of socio-economic effects is incorrect. The assessment of general socio-economic effects is a discretionary factor under both the EARPGO and the Act. Under the EARPGO, such discretion could only be exercised by Ministers whereas under the Act a responsible authority (the federal authority responsible for conducting the assessment) can include this factor in a screening.
Mr. Nikiforuk's criticisms of the Act demonstrate that he does not understand the legislation. The Act makes it clear when an environmental assessment is required (section 5), what must be considered in an environmental assessment (sections 15 and 16) and what decisions must be made following an environmental assessment (sections 20 and 37). As such it is not the complicated piece of legislation that he claims it to be.
The self assessment process comes in for much criticism, but the report fails to point out the checks and balances in the Act. For example:
In fact, it is only at the screening level of review where the Minister of the Environment or the Agency normally has no direct involvement. Since there are thousands of screenings conducted each year, it would be impractical to make one agency or department responsible for all these environmental assessments. The more effective approach is to make environmental assessment part of the planning process of each federal authority. This is what Mr. Nikiforuk espouses in his first principle for environmental assessment; this is in fact exactly what that Act provides for.
Go / No-go Decision
The comment that "there is no clear mention of ever making a go or no-go decision" fails to recognize that environmental assessment is a planning tool that informs decision-makers. The decision-maker uses the information from the environmental assessment along with other factors as part of determining whether the federal government will support the project. Nevertheless, the Act is clear that where a project is likely to cause significant adverse environmental effects that cannot be justified, the responsible authority shall not take any action that would permit the project to be carried out. The report erroneously implies that good environmental assessment results in a no-go decision rather than in development where environmental effects are successfully mitigated or avoided.
Scope of Environmental Assessment
The report suggests that environmental assessment should address such factors as land claims and regional planning. It correctly states the Agency's view that environmental assessment is not the correct tool to address such issues. There already is an extensive effort to settle land claims and any incursion of environmental assessment into such areas would be counter productive. Nevertheless, the panel that reviewed the NWT Diamonds Project acknowledged that this was an outstanding matter and recommended that "the Government of Canada and Aboriginal peoples work toward a quick and equitable settlement of outstanding land claims in the region." Other panels have made similar recommendations.
Alternatives
Another misleading suggestion in the report is that Canadian environmental assessments rarely consider alternatives; this is simply incorrect. The Act addresses alternatives in two ways.
Follow-up
The report correctly points out that follow-up or monitoring is necessary to ensure that predictions of environmental effects were accurate and that mitigation was effective; however, it suggests that this is not being done. The Act states that a follow-up program must be considered following every environmental assessment (section 38) and the need for, and the requirements of any follow-up program must be specifically addressed in any comprehensive study, mediation or panel review (section 16). Admittedly, increased attention to follow-up is desirable, however, follow-up monitoring has been recommended and implemented after most panel reviews. For example, the NWT Diamonds Project panel recommended a comprehensive environmental and socio-economic monitoring program which has been implemented by government. Further, levels of pollutants from industrial developments are routinely monitored by government to ensure that projects are is in compliance with permit conditions or regulations.
An international study on the effectiveness of environmental assessment (Sadler, 1996) reports that Canada is one of the few countries where follow-up is addressed in legislation. In other countries, guidelines or precedents establish the need for monitoring.
Guidelines
The allegation that there is not a "model or template" for environmental assessments is incorrect. In fact, there are a number of guidelines for preparing environmental impact statements. These range from the days of the EARPGO to those just released, Guide to Information Requirements for the Environmental Assessment of Mining Projects in Canada, prepared by Marbek Resource Consultants for the Agency, Environment Canada and Natural Resources Canada. In addition, the guidelines for the preparation of environmental impact statements prepared by panels have drawn extensively on the work of previous panels. On the other hand, any guidelines must allow the responsible authority or the panel sufficient latitude to ensure that the factors relevant to the project under review are addressed.
Mr. Nikiforuk does not appear to grasp the fundamentals of the division of powers between the federal and provincial governments. The fact is that "environment" is a shared jurisdiction with the provinces and the Act only applies when there is a federal decision to be taken concerning the project. The federal decision-making role that triggers an environmental assessment may be as a proponent, a land administrator, a source of funding or a regulator. On the other hand, provinces or jurisdictions established under land claims generally trigger environmental assessment through their broad land-management responsibilities.
The report states that harmonization "… often means letting everyone do what they want, doing EA twice or doing it with two discretionary sets of rules." It goes on to provide an example from British Columbia to support this point; which is incorrect. Under the Canada-British Columbia Agreement for Environmental Assessment Cooperation, one environmental assessment is conducted that meets both federal and provincial requirements. This has resulted in a strengthening of the assessment process in British Columbia as the proponent has to meet the sum total of the requirements of both regimes. Further, project committees composed of federal, provincial, local government and First Nation participants direct the process to ensure that all issues are adequately addressed and the public has been fully consulted.
The report uses the review of BHP's NWT Diamonds Project to "illustrate the crisis in environmental assessment." Many of the comments about the review are either incorrect or misleading. Some of these are addressed below.
The terms of reference for the review instructed the panel to review the proposed project and the cumulative effects of the project in addition to future development scenarios identified by BHP on its Lac de Gras properties. Such cumulative effects were addressed in the panel's report. The effects of development in the region are the subject of a separate five-year study (West Kitikmeot Slave Study) announced at the same time as the panel was appointed. The panel review was never intended to address the larger issue of development in the region as this was considered by a separate study.
Government administrators and scientists made key presentations to the panel at all stages of the review. In many cases they recommended additional measures required to ensure that environmental effects were addressed. That Human Resources Development Canada (HRDC) did not appear reflects the fact that education and training are the responsibly of the Government of the Northwest Territories. HRDC informed the panel of this in writing prior to the hearings. Heritage Canada spoke briefly during the hearings and provided the panel with the information that it required on proposals for national parks in the NWT.
The scope of the review, the review process and time frames for most steps in the review were set out in the panel's terms of reference issued by the Minister of the Environment when the panel was appointed. These terms of reference were developed though consultation with the Department of Indian Affairs and Northern Development, the Government of the Northwest Territories and directly affected First Nations and Inuit organizations. At each step the panel made sure that it followed its terms of reference including the timelines and consulted with the Agency on precedents established in other reviews. The government's acceptance of the panel's recommendations demonstrated its confidence in the panel and the process followed for the review.
The panel considered public comments in developing its procedures for the public hearings and adopted procedures that were similar to most public reviews conducted under the EARPGO. During the review the public had three main opportunities to comment on the proposal. The panel held scoping meetings in eight NWT communities, heard from approximately 125 presenters and received over 50 written submissions. Twenty-six submissions were received on the adequacy of the environmental impact statement. Eighteen days of public hearings were held in nine NWT communities during which the Panel received over 75 written submissions and heard approximately 260 presentations.
An examination of the above criticisms suggests that those who made them do not fully understand the role of public hearings in the federal environmental assessment process. Public hearings are designed to provide opportunities for individuals, organizations and government representatives to present to the panel their views, opinions and technical information on the acceptability of the environmental and socio-economic effects of the proposal. A fundamental point which seems to have been missed or ignored is that, under the EARPGO or the Act, a panel is not a decision-making body, but rather makes recommendations to government on the acceptability of the proposal. The purpose and the value of a panel is to consider and integrate the views of participants into a series of recommendations for decision by Ministers.
The report contends that Canada is not a leader in area of environmental assessment. Such a statement is an insult to the many excellent Canadian environmental assessment practitioners within government and the private sector.
The Organization for Economic Co-operation and Development (OECD) in its Environmental Performance Review of Canada had nothing but praise for the Act when it stated, "Notable achievements have been made in integrating environmental considerations into economic and sectoral policies. Examples include the legislated environmental assessment process ....". As reported earlier, Canada is one of only two countries where follow-up is a addressed in environmental assessment legislation (Sadler, 1996). Further, Canada is among only three of twenty countries surveyed that conduct more that 1,000 environmental assessment a year (Sadler, 1996).
The Agency is aware of many environmental consulting companies who's expertise is in demand overseas. For example, a Vancouver-based consulting firm established an office in Indonesia in the late 1980's with a staff of over 20 essentially devoted to environmental assessments. According to this company, it was able to establish a presence in Indonesia because Canadians played a large part in the development and implementation of the country's environmental assessment regime. Another consulting company is assisting Vietnam, a country cited by Nikiforuk as being confused by Canada's process, in developing its environmental assessment process and in conducting assessments of major developments. Further, Canadian government scientists have been invited to other counties to assist them in developing environmental assessment legislation and in the assessment of mining projects and of human health effects. While we would not be so arrogant to claim that we are world leaders in all areas of environmental assessment, it is clear that Canadian expertise is well known and sought after abroad, in part because of our strong institutional practices, procedures, legislation and experience.
G. Conclusion
The above analysis has addressed some of the main themes in The Nasty Game and provided the Agency's viewpoint on these matters. Perhaps the main problem with The Nasty Game is that it strings together concerns about the federal environmental assessment process without considering whether these concerns are either accurate or relevant. Any useful suggestions in The Nasty Game are lost in a maze of rhetoric and inaccuracies. The result is a skewed report which, unfortunately, does little to help advance environmental assessment in Canada.