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22 LEXPERT | 2017/18 | WWW.LEXPERT.CA In a significant step in the federal government's review of key envi- ronmental and regulatory legislation and processes, an Expert Panel established by the Minister of Environment and Climate Change, released its report, Building Common Ground – A New Vision for Im- pact Assessment in Canada, e Final Report of the Expert Panel for the Review of Environmental Assessment Processes 1 in April 2017. In June, the federal government released a discussion paper outlining a new approach to environmental assessments and regulatory reviews. 2 In the April Report, the Panel recommends significant changes to the current environmental assessment, to the extent that even the term "environmental assessment" (EA) has been amended to "impact assessment" (IA) in order to broaden the focus from merely the bio- physical to include the five pillars of sustainability: environmental, social, economic, health and cultural. e Report and the recommen- dations it outlines, including the creation of an independent federal Impact Assessment Authority, have been positioned by the federal government as key to restoring public trust and reducing protracted environmental protests related to major projects. However, critics have suggested that the Report will lead to a period of uncertainty for project proponents and developers. What is clear is that proponents of major mining projects will want to track the discussion of this Re- port and the implementation of its recommendations closely. Background On August 15, 2016 the Minister of Environment and Climate Change announced that a four person Expert Panel was established to conduct this review. In the eight months that followed, the Panel sought input from Indigenous Peoples, provinces and territories, key stakeholders and other Canadians. e results of their research, in- cluding 48 recommendations regarding legislative and regulatory changes to the current environmental assessment processes associ- ated with the Canadian Environmental Assessment Act, 2012, are set out in the Report. If adopted, the Report's recommendations would alter the current approach to federal EA processes and could have a substantial impact on mining project developers and proponents. In particular, and for the purpose of this article, we will focus on the Report's recommendations that redefine triggers of federal impact assessments and would shi the assessment process to a three-stage approach once triggered. Triggers e current Panel's recommendations expand the number of projects that trigger an environmental assessment by outlining the threshold as "activities with potential impacts on matters of federal interest that are consequential to present and future generations." 3 Accord- ing to the Report, "the term 'consequential' is of utmost importance in triggering meaningful federal IA" 4 and is meant to eliminate Proj- ects with a "trivial impact" on federal interests from triggering IA, a distinction that the Report indicates can be accomplished through a materiality test. Examples of activities that are consequential to pres- ent and future generations include those that "affect multiple matters of federal interest; are of a duration that will be multi-generational; and/or extend beyond a project site in geographic extent." 5 However, the report does not supply concrete examples of testing what would constitute a consequential impact. A further trigger allows "propo- nents or any person or group to request that a project require a federal project IA." 6 e Expert Panel anticipates that hundreds of Project IAs would be triggered each year under this proposal. It notes that this compares to the current approach under CEAA 2012, which ap- plies to dozens of projects annually, and the legislation that preceded CEAA 2012 that applied to thousands of projects annually. Three Stage Focus e proposed three-stage federal IA approach, comprised of a Plan- ning Phase, a Study Phase and a Decision Phase, represents a signifi- cant departure from the current environmental assessment process. e recommendations in the Report look to streamline the hearing process and focus on issues of non-consensus, incorporate an inde- pendent decision maker, and build in transparent, evidence-based decisions. Overall, the process outlined in the Report focuses on out- comes for projects on sustainability using net benefits, rather than the current "significant adverse environmental effects" test. e Planning Phase is the biggest change from the early stages of the current environmental assessment process. According to the Re- port, one of the primary reasons for the suggested amendment is that the starting point for the current environmental assessment is "per- ceived to be too late for communities, stakeholders and Indigenous Groups to provide input into project design or alternative means by which a project could be realized." 7 In an attempt to discipline the IA processes, the Panel recommends that the IA authority "be required to develop an estimate of the cost and timeline for each phase of the assessment and report regularly on the success in meeting these esti- mates" 8 during the Planning Phase, and that the estimate would be made public. e IA timelines are to be established on a project-by- project basis that takes into account each project's specific context and issues, and that should take into account timelines "applicable to any provincial assessment process and where an Indigenous jurisdic- tion was leading its own process." 9 e Study Phase is essentially the same as the current federal environmental assessment process. e Decision Phase follows the completion of the Impact Statement, "Building Common Ground" Report Released: How the Recommendations May Affect Mining Companies by Christine Kowbel, Karen MacMillan, Khaled Abdel-Barr

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