Viewpoint: The Great Debate, Part II: More People Appointed to Review Proposed Trans Mountain Expansion Project
May 19, 2016
In January 2016, I wrote an article about the commencement of the new federal government’s promised review of its environmental assessment process. Given that the existing process has been an issue that has seriously divided Canadians — and is of clear national importance — a review seemed timely. Then, nothing happened.
On May 17, 2016, the Minister of Natural Resources (Minister) announced the appointment of his long-awaited “Ministerial Representative” on the Trans Mountain expansion project. Unfortunately, this announcement doesn’t provide much insight on the government’s long-term plans. However, it appears that the government is content to continue its current approach of imposing additional requirements on project proponents on an interim and ad hoc basis.
On January 27, 2016, the new Liberal government announced its review of the existing statutory federal environmental assessment process. That process had been put in place by the previous Conservative government and became a lightning rod for a national debate that appears to have been one of the reasons that the Liberals won the election.
At the same time, the government announced the principles that would apply to projects that were then being assessed under the existing process.
Finally, the government announced particular measures for certain projects, including that it would appoint a “Ministerial Representative” for the Trans Mountain project to engage communities, including Indigenous communities potentially affected by the project, seek their views and report back to the Minister.
The Minister has now appointed a “Ministerial Panel” as his representatives (rather than one representative as suggested in January), which includes Kim Baird, former chief of the Tsawwassen First Nation; Annette Trimbee, president and vice-chancellor of the University of Winnipeg; and Tony Penikett, a former premier of the Yukon.
The panel is supposed to create further opportunities for people from potentially affected communities close to the proposed pipeline and shipping route to provide their views on the project. The dialogue is to be guided by the priorities of those communities and is not intended to redo the National Energy Board’s review of the project. Indigenous groups will be invited to engage with the panel; however, this engagement will not substitute the Crown’s “deep and meaningful” consultations with Indigenous Peoples.
Officially, the panel’s mandate is to complement the National Energy Board’s environmental assessment and regulatory review, and to identify whether there are any additional views that could be relevant to the government’s final decision. In order to provide the best advice, the panel is supposed to:
- Review and consider input from the public via an online portal
- Meet with local stakeholder representatives in communities along the pipeline and shipping route
- Meet with Indigenous groups who wish to share their views with the panel
- Submit a report to the Minister no later than November 1, 2016.
The Minister has committed to making this report public. The government must make a decision on the Trans Mountain project by December 2016, a date that has already been extended by the current government.
Don’t Hold Your Breath for a New Federal Process
On December 4, 2015, the new government said in its speech from the throne that it would introduce new environmental assessment processes. Apparently, in hindsight, the introduction of new processes shouldn’t be confused with the introduction of new laws that would be required to address and codify changes to the existing legislated environmental assessment process. For those waiting for any certainty on what the future Canadian environmental assessment process and requirements will be, you will have to continue to wait.
In the Meantime, There Will Be Increased Uncertainty
For now, the government appears content to continue imposing additional requirements on an interim and ad hoc basis. This may be expedient from a political perspective. From a policy perspective, it can be argued that some flexibility needs to be part of a robust environmental assessment process. However, the more measures that the government imposes on a project — measures that somehow have to work as a cohesive legal whole against the backdrop of an existing legislated process — have to create additional risk and uncertainty.
What the Government’s Actions Tell Us About its Future Plans
At least two of the government’s five principles to guide its review of the existing federal process are focused on a greater role of the public and Indigenous Peoples. Whether or not ministerial panels such as this one become part of the long-term changes to the existing process, the direction of greater involvement of communities and Indigenous groups seems certain; less certain is who these communities and Indigenous groups are. Is it just those located, for example, along the pipeline and shipping route, as appears to be the case here? Ultimately, the government will have to decide this issue as part of its broader review.
Overall, it appears that I was wrong when I suggested in part I that talking about environmental assessments had become sexy. It appears that talking about environmental assessments during election campaigns is sexier than talking about them afterwards. Regardless, it may still be a good idea to start talking about these some more.
The opinions expressed in this article are intended to promote thought and discussion and do not necessarily reflect Sandy’s thoughts and are not to be attributed to Blakes or clients of Blakes.
Blakes and Blakes Business Class communications are intended for informational purposes only and do not constitute legal advice or an opinion on any issue.
We would be pleased to provide additional details or advice about specific situations if desired.
For permission to reprint articles, please contact the Blakes Client Relations & Marketing Department at firstname.lastname@example.org. © 2019 Blake, Cassels & Graydon LLP