Content Analysis

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Summary of Findings:

State of Environment Report

· Climate change will be most predominate in the North

· The North is stated to be less diverse in its economy then ten years ago

· Natural resource sector such as for diamonds, minerals, oil and gas exploration and production has been and is the main driver of GDP in the NWT

· Waste issue “Majority 92% of hazardous waste spills come from oil-gas extraction and mine tailing, spills have rapidly increased since 2000.”

· the population is migrating towards urbanized areas in which 75% of the population lives and languages are being lost which results in loss of TEK.

· Majority of human activities is in the Beaufort Sea- Mackenzie Delta Region therefore areas to focus on – but not entirely

Because the NWT is dependent on natural resources for its economy and is facing an array of environmental issues it is very important that environmental assessment fosters its objective of sustainable development.  As the issue is social, economic and environmental

Legislative Findings

The environment overlaps jurisdiction boundary

· Before we can examine environmental law, one needs to be aware of the legislative process in Canada and the divisions of powers as set by the Constitution Act of 1867.   The environment overlaps and there are several conflicts on the issue. There has been several instances, in which either provincial or federal government(s) have been taken to court over invasion of powers.  

In some cases the responsibility is left to the courts

· The role of courts is every important and select court cases set the precedent for similar situations. The very fact that many cases relevant to environmental assessment have gone to the courts indicate 1) the roles and responsibilities of authorities are unclear  2)  EA is evolving process.

o       Parks Canada for example was taken to court by failing to class an environmental assessment properly (as screening as opposed to comprehensive)

CEAA

-        Responsible authorities are those departments triggered through various pieces of legislation. Responsible authorities then act as the lead in the environmental impact assessment process and are allowed to delegate responsibility to others.  Responsible Authorities play a very significant role in the environmental assessment process

o       RA’s may not be completely aware of their power of authority

§       This is where the deficiencies of capacity comes into play 

· Within the Act, cumulative affects must be considered but there is no guidance or level of detail required.  Thus when the issue was brought to the courts as a concern not being address, the courts concluded the scope of cumulative effects assessment is the discretion of the responsible authority:

o       Linden JA: “while the dictates of the law must be followed, the process is flexible… The Court must ensure that the steps in the Act are followed, but it must defer to the responsible authorities in their substantive determination as to the scope of the project, the extent of the screening and the assessment of cumulative effects …it is not for the judges to decide what projects are to be authorized, but as long as they follow the statutory process, it is for the responsible authorities to do so” – Bow Valley Naturalist Society v. Canada (Minister of Canadian Heritage

· Canadian Environmental Protection Act - Focused on substances, limited but useful

· Species at Risk Act – has some limitations. What about species not on the list?  How about when species are not listed apart of Valued Ecosystem Components of the environmental assessment? There is no need to include it

· Fisheries Act – Certain provisions trigger an EIA

· The CEAA requires that legislation relevant to the environmental assessment be identified, there should be mandatory consideration of certain legislation

Regional Environmental Assessment (REA) and Strategic Environmental Assessment (SEA)

· REA is not a new concept there is literature on the topic and initiatives are just starting but not implemented. 

Indirectly related but concerning:

· Schacter et al raise the importance of Multilateral Environmental Agreements, particularly important for the NWT where there is greater exposure to global environmental issues such as pollution from outside sources and climate change.  These issues are too large to be dealt on the individual level of EIA and are reasons for REA and SEA. Schacter points out that “NAFTA’s investment rules limit any requirements to use local labour, business, services or materials in a project, regardless of whether there is discrimination or not. The WTO limits export prohibitions, potentially making a requirement to process raw diamonds in the North a violation of its rules.” This then inherently affects impact and benefit agreements – which are often agreements to unresolved issues in the EIA process.  

Cumulative Effects Assessment (CEA)

As shown in the presentation, literature reviewed: (Dube 2003;Hacking 2008; WarnBack 2009) identify that: CEA is out of the scope for EIA, for CEA is a complex one which rests on the responsibility of the proponent.  CEA needs to be carried out on the REA and SEA level:

· “ the independent reviewers of an EIA for a mining project in Canada's Northwest Territories observed that while project-specific assessment is arguably not the appropriate forum to address cumulative impacts and land use planning, it becomes a focal point for them when higher level planning processes are absent….By default, the EIAs of mega-projects have had characteristics ascribed to strategic environmental assessment, SEA) [...]. They have been thrust into the breech to fill gaps for policy and/or regional planning of areas larger than many European countries, and have served as a catalyst for broader government initiatives” (Hacking, 2008