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Review of federal environmental assessment processes: What happens next?

8 February, 2017

Last December, the Expert Panel appointed by the Minister of Environment and Climate Change to review federal environmental assessment processes wrapped up its cross-Canada tour.

For almost four months, the four-member panel engaged the public, experts, industry, government agencies and Indigenous peoples on how to improve federal environmental assessment processes. It heard from over 800 individuals and groups on issues ranging from meaningful public engagement to co-governing environmental assessments with Indigenous governments on a nation-to-nation basis. (You can read West Coast’s submissions to the panel here, and all submissions received on the panel’s website).

With the panel wrapping up its consultations, many people are asking, what now?

The short answer: a lot. It may take months – years even – before key changes may be made to the way the federal government considers and makes decisions about proposals that affect the environment (like pipelines).

As a member of the Multi-Interest Advisory Committee appointed to assist the panel in its review, and from frequent conversations with folks in Ottawa, we have a pretty good idea of what’s in store for the coming months and years. Here are some of the next steps we can expect.

Expert Panel report and public comment period:

On March 31st, 2017 the Panel must submit a report to the Minister of Environment and Climate Change describing what it heard during its consultations and making recommendations on how to improve federal environmental assessments. That report will be made immediately available to the public in both official languages – that’s right, we receive it as soon as the government does.

The government – likely the Minister, supported by the Canadian Environmental Assessment Agency – will hold a 30-day public consultation period on the report. This will be your chance to tell the government what you agree with in the report, where you disagree with it and what the panel may have missed. This period, and the weeks following it, will be a strategically important time for the government to weigh the options for how it will fulfil the Minister’s mandate to introduce new, fairer environmental assessment processes, and to make decisions on which directions it will go in.

Spring meetings with key groups:

Until now, the primary body consulting on federal environmental assessment reform has been the Expert Panel. Both the government and the Panel took pains to explain that the Expert Panel was separate from government. In the words of Panel chair Johanne Gelinas, once the Panel submits its report it will disappear, “poof.”

With the report in hand, the Minister and Agency will begin to consult – likely extensively – with Indigenous and non-Indigenous groups on the report and implementing reforms.

The Multi-Interest Advisory Committee will meet in April in Ottawa to discuss the report, and the Environmental Planning and Assessment Caucus (a national caucus of over 60 members from across the country) expects to meet with the Agency in May to reflect on the report and build on the recommendations it made to the panel in December. Consultations with Indigenous groups, as well as other federal departments and agencies and the provinces, are also expected.

Memorandum to Cabinet:

Sometime likely in late spring 2017, the Canadian Environmental Assessment Agency and Minister’s office will decide on how they propose to reform federal environmental assessment processes. The Agency will then hunker down to write what is called a Memorandum to Cabinet, which is the main document it must use to seek Cabinet’s approvals for the reforms it is proposing. This Memorandum will contain an overview of the issue, recommendations and rationales, and financial considerations, and it must be approved by Cabinet.

Don’t expect to see this document, as it is a matter of Cabinet confidence. Our best guess on timelines for the Memorandum to Cabinet is that it will be written and considered by Cabinet sometime in summer or early fall 2017.

Legislative drafting:

It is quite likely that the Memorandum to Cabinet will recommend changes to legislation, although we do not know whether the government plans to propose an entirely new statute or just reforms to the current Canadian Environmental Assessment Act, 2012.As we explain in the outcomes of the Federal Environmental Assessment Reform Summit that West Coast hosted last May, in our view next-generation environmental assessment will likely require a new statute.

If the Memorandum to Cabinet is approved, Cabinet will provide legislative drafting instructions to the Department of Justice. The Department of Justice (or possibly a committee) will prepare a draft bill, which must then be approved by Cabinet before it can be introduced in Parliament. As of now, we anticipate that this legislative drafting stage will occur in fall 2017.

Tabling of legislation:

Based on discussions with key government officials, we understand that the government expects to introduce environmental assessment reform legislation in Parliament in early 2018 (January or February). It is an ambitious timeline, but legislation typically takes a year to pass through the House and Senate, and with the next federal election scheduled to occur on or before October 21, 2019, the government will want to ensure that any new bill is passed before the federal parties go fully into election mode.

Once tabled, the bill will have to go through three readings plus study by Parliamentary Committee in the House, and the same thing all over again in the Senate. If it passes through both, it will go to the Governor General for approval and receive Royal Assent.

If all goes according to plan (and it is an ambitious but achievable plan), we will have a next-generation environmental assessment law in Canada by early 2019.

(Wondering what “next generation environmental assessment” looks like? Read our blog describing the pillars of next-generation environmental assessment.)

There is much work to be done before then, and there will be many opportunities during the stages described above for engagement with the government – as well as other concerned groups, Indigenous nations and even the provinces – on how to transform the way we make decisions about proposals that affect communities and the environment. West Coast will continue to be actively involved in the review and keep you posted on those opportunities. It will be a long and interesting road, and we are happy to be on it.

Author: 
Anna Johnston, Staff Counsel