Law Times

Page 8 November 21, 2016 • Law Times www.lawtimesnews.com Panel's deadline and timeline hurting First Nations' participation Review of EA process needs improvement: lawyers BY MICHAEL MCKIERNAN For Law Times C ommunications and funding failures are threatening to under- mine indigenous en- gagement in the federal govern- ment's comprehensive review of its environmental assessment process, according to a Toronto lawyer. An independent expert panel unveiled in August is in the mid- dle of public hearings as it pre- pares to make recommendations for the overhaul of the contro- versial Canadian Environmental Assessment Act, 2012. The panel aims to report in the new year so that the federal government can get legislation in front of Parlia- ment as soon as possible. But Matt McPherson, a law- yer with Olthuis Kleer Townsh- end LLP, a firm with a focus on aboriginal law, says the panel's ambitious deadline and rushed timetable has discouraged par- ticipation from some of the groups with the greatest interest in the EA process. "This exercise has the poten- tial to be really beneficial. The fact that the government is doing this review across the board makes it a once-in-a-lifetime opportunity, but the problem so far has been with the process and the uncer- tainty it has created," he says. "En- gaging the full range of people, and for indigenous groups, tak- ing into account their specific concerns in a real and substantial way, is necessary to have a fully functioning EA process." McPherson says inadequate communication about the review left First Nations with little time to prepare meaningful submis- sions ahead of the first public hearings, while a funding pro- gram run by the Canadian En- vironmental Assessment Agency designed to assist aboriginal groups who want to take part had already stopped accepting appli- cations by the time many even became aware of its existence. "It kind of underscores the concerns that indigenous groups have with the environmental as- sessments process more gener- ally," McPherson says. "There are these arbitrary timelines that are very rigid and don't take into account internal capacity issues that affect groups' ability to re- spond in a timely manner." Even those who got their ap- plications in on time have found themselves left in limbo, thanks to funding decisions that come just days or weeks before sched- uled hearings, and suggestions that any activities commenced before approval may not be cov- ered. Without certainty about funding availability, it's difficult for McPherson's clients to invest in the kinds of scientific and ex- pert reports that will improve the quality of their submissions, he says. "In Saskatoon, there were First Nations appearing to pres- ent the views of their communi- ty who didn't know if they were going to get funding," McPher- son says. "The big concern is that bureaucratic snafus have created a situation where it may actually discourage participation. I don't think that's what the govern- ment wants, but that is the prac- tical reality on the ground, and it's something they need to get a hold of and fix." Despite his issues with the consultation process so far, McPherson says he was encour- aged by the federal govern- ment's emphasis on making sure that the legislation that emerges from the review ref lects its sup- port for the United Nations Declaration on the Rights of In- digenous Peoples. Kirsten Mikadze, a Toronto lawyer in the environmental law group at Siskinds LLP, says she sees the current review as an extension of — as well as a reac- tion to — the changes made to the environmental assessment in 2012 by the previous federal administration. Stephen Harper's government repealed the 1992 version of the CEAA in its entirety, replacing it in omnibus bills with a new ver- sion that consolidated the power to review big projects in just a few government agencies and re- moved the requirements for them altogether in some smaller proj- ects. In government parlance, the changes sped up and streamlined the EA process, while critics al- leged they simply neutered envi- ronmental oversight. Richard Lindgren, counsel to the Canadian Environmental Law Association, says he hopes to convince the panel to scrap the CEAA, 2012 altogether and start again from scratch. "It's pretty clear that mere tweaks to the existing legislation will not be enough," he says. "It needs a fundamental rewrite, and we're hopeful the panel will be responsive to our recommen- dations." According to the CELA, the new EA process should shift away from the traditional ap- proach, which tends to focus on adverse effects and mitigation efforts, to what it calls a "sustain- ability assessment" approach, where the emphasis is on deliv- ering "long-term, mutually re- inforcing and fairly distributed benefits from approved under- takings," the group says in its submission to the review panel. Mikadze says she hopes the new legislation provides for an environmental assessment pro- cess that delivers opportunities for public participation. "I know when an environ- mental assessment is going on, it can be costly, lengthy and poten- tially challenging to have every- one's voice heard on some issues, but I think the objective needs to be about creating meaningful dialogue," she says. "The 2012 changes seemed to narrow some of the existing avenues for public participation." LT FOCUS ON Environmental Law Focus Richard Lindgren says he hopes to convince a federal independent expert panel tasked with reviewing the environmental assessment process to scrap the Canadian Environmental Assessment Act, 2012. ORDER YOUR COPY TODAY! Visit carswell.com or call 1.800.387.5164 for a 30-day no-risk evaluation THE MOST COMPLETE DIRECTORY OF ONTARIO LAWYERS, LAW FIRMS, JUDGES AND COURTS Ontario Lawyer's Phone Book is your best connection to legal services in Ontario with more than 1,400 pages of essential legal references. You can depend on the accuracy of this trusted directory that includes the most up-to-date names, phone numbers, mailing addresses and emails so you don't have to search anywhere else. 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