Some Highlights (or Lowlights) of Recent Changes to the Canadian Environmental Assessment Act

We had the opportunity to review the changes to the Canadian Environmental Assessment Act which were made through the 2012 Federal Budget Omnibus Bill for an Aboriginal community client recently, and thought it would be worth sharing this short note with the highlights (or lowlights, depending on your perspective) of the changes. This summary is not exhaustive and should not be construed as professional advice on which to base investments or project planning.

  • Previously there were four types of Environmental Assessments (EAs) under the federal act- Screening-level EAs, Comprehensive Study EAs, Joint Panel Review EAs, and those under the jurisdiction of the National Energy Board (NEB) or the Canadian Nuclear Safety Commission (CNSC). Screening-level reviews have now been eliminated and there are only two main types- Standard Environmental Assessments and Panel Reviews- plus NEB/CNSC Hearings.
  • Federal EAs are no longer "triggered" automatically. Previously, projects were automatically subject to the Act when they met certain conditions including federal Funding, or having project elements which required Federal regulatory approvals such as those under the Fisheries Act, Explosives Act, or Navigable Waters Act. The new CEAA does not have automatic triggers. Projects are assessed by the Agency and added to a Designated Project List which is approved by the Minister. The criteria by which projects will be assessed and designated has yet to be identified, and is also a ministerial decisions.
  • The number of federal agencies conducting and having significant formal influence over EAs is decreased significantly so that it is now just the Canadian Environmental Assessment Agency (CEAA), CNSC, and the NEB. In practice, there will still be Government Review Teams involving Transport Canada, DFO, AANDC, NRCan and others who have specific regulatory authority (i.e. who enforce laws such as the Fisheries Act, Navigable Waters Act, etc.)
  • The scope of environmental effects that federal EAs has to consider is narrowed somewhat to those matters the Federal Government has clear legal jurisdiction over:
    • Fish and fish habitat (including toxins and other harmful substances (“deleterious substances”) released to surface water)
    • Migratory Birds
    • Species-at-Risk
    • Inter-provincial effects
    • International effects
    • Federal Lands

Note- it is worth pointing out here that the standard of harm under the Fisheries Act was also amended as part of the changes to that Act brought about through the Omnibus Bill. It used to be "harmful alternation, destruction, or disruption to fish habitat" even if the changes were short term in nature (temporary dewatering of sections of a stream for example), but has been amended as follows- "the death of fish or any permanent alteration to, or destruction of, fish habitat"

  • The environmental effects of malfunctions and accidents, and of cumulative effects will not be considered in Standard EAs, only Panel Reviews and NEB/CNSC Hearings for "designated projects"
  • Notwithstanding this reduced scope, when it comes to Aboriginal peoples, the scope is much wider and includes socioeconomic effects (thank you Supreme Court!). Here is the section from the new Act:

"(c) with respect to aboriginal peoples, an effect occurring in Canada of any change that may be caused to the environment on:
(i) health and socio-economic conditions,
(ii) physical and cultural heritage,
(iii) the current use of lands and resources for traditional purposes, or
(iv) any structure, site or thing that is of historical, archaeological, paleontological or architectural significance."

  • There are now enforced and shortened mandatory timelines that CEAA has to meet in conducting an EA. In total, it's 2 years for panel reviews, and 12 months for standard EAs. These timelines can be changed (reduced or increased) by review panels or by Ministerial order with public notice and comment period.
  • Some aspects of the Act have been strengthened, most importantly the legal "teeth" an EA has. In short, proponents have to legally comply with EA decisions and conditions and face fines of up to $400,000 for non-compliance. It remains to be seen how this may affect the permitting process- the process to issue the many regulatory permits from various ministries (essentially- the operational rules) after the EA approval has been granted.

For any comments or additions to this blog post, please contact the author at scott.mackay@sharedvaluesolutions.com, on Twitter @MackayScottD , or post a comment on the blog!

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