Canada: Canada’s New Environmental Assessment Regime: What Miners Need to Know

Last Updated: June 4 2012

This article was written by David Hunter , Nalin Sahni and George McKibbon (McKibbon Wakefield Inc.).

As part of the federal budget, the government has proposed a complete overhaul of federal environmental assessment in Canada. The repeal and re-enactment of the Canadian Environmental Assessment Act ("CEAA") and amendments to other federal environmental legislation amounts to the most significant change in federal environmental assessment ("EA") since the legislation was first created decades ago.

These amendments are clearly aimed increasing investment in extractive industries by encouraging certainty, reducing regulatory duplication and shortening delays. The implications of these changes are vast and their full impact on the mining industry, particularly in Ontario, will not be known for years to come.

Over the next few weeks, the FMC Mining Group will analyze and comment on the proposed amendments and their impact on environmental assessments related to mining in Ontario. These commentaries will of course take into consideration the recent changes to Ontario's Mining Act, Far North Act and Aboriginal consultation requirements.

Though complex, the amendments will have three major impacts:

  1. Federal EAs will be more limited in scope and will apply to fewer projects.
  2. More discretion for the Minister of the Environment and Cabinet in the EA process.
  3. Huge transfer of EA responsibilities to the provinces.

In this first article, we provide a general overview of the proposed amendments relevant to miners. Future articles, will discuss particular subjects in detail including public participation, Aboriginal consultation, broad changes to the Fisheries Act, and harmonization with provincial environmental assessment processes.

Projects Requiring an Environmental Assessment

The former list of federal actions that trigger a formal environmental assessment (usually a permit) has been eliminated. EAs are only required if the project is designated by regulation. This change should make it much clearer which projects require an environmental assessment. However, this may also be a basis of future risk since any subsequent government could amend the list of projects requiring an EA without seeking Parliamentary approval.

Activities that are "incidental" to designated projects (possibly road access, transmission lines, air strips, etc.) must also be covered by the EA. Since what is "incidental" to a project is not defined by CEAA, this may become the subject of much debate in the future.

Who Conducts the Environmental Assessment?

If mining projects are included in the list of projects designated as requiring a federal EA, conducting the EA will be the responsibility of the Canadian Environmental Assessment Agency or a review panel established by the Minister of the Environment (the "Minister"). The exception here would be uranium mining projects. The Canadian Nuclear Safety Commission will continue to have lead responsibility for environmental assessment of uranium mines.

Types of Environmental Assessments and Timelines

The CEAA amendments will eliminate the concept of comprehensive study reports. There will now be only two levels of federal environmental assessment – "standard EA's" (similar to current screening level studies) and EA's performed by review panels. Standard EAs must be completed within 365 days, and review panels must complete their assessment within 24 months of receiving a complete environmental impact report from the proponent. Note that these times lines are not fixed but can be extended up to 3 months at the discretion of the Minister or indefinitely by Cabinet.

Public participation in a review panel hearing will be limited to those "directly affected" or who have relevant expertise. Non-governmental organizations seeking to intervene in EAs may find it difficult to obtain standing to participate in review panel proceedings. This could substantially shorten EA timelines.

Harmonization with Provincial Environmental Assessments

The new CEAA is trying to move towards a "one project, one review" system. The federal EA process for standard EAs can be replaced by a provincial EA if the Minister is of the opinion that the provincial environmental assessment act would be an "appropriate substitute" and the province requests the substitution. Panel reviews cannot be substituted by a provincial process but the new CEAA continues to allow for a joint federal-provincial panel review.

The provincial EA process does not have to match the rigor of the federal assessment though, at a minimum, the same factors must be considered. The Minister can also approve the substitution of a provincial EA after a provincial EA has been completed. It would appear that all current federal-provincial harmonization agreements will have to be rewritten from scratch. Given that these agreements have typically taken years to negotiate, achieving a true a "one project, one review" system may take a considerable period of time. Eventually, however, these changes could remove unnecessary duplication in EAs.

Scope of Environmental Assessments

The purpose of CEAA has been significantly altered. Formerly, the purpose was to ensure that projects did not have significant adverse environmental effects that could not be justified. This purpose has been reduced such that projects should not have significant adverse environmental effects only upon the components of the environment within federal jurisdiction. This could generate debate and uncertainty in the process as to the types of effects covered by federal EAs.

Further, only enumerated environmental effects need to be taken into account. Cabinet alone can add or remove a component of the natural environmental that must be assessed. Coupled with the changes to the Fisheries Act to focus on the protection of commercial, recreational and Aboriginal fisheries, this means that many mining projects may no longer require federal EAs and may be primarily governed by provincial EA processes. The definition of what constitutes a commercial, recreation or Aboriginal fishery should also be expected to be the subject of future debate.

While the scope and purpose of federal assessments has generally been narrowed, the assessment of environmental effects on Aboriginal peoples has been given increased focus. These amendments may be especially significant when combined with the proposed amendments to Ontario's Mining Act regulations and the new requirements under the Far North Act. FMC will prepare a commentary devoted entirely to this subject.

About Fraser Milner Casgrain LLP (FMC)

FMC is one of Canada's leading business and litigation law firms with more than 500 lawyers in six full-service offices located in the country's key business centres. We focus on providing outstanding service and value to our clients, and we strive to excel as a workplace of choice for our people. Regardless of where you choose to do business in Canada, our strong team of professionals possess knowledge and expertise on regional, national and cross-border matters. FMC's well-earned reputation for consistently delivering the highest quality legal services and counsel to our clients is complemented by an ongoing commitment to diversity and inclusion to broaden our insight and perspective on our clients' needs. Visit: www.fmc-law.com

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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