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Section 2: Analysis of Program Activities by Strategic Outcome
In this section:
2.1 Strategic Outcome
Strategic Outcome: Environmental considerations are taken into account in federal government decisions respecting policies, plans, programs and projects.
Ensuring environmental considerations are taken into account in federal government decision making supports Canada's environmental sustainability and economic competitiveness, thereby providing long-term, enduring benefits for Canadians.
2.2 Program Activities by Strategic Outcome
| 2008-2009 Financial Resources ($000s) |
2008-2009 Human Resources (FTEs) |
||||
|---|---|---|---|---|---|
| Planned Spending |
Total Authorities |
Actual Spending |
Planned | Actual | Difference |
| 5,956 | 6,518 | 6,605 | 51 | 38 | 13 |
|
Overall Anticipated Result:
An effective, efficient, and integrated environmental assessment process at the federal level. |
|||||
| Expected Results |
Performance Indicators |
Performance Summary |
|---|---|---|
| Build and clarify linkages and strengthen inter-jurisdictional coordination among environmental assessment processes, and between environmental assessment and regulatory frameworks. | The instruments developed to support environmental assessment cooperation and coordination, such as formal arrangements/agreements finalized for implementation. |
|
| Work with partners and stakeholders through various advisory committees and consultative mechanisms to develop, review and update the legislative, regulatory and policy basis for the practice of EA federally. | The tracking of legislative, regulatory and policy issues and associated responses (priority issues identified, described and addressed to provide a strong framework for more integrated environmental assessments). |
|
| Promote early consideration of environmental factors in policy, plan and program development. | The proportion of government policy, plan and program proposals meeting expectations for strategic-level assessment. |
|
| Explore opportunities for building a more integrated federal EA process by bridging the practice of EA at the strategic and project levels. | No indicator identified. |
|
Benefits for Canadians
The Environmental Assessment Development Program activity sought to maintain and improve an effective, efficient and integrated environmental assessment process at the federal level, taking into account interactions with other environmental assessment, consultative and regulatory decision-making processes in Canada, as well as the transboundary context for environmental assessment. A sound environmental assessment process is vital to ensuring that environmental considerations are integrated into federal government decision making, thereby supporting quality of life for Canadians, environmental sustainability, and economic competitiveness.
Performance Analysis
This program activity aligned most closely with the Agency's priority to build a framework for more integrated environmental assessment. By establishing and maintaining the policy and legislative foundation for the practice of environmental assessment federally, the program activity also supported the Agency's priority to play an active leadership role in federal environmental assessment.
Throughout the year, the Agency monitored and evaluated emerging issues and challenges, and sought to develop appropriate options for legislative improvements, as well as regulatory and policy responses. In addition, the program activity contributed to strengthening environmental assessment coordination, in part through exploring linkages between different forms of assessment.
Consultation with partners and stakeholders
The Agency continued to work with a wide range of stakeholders, and developed and maintained partnerships to promote sound environmental assessment practices in Canada and abroad. In support of this work, the Agency continued to maintain and support several mechanisms for receiving advice and consulting with stakeholders and partners, including the Minister's Regulatory Advisory Committee (multi-stakeholder), the Senior Management Committee on Environmental Assessment (federal departments and agencies), the Environmental Assessment Administrators Committee (provincial and territorial governments), and the Regional Environmental Assessment Committees (federal authorities, regulated authorities and provincial governments). The Agency also engaged in public consultations on several regulatory initiatives.
The Agency participated in a senior-level interdepartmental policy working group tasked with developing a national action plan for the federal government on the legal duty to consult with Aboriginal groups. The Agency's participation in this initiative helps to ensure that the federal government's duty to consult is appropriately fulfilled in part through the environmental process.
Strengthening environmental assessment coordination and cooperation
Six bilateral agreements with provincial governments helped ensure each party's environmental assessment responsibilities were coordinated to the extent practicable. The Agency, with its provincial counterpart in Quebec, conducted a survey to assess the level of understanding of the application of the Canada-Quebec Agreement on Environmental Assessment Cooperation. This evaluation showed that no significant changes to the agreement would be required in the context of its renewal in 2009.
The Agency worked with Indian and Northern Affairs Canada (INAC) to ensure that environmental assessment regimes developed and implemented pursuant to comprehensive land claims agreements, self-government agreements and devolution initiatives are consistent with the Act and can be coordinated with existing environmental assessment regimes.
The Agency continued to work with provinces and territories through the CCME to explore options to improve cooperation in environmental assessment for projects subject to both provincial and federal legislation. A discussion paper on potential options for federal-provincial collaboration was produced and made available to the public for comment, with a final report to be presented in the fall of 2009.
The Agency also participated in CCME work to advance the science and practice of regional SEA by developing a Canada-wide understanding of the concept. Through pilot initiatives in the Beaufort Basin and offshore Nova Scotia, the Agency, working with a range of partners, began to explore the potential contribution of regional-scale environmental assessment to development planning and to better-informed and more streamlined assessments of individual projects.
The Agency continued to promote international dialogue and cooperation in environmental assessment. To this end, the Agency entered into a contribution agreement with the International Association for Impact Assessment to support the annual meeting of the association in Perth, Australia, and facilitated the networking of Canadian participants. The Agency played an active role in supporting the "Conférence internationale Québec 2008" in Quebec City, Quebec, hosted by the Secrétariat international francophone en évaluation environnementale and the Association québécoise en évaluation environnementale. The Agency also participated in the Fourth Meeting of the Parties to the United Nations Economic Commission for Europe's (UNECE's) "Convention on Environmental Impact Assessment (EIA) in a Transboundary Context" held in Bucharest, Romania.
In November 2008, the Agency hosted a delegation from Australia's Department of Environment, Water, Heritage and the Arts. The Australian delegates were particularly interested in learning about Canada's experience with review panel processes and participant funding. The visit also provided an opportunity to share information and experience on many aspects of environmental assessment in a federal context. The Agency gained insights regarding different approaches to similar issues faced by Canada, such as ensuring high-quality environmental assessment through a timely process, that will contribute to its work in preparing for the review of the Act in 2010.
Research and analysis
The Agency undertook research and analysis to establish a solid understanding of how federal environmental assessment is being implemented, including identification of impediments to the efficient and effective conduct of environmental assessments. Of particular interest were the timeliness of assessments, the role of public participation, and the benefits derived from federal environmental assessments. This analysis is informing ongoing improvements to the current process and will also assist in preparing for the legislative review of the Act scheduled to begin in 2010.
The Agency funded research and development projects related to SEA, meaningful involvement in environmental assessments, climate change and adaptive management. The Agency also provided funding to stakeholders and professional organizations, notably in support of meetings and conferences aimed at promoting information sharing and increasing the awareness and understanding of environmental assessment. The program will be evaluated in 2009-2010 toward renewal of its terms and conditions in the spring of 2010.
On behalf of the Privy Council Office, the Agency began leading a government-wide evaluation of the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals. The evaluation will assess the contribution of SEA to balanced decision making in support of sustainable development. Of the policy documents for Cabinet consideration reviewed by the Agency during the fiscal year, 62% did not require consideration under the Cabinet Directive. Of those that did require consideration under the Cabinet Directive, 91% reported the conduct of at least a preliminary scan, with 24% also reporting the conduct of a detailed SEA.
The Agency provided input to the Commissioner of the Environment and Sustainable Development who began a performance audit of the application of the Canadian Environmental Assessment Act. The Commissioner's final report is expected in November 2009.
On behalf of the interdepartmental Environmental Assessment Programs Committee (EAPC), the Agency conducted an evaluation of the effectiveness of the Interim Approach to Scoping during its first year of implementation. The purpose of the evaluation was to determine if application of the Interim Approach was resulting in more timely and consistent scoping decisions. The evaluation will help the EAPC decide whether revisions or adjustments to the Interim Approach and supporting documents are required.
Legislative, regulatory and policy responses
A major priority for the Agency was undertaking regulatory initiatives to support the Government's Economic Action Plan. The Agency led the development of new regulations and regulatory amendments to help accelerate the approval process for public infrastructure projects funded by the federal government. These targeted changes eliminated the need for environmental assessment of projects determined to have insignificant environmental effects. A mechanism was also introduced to allow for the substitution of a provincial environmental assessment process for the federal process under specific conditions. These initiatives were consistent with efforts over the last several years to focus federal environmental assessments on appropriate projects, and to identify better means of integrating federal and provincial assessments.
Proposed regulations were pre-published in the Canada Gazette, Part I to add provisions of the International Boundary Waters Treaty Act to the Law List Regulations and the Inclusion List Regulations. These changes would create a new legislative trigger for environmental assessment. In addition, a discussion paper was published seeking public comment on a proposal to make the International Bridges and Tunnels Act a legislative trigger for environmental assessment. The Agency undertook work to update the environmental assessment regulations applicable to port authorities and conducted regulatory analysis of a proposal to develop environmental assessment regulations for airport authorities.
In order to eliminate the need for assessment of low-risk projects, other additions were made to the Exclusion List Regulations, 2007 to exclude certain projects related to Canada Post activities from the requirement for an environmental assessment. A proposal was also developed to adjust the requirements for certain municipal/community drinking water projects and a discussion paper was published for public comment. Regulatory options are being considered in light of the feedback received.
The 2007 Cabinet Directive on Improving the Performance of the Regulatory System for Major Resource Projects and its Memorandum of Understanding gave the Agency new responsibilities for integrating Aboriginal-Crown consultation into the environmental assessments it leads. The development of policies in relation to this role was an important priority.
| 2008-2009 Financial Resources ($ millions) |
2008-2009 Human Resources (FTEs) |
||||
|---|---|---|---|---|---|
| Planned Spending |
Total Authorities |
Actual Spending |
Planned | Actual | Difference |
| 28,500 | 29,562 | 21,643 | 197 | 143 | 54 |
|
Overall Anticipated Result:
A timely and predictable process that produces high-quality environmental assessments while engaging Canadians in the process by supporting them with tools, guidance and funding assistance to participate in certain environmental assessments. |
|||||
| Expected Results |
Performance Indicators |
Performance Summary |
|---|---|---|
| Developing and disseminating tools and mechanisms that support an improved EA process. | The instruments developed to support EA cooperation and coordination, such as work plans. |
|
| Encouraging the participation of groups, communities and individuals in the EA process. | Year-to-year analysis of internal records, such as the Canadian Environmental Assessment Registry and Agency financial records. |
|
| Playing a role in Aboriginal consultation and engagement in the context of EA, specifically with regard to major resource projects. | Comprehensive reflective analysis and evaluation of training and guidance records and surveys, and post-hearing surveys. |
|
Benefits for Canadians
The Environmental Assessment Support Program activity supports a transparent and rigorous environmental assessment process that encourages and enables meaningful public participation. By promoting a process that respects legislative requirements, is conducted in a cost-effective manner, avoids duplication and delays, and is clear and transparent to all participants, this program activity provides Canadians with a federal environmental assessment process that makes a value-added contribution to sustainable development.
Performance Analysis
This program aligns most closely with the Agency's priority to play an active leadership role in federal environmental assessment. The Agency fulfils this priority through its role as the Federal Environmental Assessment Coordinator (FEAC), as set out in the Act. As well, under the Cabinet Directive on Improving the Performance of the Regulatory System for Major Resource Projects, the Agency assumed a project manager role for most major resource projects.
Throughout the year, the Agency provided leadership in environmental assessment, including management of the environmental assessment and integration of Aboriginal consultation for most major resource projects. In consultation with partners and stakeholders, the Agency identified issues and challenges, and sought to develop appropriate responses.
The program activity provided meaningful and relevant opportunities for public participation, training courses, guidance, and up-to-date tools in support of the environmental assessment process.
Through delivery of training and guidance, the program also assisted in advancing the priority of building the capacity of the organization to deliver on existing and new responsibilities.
Managing and coordinating environmental assessments
The Agency worked with federal and provincial authorities on multi-jurisdictional environmental assessments, providing process coordination and administrative and technical support. The Agency worked with other jurisdictions to develop joint work plans to avoid duplication, and to better coordinate federal and provincial environmental assessment activities.
During the reporting period, the Agency undertook a coordination role during the environmental assessment of 265 projects. These included 81 newly announced projects (5 comprehensive studies, 3 review panels and 73 screenings), as well as ongoing assessments that carried over from the previous year. A total of 7 comprehensive studies and 1 review panel (Kearl Oil Sands Project) were completed. These completed environmental assessments allowed responsible authorities to exercise their power, duty or function with respect to these projects.
The Agency provided support to 11 review panels. To reduce costs, delays and duplication, 9 of these review panels were conducted jointly with another jurisdiction or regulatory body. For example, the Agency played a key role in the environmental assessment process for 4 nuclear-related projects conducted jointly with the Canadian Nuclear Safety Commission and 2 oil sands projects conducted jointly with Alberta's Energy Resources Conservation Board.
The Agency contributed to the coordination of the work undertaken by the James Bay and Northern Quebec Agreement (JBNQA) committees and federal authorities in the context of the environmental assessments undertaken pursuant to the JBNQA. During the reporting period, a total of 19 projects were being assessed pursuant to the JBNQA of which 8 were completed.
The Agency implemented, on a pilot basis, Learning Logs for environmental assessments for which the Agency is the FEAC or Project Manager. Successes, challenges and overall project outcomes are recorded in the Learning Logs. By documenting the environmental outcomes and project design changes that occur as a result of the federal environmental assessment process, the Learning Logs provide a formal mechanism to record benefits to Canadians and support continuous learning toward improved process management.
An environmental assessment review panel roster was established. The panel roster is comprised of 10 qualified individuals who may be considered as members of review panels established under the Act. The purpose of the panel roster is to increase the efficiency of review panel member selection and to lead to higher quality environmental assessments as roster members build experience for future review panels. The Agency also provided roster members with an orientation session to ensure a better understanding of the review panel process pursuant to the Canadian Environmental Assessment Act. During the reporting period five roster members were appointed to review panels.
Class screenings are a means of streamlining the environmental assessment process for certain routine projects. During the reporting period, three new class screenings were declared and one was re-declared. Since 2003, a total of 4,981 projects have been assessed using class screening reports (987 in 2008-2009). Fiscal year 2008-2009 marked the final year for the Class Screening Funding Program, which provided assistance to federal authorities in the development of class screening reports. Funding was used to develop five class screening reports, an analysis to broaden the use of an existing class screening, and a risk-based study for class screenings.
The Agency initiated the development of an intra-Agency geographic-based information system (GIS) to assist in identifying potential environmental and policy issues, and to provide support for planning project-level environmental assessment, Aboriginal consultation activities, and regional SEA.
Aboriginal engagement
The 2007 Cabinet Directive on Improving the Performance of the Regulatory System for Major Resource Projects and its Memorandum of Understanding gave the Agency responsibilities to integrate, to the greatest extent possible, Aboriginal-Crown consultation into the environmental assessments it leads. The planning and coordination of consultation plans, and leading engagement activities in relation to major resource projects, was a major priority for the Agency.
The Agency led Aboriginal consultation activities on 16 projects under the Major Resource Projects Initiative. The Agency, through the Aboriginal Funding Envelope of the Participant Funding Program (PFP), provided a total of $484,821 to 21 recipients. The funds assisted participants to prepare for and participate in Aboriginal consultation activities and public participation opportunities associated with eight review panel processes.
The Agency participated in an initiative with the Chiefs of Ontario to develop an Environmental Assessment Toolkit for member communities. This toolkit is intended to assist Ontario First Nations in understanding environmental assessment as it is practiced by their own communities and governed by Ontario and Canada, and to facilitate their participation in the environmental assessment of projects that may affect them.
Public participation
The Agency sought to maximize public participation in the environmental assessment process, placing strong emphasis on transparency and information sharing. The Agency provided a total of $532,631 in participant funding to 32 recipients, including individuals and non-profit organizations, to take part in review panels and comprehensive studies. The PFP implemented a client satisfaction survey to collect quantitative and qualitative information on whether the objectives of the program are being met.
The Agency evaluated its PFP, including the program's relevance, impacts (success), and cost effectiveness. The evaluation resulted in recommendations that will inform renewal by the end of 2009 of the program's terms and conditions.
The Agency maintained the Canadian Environmental Assessment Registry Internet Site (CEARIS), which is accessible by the public through the Agency's website. During 2008-2009, nearly 6,000 environmental assessments were entered into the online registry, and over 100,000 users visited CEARIS. Agency staff regularly responded to public requests for information and records. Several initiatives were undertaken to improve the quality of and accessibility to reliable information, and to promote opportunities for timely and meaningful public participation.
There were three public hearings associated with the review panel process of three projects during the reporting period. The Agency participated in two information sessions on the review panel process for the proposed Bruce Power New Nuclear Power Plant and Deep Geological Repository projects. Additionally, the Agency participated in a total of nine open houses hosted by other jurisdictions on the proposed Bute Inlet Hydroelectric and Prosperity Gold-Copper Mine projects in British Columbia, and the proposed Romaine Hydroelectric Complex Project in Quebec. For more information on review panels, see the Agency's Web page on review panels.
During the reporting period the Agency provided the public with an opportunity to comment on six comprehensive study reports. The Agency also coordinated the public consultation on the proposed scope, factors to be considered, and the ability of the comprehensive study to address issues relating to three projects. For more information on comprehensive studies, see the Agency's Web page on comprehensive studies.
To assist responsible authorities in fulfilling their responsibilities for public participation under the Act, the Agency published a Public Participation Guide in May 2008 and worked with federal authorities to assess the nature and extent of public participation in screenings.
Working with partners and stakeholders
The Agency administered the federal environmental assessment process and assisted federal departments, agencies and Crown corporations in meeting their obligations under the Act.
The Agency chaired the Environmental Assessment Programs Committee (EAPC) which oversees the implementation of the Memorandum of Understanding in support of the Cabinet Directive on Implementing the Canadian Environmental Assessment Act. The EAPC continues to serve as a project issues resolution body, and as a vehicle to assist in the dissemination of information and tools in support of environmental assessment improvement.
The Agency actively participated in the Interdepartmental Working Group (IWG) established by the MPMO to support implementation of the Cabinet Directive on Improving the Performance of the Regulatory System for Major Resource Projects. The IWG developed various tools, such as procedures for the early stages of the regulatory process, guidance on what constitutes a major resource project, and preliminary design of the MPMO Tracker that monitors the progress of proposed major resource projects through the federal regulatory review system.
The Agency participated in analysis of the application and coordination of federal and provincial (Quebec and Ontario) environmental assessment processes in relation to the Ontario-Quebec Continental Gateway Initiative. The goal was to ensure that the environmental assessments of projects resulting from the initiative are conducted in an efficient, effective and timely manner.
The Agency continued to lead the Interdepartmental Registry Team, which was established to foster communication and participation among federal authorities on fulfilling the Act's requirements to provide convenient public access to records relating to environmental assessments. Implementation of an archival system for CEARIS has facilitated information management on completed environmental assessments while maintaining public access to key information. A study was conducted to assess the system that is used by responsible authorities to enter environmental assessment information in CEARIS against current and future business needs. The study highlighted the need for the Agency to develop an integrated information management strategy to increase business flexibility and efficiency.
The Agency continued to promote the implementation of the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals through reviewing proposals and communicating with sponsoring departments in relation to fulfilling the requirements of the Directive.
Training and guidance
Training
The focus of Agency training efforts was the development and delivery of the Transformative Training and Learning Plan (TTLP), an important internal capacity-building curriculum for new and existing Agency employees. The TTLP was designed to support the Agency's transformation as it took on new responsibilities under the 2007 Cabinet Directive on Improving the Performance of the Regulatory System for Major Resource Projects and associated Memorandum of Understanding. Development and delivery of the TTLP targeted filling the Agency's short-term needs and led to the development of four new specialized training packages: Orientation to the Act and Overview of New Roles and Responsibilities; Environmental Assessment Management; Engaging and Consulting Aboriginal Groups; and Comprehensive Studies.
The Agency also offered basic courses to external clients, notably the federal EA community, on the implementation of the Act and of the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals. The Agency also initiated advanced training events using its new videoconferencing equipment to highlight emerging operational policy and guidance products.
Participant responses in post-event evaluations suggest general satisfaction with the training and much interest in additional in-depth training and guidance. This interest was echoed by the federal Senior Management Committee on Environmental Assessment in the fall of 2008, which confirmed continued interest for Agency-led specialized training, expansion of its curriculum, and increased collaboration.
To inform regional office staff in other federal departments, the Agency delivered presentations on its role in coordinating Aboriginal-Crown consultations for major resource projects. Training and ongoing guidance were also provided to federal departments and agencies to assist them in fulfilling their legal obligations in providing meaningful, high-quality and timely information to the public via CEARIS.
Guidance
A key priority was the development of procedures for the environmental assessment phase of projects subject to the new processes and timelines developed under the Cabinet Directive on Improving the Performance of the Regulatory System for Major Resource Projects. The procedures, which cover both comprehensive studies and multi-jurisdictional screenings, provide detailed information, procedural steps, and roles and responsibilities for federal authorities engaged in the environmental assessment process.
The Agency developed an electronic Guide for Comprehensive Studies as an all-inclusive tool for Agency staff members who manage the environmental assessment phase of the federal regulatory process for major resource projects. This e-Guide outlines the main steps in the environmental assessment phase and the relevant Agency activities and tasks associated with each step. It also provides guidance, tools, and examples. While the focus of the e-Guide is on the comprehensive study process, some information is provided for multi-jurisdictional screenings and panel reviews for major resource projects.
The Agency continued to carry out its ongoing responsibilities for projects not subject to the Cabinet Directive on Improving the Performance of the Regulatory System for Major Resource Projects by finalizing an updated Comprehensive Study Process Guide. In addition, an Operational Policy Statement (OPS) was issued on best practices for applying adaptive management measures in federal environmental assessments. Issuance of this OPS fulfilled a Government of Canada commitment, made in response to the review panel recommendations related to the Whites Point Quarry Project, that the Agency would develop guidance on adaptive management by December 2008.
The EAPC produced the Compendium of Resource Documents in Support of the Interim Approach for Determining Scope of Project for Major Development Proposals with Specific Regulatory Triggers under the Act. The compendium contains direction and guidance on the Interim Approach to Scoping and serves as a resource for environmental assessment practitioners who are involved in its application. Refresher courses on how to apply the Interim Approach to Scoping were provided to federal officials by the Agency through Regional Environmental Assessment Committee meetings.
Recognizing a demand for better guidance on SEA, as governed by the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, the Agency contracted leading researchers to undertake a critical review of existing SEA tools and best practices, both internationally and domestically, and to develop a SEA Toolbox to assist federal departments and agencies in conducting SEAs.
2.3 Issues and Challenges
Transformation
The Agency's new responsibilities for major resource projects required a transformation of its organization. There were several challenges in doing this, particularly with respect to recruitment of new staff and accommodations. In relation to recruitment, it was a challenge to advance the many recruitment and staffing processes required throughout the country with the available internal human resources staff. In addition, it proved difficult to recruit experienced professionals through external processes, particularly for positions in the regional offices. This could be attributed to regional labour market competitiveness, as well as the fact that some new positions were only being filled on a temporary basis.
As part of its transformation, the Agency also had an increase in space requirements of approximately 60%. As additional space was required in all six regional offices, as well as at National Headquarters, the Agency had to search for, review, assess, and convert existing and new space in all seven locations. The Agency's ability to complete this transition in a timely fashion was affected by several factors, including the availability and cost of suitable space.
Changing Jurisprudence
The Agency and federal authorities had to respond to changing jurisprudence that raised issues and challenges for the efficient and timely delivery of federal environmental assessment. In June 2008, the Federal Court of Appeal overturned the September 2007 Federal Court Trial Division ruling on the environmental assessment of the Red Chris Mine Project in British Columbia. These decisions had significant implications for how federal responsible authorities determine the type of assessment required under the Act. As a result, some ongoing assessments had to be re-examined to ensure that the type of assessment was consistent with the direction provided by the Court, and in some cases the assessment type was changed. While key federal departments worked collaboratively through the Agency-led EAPC to ensure consistent and coordinated responses, these changes created considerable uncertainty for project proponents, partner jurisdictions and other interested parties, including uncertainty about the availability of participant funding.
Similarly, in April 2008 the Quebec Court of Appeal overturned the March 2006 Superior Court ruling on the environmental assessment of the Lac Doré vanadium mine in Quebec. These decisions had significant implications for the application of the Act in the territory covered by the James Bay and Northern Quebec Agreement (JBNQA). The Court of Appeal concluded that while the Act applies in the JBNQA territory, the federal environmental assessment process to be followed is the one set out in the JBNQA, not the one set out in the Act. The Agency worked in consultation with the Cree and the affected federal authorities to develop an approach to implementation of the Act that would be consistent with the decision.
Both of these cases have been appealed to the Supreme Court of Canada.
Systemic Issues
Since the last amendments were made to the Act in 2003, several important administrative measures have been implemented to address ongoing issues, and substantial new resources were provided as part of the Government of Canada's major resource projects initiative. While these measures have resulted in improvements, systemic challenges to the efficient and effective administration of the Act persist.
When both the Canadian Environmental Assessment Act and a province's environmental assessment legislation apply to the same project, the objective is to conduct a cooperative environmental assessment process that produces the information required to satisfy both parties' requirements. Delays in the federal process on decisions, such as determining who is a responsible authority and what is the scope of a project may result in a provincial process proceeding without the benefit of federal input. This may lead to separate information requests or consultation activities which add to proponent costs and create confusion for public participants. In response, the Agency is working with its federal counterparts to improve its ability to identify when federal and provincial environmental assessment coordination may be at risk, and to take measures within the federal family to address the delays which may result in such an outcome.
While the Interim Approach to Scoping has improved the situation, determining the extent of the project to be assessed (project scoping) continued to be problematic, causing concern for federal authorities, proponents, provinces and the public. Project scoping proved particularly difficult in situations where there were potential environmental effects on areas of federal jurisdiction, but those effects were not closely linked to a federal authority's decision in relation to the project.
Diffuse accountability, resulting from the self-assessment model used in the Act, continued to cause problems for the environmental assessment of larger projects when there were multiple federal authorities with independent legal responsibilities. Proponents noted that requests for information came at different times during the process through different channels, and there were cases of multiple assessments in relation to the same project. While the federal environmental assessment coordinator provisions introduced in 2003 assist with this challenge, they do not provide overarching legislative authority to ensure a timely and effective process.
The value of review panels has been a defining characteristic of the Act since it came into force in 1995. Although experience with review panels has generally been positive, concerns have been raised by stakeholders primarily in regard to process delays associated with referral of a project to a review panel, consultation with Aboriginal groups, proponent responses to information requests and submission of the panel's report. The Agency has responded to these challenges by implementing improvements under the current framework.
The PFP experienced challenges related to delays in the application process resulting from incomplete submissions. The need to obtain additional information caused delays, hindering recipients' preparation for and participation in Aboriginal and public consultation activities associated with environmental assessments. These difficulties also contributed to the failure to disburse the total amount of funding available.
2.4 Lessons Learned
The Agency experienced a challenging and productive year in 2008-2009, as it took on new responsibilities under the 2007 Cabinet Directive on Improving the Performance of the Regulatory System for Major Resource Projects and delivered important regulatory measures to support implementation of the Government's Economic Action Plan. The Agency was transformed as it built the organizational structure, and recruited and trained staff to play an enhanced leadership role in federal environmental assessment.
However, while process and regulatory improvements have been developed for specific sectors, these do not address some of the underlying systemic issues discussed in the previous section. The Agency will continue to work with partners and stakeholders to develop better means of implementing the process and innovative approaches to address issues; however, many of these issues cannot be resolved without legislative changes. Therefore, the Agency is beginning to prepare for the review of the Act by a Parliamentary Committee, which is scheduled to begin by June 2010.
The Joint Review Panel (JRP) appointed to review and assess the Mackenzie Gas Project has experienced significant delays in completing its mandate. Notwithstanding the magnitude of this project and the challenges associated with assessing its impact, there is a need to improve the timeliness and predictability of complex joint review processes. The Agency has been working closely with its partners in this joint review process, the Mackenzie Valley Environmental Impact Review Board and the Inuvialuit Game Council, to provide technical and administrative support to the Panel with a view to reducing the prospect of further delays without compromising the independence of the JRP or the quality of its report. Once the panel report has been completed, the Agency and its partners intend to conduct an examination of lessons learned to avoid such delays occurring again.
The evaluation of the relevance, success and cost effectiveness of the Agency's administration of the PFP over the past five years highlighted some key lessons and opportunities for improvement. Notably, the evaluation recommended that the Agency diversify its approaches to promoting awareness of the program. Improvements in this area will encourage more parties to apply for funding to assist their participation in comprehensive study and review panel environmental assessments, and, in turn, contribute to more effective public input to those processes. The Agency is developing specific actions to address those recommendations.
Through experience, the Agency is learning many lessons on integrating Aboriginal consultation into the environmental assessment process. Gathering the information to enable the federal Crown to discharge its consultation responsibilities requires a coordinated and collective effort by the Agency, federal authorities, project proponents, and, as appropriate, review panels or joint review panels. One key lesson has been the importance of clearly defining the roles of review panels and joint review panels in this regard. The Agency has adopted clear and consistent language in panel terms of reference to clearly set out the responsibility of the panel to invite information from Aboriginal groups related to the nature and scope of potential or established Aboriginal rights or title in the area of the project, as well as information on the potential impacts or potential infringement that the project may have on potential or established Aboriginal rights or title. This is making an important contribution to assisting the federal Crown in discharging its consultation responsibilities.
