Sustainable Resource Management Branch

PUBLICATIONS

REPORT
OF THE
CONSULTATION ON SUSTAINABLE DEVELOPMENT IMPLEMENTATION (COSDI)

June , 1999 

TABLE OF CONTENTS

GLOSSARY OF TERMS
EXECUTIVE SUMMARY
BACKGROUND
THE VISION AND ATTRIBUTES
RECOMMENDATIONS

1. Provincial Plan
2. Planning at the Municipal Level
3. Planning at Large Area Level
4. Development Assessment and Review
5. Public Participation
6. Federal Provincial Interface
7. Aboriginal Interface
8. Accountability

APPENDIX A Principles and Guidelines of Sustainable Development
APPENDIX B COSDI Core Group
APPENDIX C COSDI Advisory Committee

GLOSSARY OF TERMS

• Aboriginal Peoples - The definition of "Aboriginal peoples" being used in this document is the legal definition contained in the Constitution of Canada. This includes Indians (on and off reserve Status Indians, First Nations, non-Status Indians, Treaty and non-Treaty Indians), Metis and Inuit.

• Assessment and Review of Effects – an assessment and review of all sustainability factors such as environmental, economic, social, cultural and human health. The terms "assessment and review of effects", "assessment and review process", "assessment process", "assessment and review", and effects assessment will be used synonymously.

• Effect - is a neutral term including positive and negative effects of a plan or project.

• Guidelines - refer to instructions provided to the proponent for the information requirements and the conduct of an effects assessment.

• Manitoba Principles and Guidelines of Sustainable Development – the principles and guidelines of sustainable development as adopted by Manitoba and set out in The Sustainable Development Act.

• Public - For the purposes of this report, has two usages. For notice provisions and a variety of other matters, "the public" means the entire public. In other cases, especially related to participation in effects assessment or planning, "the public" means all those persons whose interest in involvement is neither frivolous nor vexatious.

• Proponents - are any persons, including the Government, interested in proposing a plan, significant resource allocation or a development.

• Resources - as used in this report refers to Manitoba’s natural resources, air, aquatic and terrestrial, unless otherwise indicated.

• Sustainable Development - is defined in The Manitoba Sustainable Development Act as "meeting the needs of the present without compromising the ability of future generations to meet their own needs".

• Sustainable Development Components - The use of the phrases "sustainable development components", "sustainable development", "sustainability", and "sustainability factors" in recommendations all include economic, social, environmental, human health, and cultural considerations.

• Terms of Reference – Refer to instructions provided to hearing panels such as the Clean Environment Commission for the conduct of such activities as public hearings.

EXECUTIVE SUMMARY

General Vision Statement

Vision Attributes

The proposed framework will:

• Build upon the decision-making processes currently in place in Manitoba and maintain the positive aspects of those processes, while facilitating better linkages and opportunities for cooperative action.

• Require review and decision-making processes to be effective, efficient, transparent, timely, inclusive and accountable.

• Require monitoring regimes that will measure the effectiveness of decisions taken, provide human and fiscal resources for assessing proposals and ensuring compliance with and enforcing decisions taken. Develop meaningful, and practical indicators which will help measure the sustainability of decisions taken.

• Ensure, while providing for transition and the unforeseen, that planning drives development, as opposed to development driving planning.

• Provide for provincial sustainable development policies and strategies to guide the development of large area planning. These will provide the context for district or municipal development plans, which will, in turn, provide the setting for the assessment and review of specific development proposals.

• Require the development of large area and municipal planning and strongly encourage the formation, expansion or amalgamation of planning districts.

• Provide flexibility to accommodate the institutional, social, cultural, ecological and other variations across all regions of Manitoba: urban, rural, Crown land north and municipal south.

• Enshrine effective public participation in strategy, policy and legislation development, resource and land use planning, significant resource allocation and environmental management decision-making processes. Ensure easy access to current information from all relevant departments and agencies.

• Ensure that the decision-making processes and resultant decisions recognize and take into account other governments (federal/ provincial/ municipal/ Aboriginal) and obligations under interprovincial, national and international agreements.

• Encourage an approach to development assessment review (effects assessment) whereby proponents, regulators, municipal decision-makers and the public jointly identify and design information needs and review requirements for the development review to reduce the need for lengthy hearings and possible litigation.

• Recognize the long-term nature of implementing parts of the Vision, and provide for a managed, incremental transition, which will also accommodate the required public and institutional education.

• Develop, adopt and implement province-wide sustainable development policies.

• Review the existing Sustainable Development Strategies to ensure they provide an integrated, comprehensive, understandable and current framework for implementing sustainable development.

• Require integrated sustainable development planning on a large area basis, such as watersheds.

• Implement the policies of large area plans, for those parts of Manitoba organized into municipalities, through mandatory development, provincial and public review and provincial approval of municipal or district sustainable development plans and their amendments.

• Allocate resources subject to the large area sustainable development plans, and/or through the effects assessment and review of significant resource allocations and developments -- following the principle that good work which is up to date need not be done again.

• Require all municipalities to review and adopt development plans that reflect the components of sustainable development, and provide support to municipalities to implement such development plans.

• Include in the concept of effects assessment all sustainability factors such as environmental, economic, social, cultural and human health effects.

• Include a component in the effects assessment process that will examine the extent of planning and pre-licensing activities. Where planning and pre-licensing activities clearly fulfill effects assessment process and information requirements, there will be opportunity to credit those activities towards the assessment process.

• Provide opportunity for effective and meaningful public participation and consultation processes at all levels of planning, significant resource allocation and effects assessment and review.

• Adhere to interprovincial, national, international obligations and commitments made by Manitoba relating to environmental, resource and land use decision-making.

• Work in partnership with Aboriginal peoples to develop a cooperative protocol to ensure effective involvement of Aboriginal peoples where land use and resource planning, significant resource allocation, environmental licensing and regulatory mechanisms, including effects assessment affect Aboriginal peoples and their lands or their ability to exercise their treaty and Aboriginal rights.

• Establish a Sustainable Development Auditor to monitor and report publicly on the implementation of sustainable development within the provincial government.

BACKGROUND

Sustainable Development is defined in The Sustainable Development Act as "meeting the needs of the present without compromising the ability of future generations to meet their own needs". The Act, proclaimed July 1, 1998, brings into law the Manitoba Principles and Guidelines of Sustainable Development which are to guide the behavior and decision-making of all government departments, agencies and Crown corporations.

In March 1997, the Premier announced the intent of government to launch a multi-stakeholder consultation initiative "to consider and make recommendations to government on how Manitoba can best implement sustainable development principles and guidelines into decision-making, including environmental management, licensing, land use planning, and regulatory processes".

In the fall of 1997, an eighteen-member committee (the Core Group), co-chaired by two government staff, was struck to undertake the initiative. The members of the Core Group represent a variety of interests, experience and perspectives. Each agreed to participate, not as a representative of an organization, but on the basis of his/her own knowledge and experience with resource management, planning and environmental approval processes.

To provide an assurance of a representative process, invitations were sent to specific organizations, such as sectoral associations, environmental groups, municipal associations, local government, professional organizations, industry, business, Aboriginal and social groups to form an Advisory Committee to review the work of the Core Group and provide feedback for their consideration. The result was a sixty member Advisory Committee (Appendix C) with members representing their organizations in providing advice to the Core Group.

Over a period of eighteen months, the Core Group met regularly. They formed smaller issue-specific subcommittees, discussed process with government staff, researched the New Zealand experience with implementing sustainable development, conducted case studies, engaged in discussions with the Advisory Committee in workshops and reviewed written submissions from Advisory Committee representatives. Having set out and consulted on a vision and vision attributes, a series of recommendations were formulated to implement the Vision.

The Advisory Committee received the Core Group meeting notes, background information, the reports of subcommittees and draft final reports for their review and comment. Three workshops were held for the Advisory Committee’s participation in the discussions. While the Advisory Committee was inconsistent in its participation level, workshop attendance was high, ranging from 50 to 25 members per session. Written submissions, although welcomed, were few; however, the written submissions that were received were comprehensive and constructive. Aboriginal groups, although invited to participate on the Advisory Committee, did not respond to the invitations.

During the early Core Group deliberations, it became apparent that there was a need to include resource planning and significant resource allocation activities in the considerations. Those activities are seen as integral components of land use planning and environmental management practices.

The Core Group identified many strengths in the existing decision-making mechanisms. They also saw opportunities for improvement and that the mechanisms could be strategically linked for more effective and efficient decision-making. The development of formal processes that would provide for decisions to be made in the context of provincial policies and large area plans would ensure a more integrated approach to land, water and other resource use. Large areas could be formed around distinct areas such as the Capital Region, or natural geographic regions, such as watersheds.

The Core Group saw potential for the public to play a more meaningful role in sustainable development decision-making, especially at the early stages of planning, significant resource allocations and development reviews. It was noted that effective public involvement at the "front end" of planning and project design could greatly reduce the need for adversarial, costly and time-consuming hearings and potential court challenges later in a review process.

These ideas are viewed by the Core Group to be consistent with the Principles and Guidelines of Sustainable Development (Appendix A) as set out in The Sustainable Development Act.

This report sets out a vision for an integrated decision-making framework, along with the attributes of this framework. It also recommends actions necessary to achieve this vision. The Vision and the recommendations were developed for the consideration of the Government of Manitoba as a means to incorporate and implement the principles and guidelines of sustainable development in environmental and land use decision-making (including significant resource planning and allocation decisions) across Manitoba.

The adoption and implementation of these recommendations will affect activities mandated under provisions of such legislation as The Environment Act, The Planning Act, The City of Winnipeg Act, The Northern Affairs Act, various Manitoba resource management acts, and the associated regulations.

The Core Group recommends that government proceed with the process of implementation of the recommendations. It is recognized that there will be many issues associated with implementation of the Vision and recommendations, and that complete implementation must proceed over the long-term. The Core Group recommends that Manitoba will include further opportunities for discussion of these issues during implementation planning, and that targets, with clear timelines, will be set for implementation of the recommendations contained within this report.

THE VISION AND ATTRIBUTES

The Core Group, in consultation with the Advisory Committee, agreed on a vision for decision-making in Manitoba that will facilitate the implementation of sustainable development in this province. It centers on the need for a strong planning base and linkages between planning, significant resource allocation and the assessment and review of specific developments. The Vision includes a general statement, with a series of attributes designed to provide clarity and definition to the Vision.

General Vision Statement

Manitobans working together to develop an integrated framework for large area and municipal planning, significant resource allocations and environmental management decisions to ensure sustainable development in Manitoba.

Attributes

The proposed framework will:

• Build upon the decision-making processes currently in place in Manitoba and maintain the positive aspects of those processes, while facilitating better linkages and opportunities for cooperative action.

• Require review and decision-making processes to be effective, efficient, transparent, timely, inclusive and accountable.

• Require monitoring regimes that will measure the effectiveness of decisions taken, provide human and fiscal resources for assessing proposals and ensuring compliance with and enforcing decisions taken. Develop meaningful and practical indicators which will help measure the sustainability of decisions taken.

• Ensure that, while providing for transition and the unforeseen, planning drives development, as opposed to development driving planning.

• Provide for provincial sustainable development policies and strategies to guide the development of large area planning. These will provide the context for district or municipal development plans, which will, in turn, provide the setting for the assessment and review of specific development proposals.

• Require the development of large area and municipal planning and strongly encourage the formation, expansion or amalgamation of planning districts.

• Provide flexibility to accommodate the institutional, social, cultural, ecological and other variations across all regions of Manitoba: urban, rural, Crown land north and municipal south.

• Enshrine effective public participation in strategy, policy and legislation development, resource and land use planning, significant resource allocation and environmental management decision-making processes. Ensure easy access to current information from all relevant departments and agencies.

• Ensure that the decision-making processes and resultant decisions recognize and take into account other governments (federal/ provincial/ municipal/ Aboriginal) and obligations under interprovincial, national and international agreements.

• Encourage an approach to development assessment review (effects assessment) whereby proponents, regulators, municipal decision-makers and the public jointly identify and design information needs and review requirements for the development review to reduce the need for lengthy hearings and possible litigation.

• Recognize the long-term nature of implementing parts of the Vision, and provide for a managed, incremental transition, which will also accommodate the required public and institutional education.

RECOMMENDATIONS

During its discussions, the Core Group assessed the current situation in Manitoba through the use of case studies, government staff presentations and interviews, and staff research. The findings were mixed. Many of the necessary components of an effective decision-making system are in existence today; however, there are some areas where improvements could be made to effectively implement the principles and guidelines of sustainable development into decision-making processes and decisions, including environmental management, licensing, land use planning, resource planning and allocation, and regulatory processes.

The Core Group believes that the adoption and implementation of the following recommendations would advance considerably the orderly and effective implementation of the Manitoba Principles and Guidelines of Sustainable Development in Manitoba’s environmental, resource and land use decision-making. It is suggested that the Government consider the development of an implementation plan with targets and timelines that reflect an incremental transition for the implementation of these recommendations.

1. Provincial Plan

Manitoba has, over the years, developed and implemented many individual components of sustainable development. Manitoba has a set of Principles and Guidelines of Sustainable Development, a series of Sustainable Development Strategies - sectoral and regional, Provincial Land Use Policies, and an extensive set of associated legislation and regulations; however, further integration of these measures in environmental, land use and resource decision-making is required.

Manitoba has adopted Provincial Land Use Policies and an expanding set of sustainable development strategies. These instruments need to be reviewed, revised and broadened to ensure all components of sustainable development (economic, environmental, social, cultural and human health) are accommodated, that potential conflicts are removed, and that new knowledge and provision for periodic public review are incorporated. The revised policies and strategies would be the backdrop for all planning within Manitoba to be used in an integrated manner. In the review of proposed developments, in particular, efforts are seldom made currently to coordinate decision-making processes and there is often little concerted effort to ensure compliance with the existing sustainable development strategies.

The Core Group, therefore, is recommending a structured, integrated approach to sustainable development decision-making with respect to environmental, land use and resource allocation decisions. It is recommending that decisions be made in context with each other, through comprehensive planning, resource allocation and development review processes.

Recommendations

It is recommended that:

Sustainable Development Policies and Strategies

A. Manitoba develop, adopt and implement province-wide sustainable development policies. The policies would address natural resource planning and allocation, environmental management, land use planning and development review processes and regulatory processes to ensure that each of these considers all of the sustainable development components (economic, environmental, social, cultural and human health). The current provincial land use policies could be the starting point for a complete set of sustainable development policies.

B. Manitoba review the existing Sustainable Development Strategies to ensure they provide an integrated, comprehensive, understandable and current framework for implementing sustainable development in Manitoba.

a) Regular public reviews of these strategies are needed to keep the strategies current with contemporary knowledge and values. Adjustments should be made to remove conflicts and provide integrated direction for land use and resource planning, significant resource allocations and development review processes.

C. Relevant legislation (The Environment Act, The Planning Act, The City of Winnipeg Act, The Northern Affairs Act, The Municipal Act, the resource management acts) be reviewed and revised through a meaningful public consultation process in order to ensure that the decision-making processes are compatible with the Manitoba Principles and Guidelines of Sustainable Development, the best available information and the recommendations set out in this report.

2. Planning at the Municipal Level

Manitoba primarily relies on specific development opportunities and municipal jurisdictions for planning. For the most part, planning today is land use planning. In order to effectively implement the principles and guidelines of sustainable development, planning must consider all the elements of sustainable development, not just land use. Environmental, economic, social, cultural and human health considerations become important in the planning context.

Well over half of municipalities in rural Manitoba are covered by district or municipal land use development plans. A growing number of rural municipalities are taking interest in forming planning districts and adopting development plans, largely as a result of the shift to value-added production in the agricultural economy. Planning, in rural Manitoba, is voluntary. As a result, there are many areas in Manitoba where there are no formal development plans, and development takes place in a relatively uncoordinated manner, guided only by provincial land use policies.

The City of Winnipeg, on the other hand, is required to plan. The City of Winnipeg’s development plan (Plan Winnipeg) has, under recent reviews, been broadened to embrace sustainability factors.

Recommendations

It is recommended that Manitoba:

Municipal/District Plans

A. Require municipalities to review existing development plans within a reasonable time period, to;

1. Include criteria for acceptability of developments and specify types of developments that are considered compatible and incompatible with the local area; and
2. Ensure that development plans reflect the components of sustainable development.

B. Develop criteria, in consultation with municipal governments and the public to assist in the assessment of development plans for sustainability.

C. Require all municipalities/local governments, which do not currently have development plans, to adopt development plans that reflect the components of sustainable development.

D. Provide support to assist municipalities to implement A), B) and C) above.

E. Encourage municipalities to join together to plan on a district basis.

F. Encourage district planning boards, conservation district boards and regional or local economic development boards to cooperate and coordinate their activities.

G. Require all municipalities and district planning boards to undertake meaningful public reviews of their development plans no less than once every five years.

3. Planning at Large Area Level

Local planning and development decisions must take into account ecological as well as economic, social, cultural and human health considerations. Development decisions must be made with knowledge of the physical and biological relationships that define those systems. Currently, adequate information is lacking with respect to physical and biological aspects of the natural systems in which Manitobans live and where development activities occur. The provincial sustainable development policies and strategies, alone, will likely be too general in nature to be functionally applied to municipal development plans and project decisions. Achievement of sustainable development requires an effective linkage between the broad provincial sustainable development policies and strategies and municipal/local government development plans, resource planning and allocations and specific development decisions. (See Diagram 1)

Linkages should be made by dividing Manitoba into "large areas" for which there would be developed "large area sustainable development plans". The large areas would be defined in consultation with Manitobans and conform to natural or demographic boundaries, such as watersheds or the Capital Region. This would provide the vehicle to assemble information/science respecting the ability of the environment to sustain and absorb, and rebound from the impacts of human activity, to know the threshold limits of the environment and natural resources. Conducting studies and developing sustainable development plans on the basis of natural boundaries such as watersheds or ecosystems will help understand the environmental and physical restraints within which economic, social and cultural development, or the protection and enhancement of the natural environment and human health, are allowed to occur.

Developing large area sustainable development plans on natural boundaries such as watersheds would provide the opportunity to develop the information and knowledge of ecosystems across administrative and political boundaries, over larger landscapes for long periods of time and across land, water and air. An objective of large area planning would be to identify the main issues that must be dealt with in the long term (i.e. in excess of five years), if the values of the ecosystem are to be maintained or improved; to set targets and to ensure that those priorities are implemented. (See Figure 1)

The large area sustainable development plans will be developed by multi-stakeholder advisory committees and subsequently adopted by Manitoba as extensions to the broad provincial sustainable development policies and strategies. The implementation of these plans will be slightly different in that part of Manitoba that is predominately organized under the auspices of The Municipal Act, The Planning Act and The City of Winnipeg Act than that part of Manitoba that is predominately Crown land.

The Core Group is proposing that the large area plans in "municipal Manitoba" would form the foundation for mandatory detailed sustainable development plans for municipalities or planning districts (local plans). Local development plans reviewed and approved by Manitoba would bring into effect the policies of the large area plans. Representatives of the area municipalities, amongst others, would be represented on the Large Area Sustainable Development Planning Advisory Committee. It is not envisaged that Large Area Planning Advisory Committees would become another level of planning authority or level of government. In some predominately Crown land areas there may be no local planning entity. In these cases, the large area sustainable development plan would be the sole operative plan.

Given the state of land and resource-based information available today, it is anticipated that the development of large area plans will vary significantly in their level of detail from one area to another. Some may be based on limited research and comprised largely of expanded principles and guidelines, while others may include more comprehensive studies and result in overlays for zoning and specific development opportunities, protected areas, and existing and potential land, water and other natural resource uses. The arrangement of decision-making authority between local government and Manitoba would not change. Specific developments meeting provincial regulatory threshold criteria would be subject to the provincial effects assessment process. The breadth of the assessment would be determined in part by the detail of the municipal/district development plan and the conformity of the proposed development with the local development plan.

The effects assessment process would also be influenced by the type, extent and quality of planning in a large area. For instance, if a development or development type is explicitly contemplated in a plan, the need for the development may not be as relevant as a subject for review under the assessment. On the other hand, where a plan is very general in nature, the need for and the land use/resource implications of the development may need to be in the scope of the assessment along with the environmental, economic, social, cultural and human health effects. Within this range, it is hoped the more thorough planning will, in time, become predominant.

Resource allocations in excess of a specified threshold would be subjected to an effects assessment, usually as a part of the assessment of a specific development. The initial stage of the assessment would be to determine the detail of the relevant municipal or large area plan, its public acceptability, and the degree of conformity of the proposal with the plan. The greater the detail of the plan, its public acceptability, and the conformity of the proposal with the plan, the greater the likelihood of a more simple project-specific assessment. That is, the effects assessment would ensure all of the relevant issues have been appropriately dealt with, either at the planning stage, or at the proposal stage. (See Figure 2) The assessment could result in the approval of the proposed development or resource allocation with terms and conditions, or its rejection, normally for environmental or other reasons, if it proved to be non-sustainable.

Recommendations

It is recommended that:

Integrated Large Area Planning

A. In order to implement the provincial sustainable development policies (including the provincial land use policies) and strategies, Manitoba requires integrated, sustainable development planning on a large area basis. Such planning areas would likely be based on watersheds, geographic regions or urban-centered regions (e.g. Capital Region). The strong preference for the Core Group is to maximize the use of natural boundaries such as watersheds for defining the large planning areas. It is important that these large area plans, in total, eventually cover the entire province with minimal overlaps.

B. The large area planning process address:

1. The integration of the sustainable development components.
2. The alternative land and resource allocation and commitments within the plan, cumulative impacts of the plan, commitments under interprovincial, national and international agreements to the protection of flora and fauna and protected areas undertaken by Manitoba, and the "precautionary principle", wherever possible. NOTE: The degree to which the planning process can address cumulative impacts, Manitoba’s commitments under national and international agreements and the precautionary principle will be limited by a number of factors, including the interval between plan updates and the uncertainty of future proposals and impacts.
3. Consistency between large area sustainable development plans.

C. In order to develop and give effect to these large area sustainable development plans, government:

1. In a public participation process, define each large planning area.
2. Appoint, for each area, an ad hoc sustainable development planning advisory committee, made up of a cross-section of knowledgeable persons, primarily from the area concerned, to develop the large area plan. There should be municipal representation, conservation districts representation where applicable, and direct public representation as well as other opportunities for effective public input.
3. Provide adequate support, staff and fiscal resources to the sustainable development planning advisory committees to undertake appropriate studies, involve the public, and prepare the plan.
4. Upon completion and recommendation of the large area sustainable development plan for approval, Manitoba adopt the plan as an extension to its provincial sustainable development policies and strategies for that area, through a hearing process.
5. Periodically review large area plans, not less than once every five years, through a formal public review process.
6. Implement the provisions of the large area sustainable development plans, for those parts of Manitoba organized into municipalities, through mandatory development of, and provincial review and approval of municipal or district sustainable development plans and their amendments. Review of municipal and district sustainable development plans would be to ensure compliance with the broader policies and directions as set out in the large area sustainable development plan. Manitoba could also consider retaining the Advisory Committee to assist in periodic reviews of the plan and provide continuing advice with respect to implementation.
7. Significant resource allocations by Manitoba be subject to the requirements of the large area sustainable development plan.
8. So far as possible, issues associated with significant resource allocations should be accommodated at the time of large area planning. In the event they are not, however, they will need to be by effects assessment, either on their own or as a part of the related development. (This report does not attempt to specifically define significant resource allocations, except to say that the Core Group is not envisioning the multitude of individual small resource licenses. It recognizes that the allocation could be significant due to the size of the allocation, or the scarcity or sensitivity of the resource. The Core Group leaves the task of refining the definition to a subsequent iteration.)

Observation: The large area plans would provide direction and coordination to the activities of planning and conservation districts, regional and community development corporations, etc., where applicable and provide broad guidance and direction as to infrastructure, resource planning and allocation, conservation and protected areas, economic and social services, transportation and the types of development to be encouraged in the planning area.

Observation: Over time, it is envisioned that district planning boards, conservation district boards and economic development corporations may consolidate to form large area authorities that may approximate the large area planning areas and eventually supersede the need for such individual boards or commissions.

4. Development Assessment and Review

Currently, project-specific decision-making processes (e.g. environmental assessment and reviews, significant resource allocation decisions, development plan amendments) are often not coordinated, and do not cover the necessary range of environmental, economic, social, cultural and human health considerations in the review and assessment.

In order to provide a level of flexibility to accommodate the various levels of planning, the assessment process must have the capability of assessing a wide array of parameters, including, land/resource use issues, cumulative impacts and social and economic impacts through a formal and highly public process. It would provide discretion so the assessment process can be tailored to the situation. Guidelines would be put in place to assist in the exercise of such discretion. Decisions and their rationale should be transparent.

Proponents should be encouraged to involve the public at the very first stages of their development planning (pre-licensing) so that issues may be addressed early and the project design may incorporate the views of the public. To the degree that this process is adopted by the proponent and the issues resolved (mediation opportunities will be available), the formal environmental assessment process may be abbreviated to deal with outstanding issues and with mitigation measures. (See Figure 3) It will be imperative that all relevant issues are appropriately addressed, either at the pre-licensing or the licensing stage. Early identification and resolution of the issues is advantageous for both the proponent and the public, as it may provide increased certainty of outcome.

The current Environment Act provides for alterations to both proposals as licensed and proposals in process. The test of significance of environmental effects of the alteration is used to determine the process for review of the alteration. If insignificant, an internal review by the department only is carried out. If significant, a new proposal and the regular process will be required. The director makes the "significance" decision. The weakness in the process lies in the fact that the director’s decision is not transparent. Although alteration information is available in the public registry, there is currently no public notification respecting minor alterations.

Recommendations

It is recommended that:

Decision-making Authority

A) The current arrangement of decision-making authority between Manitoba and the locally elected municipal officials be unchanged.

Effects Assessment

B) Manitoba broaden the concept of assessment from the environmental impact assessment as set out in The Environment Act, to an effects assessment to include the assessment and review of all of the sustainability factors of a development. The effects assessment process would culminate in an approval (through the issuance of a licence, usually with terms and conditions) or rejection of the proposal. An effects assessment would include the assessment and review of any combination of the following elements:

1. purpose of the project;
2. description of the project;
3. assessment methodology and results of public consultation;
4. an analysis of the alternatives to the project and alternative means for the project, in each case including the "do nothing" alternative;
5. need (examined in connection to alternatives);
6. description of the existing environment and potential zones of impact;
7. description of the environmental effects;
8. description of the social effects, including human health, cultural and heritage values;
9. description of the economic effects;
10. description of the mitigation measures;
11. description of cumulative and interdependent effects;
12. residual effects and their significance;
13. follow-up plans;
14. decommissioning; and
15. project sustainability [note: a) analysis of the balance between the environmental/ecological, social, economic, cultural and human health benefits and impacts of the project, b) the indicators and methodology for performing such an analysis will need to be developed over time.]

Standard Effects Assessment
C) In addition to an assessment and review of the information referred to in B), the effects assessment could also include the use of a formal Technical Advisory Committee, guidelines, the possibility of public hearings and participant assistance program.

Variable Effects Assessment
D) The project-specific effects assessment guidelines reflect the extent of planning and pre-licencing activities associated with the development. Where planning and pre-licencing activities have adequately addressed relevant issues, those activities may be found to have already fulfilled one or more of the legal and informational requirements of the effects assessment process, with the result there will be opportunity to credit those activities. The more comprehensive the planning and pre-licencing activities, the more likely the formal effects assessment process will be simplified.

E) The principles governing crediting planning and pre-licencing activities in the effects assessment process should be a) all issues need to be adequately addressed, and b) work done well and which is up to date need not be done again. That is, the design of the specific effects assessment will reflect the degree to which the planning or pre-licencing activities met the requirements for information, public involvement, issue resolution, mitigation design and insignificance of environmental and other impacts.

F) If there is any reasonable doubt that the planning or pre-licencing activities adequately addressed an issue, the effects assessment process would investigate sufficiently to remove that doubt, or, failing that, reconsider the issue. The need to reconsider some planning issues may need to be determined by an impartial, restructured Clean Environment Commission.

G) Obligations to notify the public of a licence application, permit public concerns to be addressed to the director of licencing, as well as the possibilities of issuing guidelines and holding a public hearing will be maintained.

H) Mediation be used (to the extent that it may be successful) to similarly reduce the parameters addressed by some part of the formal effects assessment process, such as the public hearing.

I) The issuance of any licence in stages, such as is now available under section 13 of The Environment Act, be made subject to the requirement that the environmental impacts of the development as a whole be known to be insignificant or capable of being mitigated to insignificance with known technology. The test for insignificance should be an objective test.

J) Proposed developments not be considered for effects assessment and licensing unless the proposal is consistent with the local and/or large area sustainable development plan or an amendment to the relevant plan(s), as the case may be, or an amendment to the relevant plan(s), capable of permitting the proposal, is (are) in process. (In some areas there may only be a large area plan.)

K) In the absence of a plan (such as during the transitional period) a proposed development will be subjected to an effects assessment process as described in B).

Single Development Decision Process
L) Where a single approval is required for a proposed development (e.g. water resource allocation license, effects assessment license, municipal approval, etc.), the relevant review process (with improvements as per these recommendations) should apply. In the event of public concerns, conflict resolution mechanisms, such as mediation, should be available and encouraged.

Coordination of Multiple Development Decisions
M) Where multiple approvals are required, enabling mechanisms will provide the opportunity to coordinate the relevant review processes to ensure effective and efficient review and assessment. This coordination will provide for linkages between the processes for such things as conflict resolution, public participation, shared technical advisory committees, information gathering, guidelines development, terms of reference for consolidated hearings and the coordination of decisions and announcements. The coordination between the processes could be through the use of a "case worker" to guide the proponent and other participants. Care needs to be taken to ensure that the latter mechanisms are fair and do not compromise or appear to compromise the integrity and objectivity of the decision-makers.

Default to Individual Processes
N) In the event that the development review processes are not coordinated, the applicable processes will apply.

Alterations to Licenses, Proposals and Developments
O) The following be implemented to make improvements to the review of alterations with potential environmental, social, economic, cultural and human health effects:

1. Where the public has been engaged in a review that is underway, then the public shall be notified and provided an opportunity for comment;
2. Where the public had been engaged in a proposal review and the license has been issued, then the public shall be notified and provided an opportunity to comment;
3. Where a notice of alteration is received for an unlicensed development, then the public shall be notified and provided an opportunity to comment; and
4. All alteration decisions be filed in the public registry and reported in the Department of Environment’s annual report.

Category Reviews [Class Assessments]
P) That Manitoba enact "Category Review" licensing for assisting the assessment of those parts of frequently assessed proposals for which there is good knowledge of environmental effects and mitigation. A continuing guideline would become the starting point for the creation of the project-specific guideline. Where standard mitigation practices were accepted these too could be expressed in a standard guideline. The development of continuing or standard guidelines would include opportunities for public participation at least equivalent to a project -specific environmental assessment. Obligations to notify the public of a license application, permit public concerns to be addressed to the director of licensing, as well as the possibilities of issuing project- specific guidelines and holding a public hearing will be maintained.

Ministerial Discretion to Designate a Development
Q) That steps be taken to address the current legal difficulties in interpretation and application of section 16 of The Environment Act so that the Minister has clear authority to determine whether any development is subject to effects assessment

End Grandfathering Provisions
R) Developments that pre-existed The Environment Act and remain unlicensed or are subject to a Clean Environment Commission Order, be phased into the licensing requirements described above.

5. Public Participation

There is inconsistent opportunity for public involvement in the planning and decision-making processes. Sometimes key decisions (e.g. significant resource allocation) are made with the public brought in later, in an environmental assessment process, that addresses primarily mitigation measures. Different decision-making processes bring differing levels of public involvement, and different levels and ease of access to information.

These recommendations do not imply that there is no effective consultation in Manitoba today, but, rather, call for consistent and timely effective public consultation in planning, significant resource allocation and development assessment and review processes. Some of the recommendations are current practice in some processes, but are not equally applied across government or across all the relevant decision-making processes.

Recommendations

It is recommended that:

Participation in Planning and Assessment and Review
A) There be opportunity for effective/meaningful public participation and consultation processes at all levels of planning, significant resource allocation and effects assessment and review to include:

1. Opportunity for input into information requirements and the establishment of guidelines for the proponent;
2. Opportunity for the public to meet with the proponent, proponent’s experts and the Technical Advisory Committee (TAC – interdepartmental committee established under The Environment Act to provide expert advice to the director with regard to proposed developments);
3. Opportunity for the public to meet with government and proponent experts;
4. Early and effective notification, consistency in the manner of notice, and easy access to information;
5. The development of protocols to define appropriate procedures that would reflect "effective", "meaningful" and "timely" consultation;
6. Capacity-building mechanisms be developed to enable the meaningful public participation in sustainable development processes (including education and awareness, appropriate timelines for notification and responses, access to information, and possible funding approaches); and
7. Local knowledge, special naturalized, and/or community-based knowledge be recognized and considered in sustainable development processes.

Early Participation
B) Manitoba additionally encourage the proponent to provide for meaningful public input before the formal development review process is initiated or the significant resource allocation decided upon, including outreach to those not historically reached or involved by traditional methods, including Aboriginal peoples.

Information/Notification
C) Government departments develop and provide to the public clear and "user friendly" guides to assist public participation in the planning and development review processes.

D) A review of current public notification procedures be undertaken to facilitate accessibility to information across Manitoba and to take advantage of emerging technologies.

E) In order to increase the ability of the public to participate in and influence decisions in the planning and development review processes, Manitoba:

1. Include specific notification schedules for decision-making agencies that will provide consistent and early public notices respecting planning, significant resource allocation and development review activities;
2. Require proponents to provide reasonable opportunities and times for the public and groups to be heard and to know they have been heard;
3. Specify provision of adequate time for the public to review and respond to plans and proposals;
4. Provide documentation of criteria and rationales used by decision-makers (including appeal bodies) to the public along with the decision;
5. Ensure timely and convenient access by the public to copies of documents used in planning, significant resource allocations and development review processes, as well as to copies of licenses, appeal decisions or other approvals from a regulatory authority; and
6. Make available to the public consistent and dependable follow-up reporting of monitoring, enforcement and subsequent actions.

Public Input in Land Use, Resource Decisions
F) To ensure public input is a part of decision-making during the planning process, Manitoba:

1. Obtain public input in advance of irrevocable land use or significant resource allocation decisions by publicly establishing and consistently relying upon criteria for identifying the circumstances where such public input will be required; and
2. Seek such public input in establishing all public policies, legislation and strategies affecting air, land and water, to assist in considerations of ecological, socio-economic, human health and cultural/heritage values.

Assessment Independent from Design
G) Require proponents, with respect to major developments, to demonstrate that the design of the project has been independent from the assessment of the impacts of the project.

Manitoba Environmental Council
H) The Government review the mandate for the Manitoba Environmental Council as provided for in The Environment Act.

Encourage Consultation
I) Manitoba actively encourage proponents, including government, and require evidence from them, that broad, meaningful consultation has occurred and serious effort to resolve concerns has been completed before developments proceed further through the decision-making process.

Public Hearings
J) Manitoba develop clear and well-understood criteria for the determination of the need for public hearings, and make subsequent hearing decisions based on those criteria. Public explanations with respect to the decisions would be based on the criteria.

K) Hearing bodies be provided the opportunities, staff and fiscal resources to undertake independent fact-finding helpful to imminent or expected decision-making processes.

L) To ensure that hearing panels can function effectively and efficiently:

1. Government issue clear instructions to hearing bodies on the issues to be addressed and/or the products required of the hearing. Guidelines or a process akin to guidelines should be the primary basis for generating instructions to hearing bodies on issues to be addressed or products required of the hearing process. Generally, hearing bodies should focus on issues of significance, including issues which remain controversial with the public, areas of residual technical uncertainty, or matters which may not have been sufficiently addressed.
2. Hearing bodies undertake to have an understanding of technical matters prior to and during hearings.
3. Information, which a proponent is required to provide or otherwise intends to rely on at a hearing, be made available as soon as possible to the public and to the hearing body within a specified time prior to the hearing. Failure by a proponent to provide information as required in advance of the hearing will be cause for the panel to postpone the hearing. Interested parties wishing to make representations should also be required to file materials within a certain time.
4. Manitoba review the composition of the pool of panelists to ensure that:
   1. panelists are available to participate when required;
   2. the pool of panelists displays a broad array of technical and non-technical knowledge, to be capable of addressing all sustainable development components;
   3. panelists are independent; and
   4. panelists are free of any conflict of interest; and
   5. that these criteria be reflected in each panel selection.

Public Registries
M) In order to ensure ease of access to current, and historically relevant information, Manitoba:

1. Expand the public registry system to include planning and resource allocation activities, in addition to the current environmental approvals information.
2. Improve public registries and access to registry information, which should include :
   1. effective cataloguing;
   2. positive outreach functions;
   3. measures to prevent theft;
   4. convenient hours of operation, for improved public access outside of normal working hours;
   5. long-term retention of, and public access to, all registered information;
   6. standardization of registry content to ensure consistent inclusion of project proposals, regulatory guidance to proponents, tac minutes, departmental and public comments, communications between proponents and decision-makers, assessment documents, "deficiency" lists, licenses, notices of alteration, dispositions of proposed alterations, monitoring reports, compliance information, etc.;
   7. clear guidance from the department to the registry manager(s) on use, care, purpose of information being provided, etc.;
   8. ease of access to registry information for those seeking information;
   9. specific requirements for planners (and proponents) to provide sufficient copies of documents for project registries – particular consideration must be given to the needs of remote communities for information, to ensure information is easily accessible and easily understood by parties at interest in these communities; and
   10. user-friendly, plain language summaries of technical documentation provided to registries by proponents.
3. Create project-specific, "local" and "regional" registries, and joint federal-provincial registries where applicable;
4. Encourage proponents/departments to meet with the public to explain registry contents;
5. Clearly define the role expected of the proponent with respect to these registries (such as positive outreach on a project-specific basis); and
6. Establish an electronic registry for computer access, while recognizing the present limited access to electronic media.

Technical Advisory Committees
N) The Technical Advisory Committee (TAC) and the technical advisory process be mandated and specifically recognized in legislation and also used to review a limited number of significant land use proposals. Criteria should be developed to guide this involvement.

O) The TAC should be able to access non-government expertise as required.

P) The public should be provided the opportunity to meet with TAC or individual TAC members, and have access to the TAC meeting notes.

Facilitating Participation
Q) Opportunity be given for all participants in a planning, significant resource allocation or assessment and review process to acquire information and provide input into decision-making using that information. This can be accomplished through such means as:

1. Access to government information and expertise;
2. Public interaction with the proponent in the conceptualization of the project;
3. Participation in the preparation of instructions to the proponents; and
4. Access to participant funding.

R) The existing regulation covering the participant funding program be revised to include:

1. Planning;
2. Significant resource allocation decisions;
3. Mediation; and
4. Be made explicit that sources of funding can be from the proponent and/or Manitoba.

Dispute Resolution
S) To encourage the voluntary resolution of issues, Manitoba provide a mediation process to include the following characteristics:

1. capable of including all parties;
2. a "safe" place to talk;
3. voluntary;
4. "privileged", in the legal sense;
5. the scope of the discussion to be determined by the parties;
6. assessment and review processes must still be complied with, but where mediation is successful, the issue or issues resolved through mediation need not be re-addressed in the assessment.

6. Federal Provincial Interface

Recommendations

It is recommended that:

Adhere to National, International Commitments
A) Processes relating to environmental, resource and land use decision-making accommodate obligations and commitments undertaken by Manitoba in respect to interprovincial, national and international, agreements.

Access to Agreements/Commitments/Information
B) There be easy access to existing interprovincial, national and international agreements that may impact Manitoba’s planning and development assessment and review activities, related obligations and commitments under the agreements, and information about Manitoba’s response to its obligations and commitments. This access could include placing the agreements in the public registries.

C) Manitoba ensure that participants in Manitoba’s assessment and review processes have access to information regarding relevant environmental, resource and land use obligations and commitments under these agreements.

Public Input/Accountability
D) During the negotiation of such agreements, Manitoba provide opportunity for effective public input into the development of Manitoba’s negotiating principles and positions.

E) Manitoba urge the inclusion of accountability mechanisms with respect to the obligations and commitments contained in the agreements to which the Province is a party, including regular performance evaluation and reporting requirements.

7. Aboriginal Interface

Through its deliberations, the COSDI Core Group concluded that there were substantial deficiencies in the consultation, land and resource use planning, resource allocation, environmental licensing and regulatory procedures, including environmental assessment processes, as they relate to Aboriginal peoples in Manitoba.

The COSDI Core Group further recognized that there have been difficulties encountered by Aboriginal peoples and the Government of Manitoba in their prior dealings, such as negotiations regarding environmental matters. The COSDI Core Group considers that the success of the initiatives and recommendations contained in this document will be, to a large extent, dependent upon the existence of open communication between the Government of Manitoba and Aboriginal peoples, especially regarding difficult issues such as legal jurisdiction and Aboriginal rights. It should be noted that the projected growth of Aboriginal population in the urban areas, especially Winnipeg, will add to the challenges that need to be addressed. Innovative solutions will be required to engage this important, but diffuse and unorganized portion of our population.

The Manitoba government has stated its commitment to ensuring that Aboriginal peoples are included in sustainable development processes through Sustainable Development Principle #3, Manitobans should understand and respect differing economic and social views, values, traditions and aspirations, and #4, Manitobans should consider the aspirations, needs and view of the people of the various geographic regions and ethnic groups in Manitoba, including Aboriginal peoples, to facilitate equitable management of Manitoba’s common resources. As well, Guidelines #2 Public Participation, #3 Access to Information, and #4 Integrated Decision-making and Planning are particularly relevant to ensuring the participation of Aboriginal peoples, both as Manitobans and as peoples with unique legal rights.

Treaty and Aboriginal rights protected under the Constitution, results of recent legal decisions, the evolving rights and responsibilities under Aboriginal self-government, the Manitoba Policy on First Nation Government (1996), and the Memorandum of Understanding between the Assembly of Manitoba Chiefs-Manitoba Keewatinowi Ogimakanak and the Minister of Natural Resources regarding the Manitoba Network of Protected Areas (1998), result in a number of assumptions that relate to the relationship between Manitoba and Aboriginal peoples. In formulating its recommendations the COSDI Core Group has relied upon the following:

1. Aboriginal peoples and their unique rights are, or will be, recognized and considered and specifically referenced in land and resource use planning, significant resource allocation, environmental licensing and regulatory mechanisms, including effects assessment tools and documents.
   
2. The evolving self-government roles of Aboriginal peoples are, or will be, acknowledged and included in land and resource use planning, significant resource allocation, environmental licensing and regulatory mechanisms, including effects assessment tools and documents.
   
3. Meaningful consultation is required regarding developments that may impact Aboriginal or treaty rights or interests, including development within traditional Aboriginal lands or developments that may impact upon First Nation reserve lands.
   
4. Planning advice and documents (i.e. Aboriginal traditional land use plans) prepared by or belonging to Aboriginal peoples are or will be included and referenced in the larger planning schemes.
   
5. There are or will be specific measures for providing appropriate notice and response periods for sustainable development processes in situations where Aboriginal or treaty rights or interests are likely to be affected.
   
6. Sustainable development consultation and decision-making processes which do not have the possibility of affecting an Aboriginal or treaty right or interest are or will involve Aboriginal peoples in the same manner as all other citizens of Manitoba.
   
7. Manitoba recognizes and respects the distinctive cultures, histories and traditions of the First Nations people of Manitoba.
   
8. The traditional knowledge of First Nations is integral to land and resource use planning, significant resource allocation, environmental licensing and regulatory mechanisms such as effects assessment.

Recommendations

It is recommended that:

Develop Consultation Strategy
A) Manitoba work in partnership with Aboriginal peoples to develop a comprehensive consultation strategy that will be utilized to guide the development of a protocol (see B). This strategy may later also be employed in other sustainable development processes requiring consultation.

Develop a Protocol
B) Manitoba work in partnership with Aboriginal peoples to develop a cooperative protocol to address the involvement of Aboriginal peoples where their land and resource use planning, significant resource allocation, development assessment and review and regulatory mechanisms, including effects assessment tools and documents are affected. Although the content of this protocol would be determined in partnership, the COSDI Core Group is of the opinion that protocol should as a minimum attempt to address the issues previously stated, as well as the following:

1. That Manitoba work in partnership with Aboriginal peoples when proposing or implementing sustainable development processes which are likely to impact Aboriginal or treaty rights or interests.
2. That sustainable development processes, including planning tools and other documents, recognize and respect Aboriginal treaty rights and interests.
3. That sustainable development processes, including planning tools and other documents, recognize and respect Aboriginal and treaty rights and interests.
4. That sustainable development processes recognize the importance of the culture, knowledge, traditions, cultural and spiritual values of Aboriginal peoples.
5. That capacity-building mechanisms be developed to enable the meaningful participation of Aboriginal peoples in sustainable development processes (including education and awareness, appropriate timelines for notification and responses, access to information, possible funding approaches).
6. That local knowledge (Traditional Environmental Knowledge), special naturalized, and community-based knowledge be recognized and considered in sustainable development processes.
7. That meaningful consultation with Aboriginal peoples occur where resource use planning, significant resource allocation, development review processes and regulatory mechanisms, including effects assessment, is likely to affect Aboriginal or treaty rights or interests.
8. That, where Aboriginal or treaty rights or interests are likely to be affected, fact-finding, technical and decision-making mechanisms for sustainable development require meaningful Aboriginal representation.

C) Manitoba and Aboriginal peoples begin the development of the protocol as soon as possible, governed by specific timelines for development and implementation of the protocol and a public reporting mechanism for progress.

D) Because of the inter-jurisdictional nature of Aboriginal and treaty rights and interests, COSDI recommends that Manitoba work with Canada to clarify and streamline the flow of communication regarding sustainable development issues and processes.

E) Manitoba recommend the meaningful participation of Aboriginal peoples in inter-jurisdictional sustainable development issues and processes that are likely to affect Aboriginal or treaty rights or interests.

F) All provincial departments and Crown corporations be instructed on implementing protocol processes.

8. Accountability

Some of the necessary technical tools such as sustainable development indicators/indices are being pursued but not yet fully developed. Measurement and predictability of sustainability will improve with the evolution of these tools. It is important for Manitoba to create a regulatory environment that will allow and encourage the use and evolution of these tools.

Recommendations

It is recommended that:

Sustainable Development Auditor
A) Manitoba establish a Sustainable Development Auditor to monitor and report publicly on the implementation of sustainable development within the provincial government. It is suggested the Auditor be attached to the Provincial Auditor’s Office and report directly to the Legislative Assembly.

Sustainable Development Criteria and Indicators
B) Manitoba aggressively pursue the development of sustainable development criteria and indicators, as has begun under The Sustainable Development Act. They should have a significant objective monitoring component (baseline and ongoing) wherever possible, and be supplemented by legislated periodic reporting to the public. The Provincial Sustainable Development Auditor should review the effectiveness of such an indicator system and suggest improvements.

Legal Compliance Protection
C) Legislation be adopted to protect all employees from being dismissed, disciplined, penalized, coerced or intimidated for complying with, giving information to the relevant ministry concerning, or seeking to enforce relevant federal or provincial legislation or any regulation, licence, order, etc. made thereunder. Complaints concerning such a dismissal, etc. be made to the Manitoba Labour Relations Board for adjudication. In the event that a contravention of this new employee protection is found, the Board be empowered to make remedial orders such as are presently available after the finding of an unfair labour practice under section 7 of The Manitoba Labour Relations Act.

APPENDIX A

APPENDIX B

COSDI CORE GROUP

Stuart Briese – Rural Municipal Organization
Alice Chambers – Environmental Advocate
Gord Collis – Industry/ Manufacturing
Radha Curpen – Environmental Law
Dwayne Hamilton – Agricultural Producer
Ed Huebert - Industry Association
Joe Keeper – Aboriginal Perspective
Ryan Kustra – Public Utility/ Developer
Mike Maksymyk – Urban Municipal Organization
Mike McKernan – Environmental Consultant
Brian Pannell – Environmental Law/ Advocate
Merrell-Ann Phare – Aboriginal Environmental Organization
Jonathan Scarth – International Conservation Agency
John Sinclair (partial term) – Academic/ Environmental Assessment
Dale Stewart –Public Board/ Commission
Shirley Timm-Rudolph (partial term) – Urban Government
Julie Frederickson – Urban Government (replaced Shirley Timm-Rudolph)
Ed Sawatzky – Co-chair, Manitoba Rural Development
Dick Stephens – Co-chair, Manitoba Environment

APPENDIX C

COSDI ADVISORY COMMITTEE

To obtain a copy of any of the publications listed, please contact:

Conservation Library
Manitoba Conservation
Suite 160 – 123 Main Street
Winnipeg, MB R3C 1A5
Phone: (204) 945-7125
Email: spenziwol@gov.mb.ca