The politically charged nature of environmental assessments in Canada is no secret. Built on a foundation of dual federal and provincial jurisdiction, Canada's regime of environmental regulation is composed of a plethora of overlapping and often conflicting environmental laws. The direction of our environmental policy swings like a pendulum, often dictated by election-day appetites for climate change or economic advancement. The Canadian resource sector is the principal casualty of these tendencies, as each shift backpedals any incremental progression since the last.
It is against this backdrop that the Trudeau Government introduced the Impact Assessment Act (IAA) to Parliament. Included in Bill C-69, which is currently undergoing Senate approval, the IAA is set to replace the current Canadian Environmental Assessment Act (CEAA 2012) and provide a new framework for federal environmental assessment of certain projects.
Advocacy from the Mining Sector
Given that mining projects constitute 60% of all federal environmental assessments, the Canadian mining industry has an interest in the fate of Bill C-69 and has taken an active role in its progress through the legislature. The first reading of Bill C-69 occurred on February 8, 2018, and the Parliamentary Committee on Environment and Sustainable Development (Committee) reported Bill C-69 with amendments on May 29, 2018. The third reading occurred on June 6, 2018 and Senate approval is currently underway.
Following the first reading, the Committee requested stakeholder submissions on the draft IAA. Additional stakeholder comment was sought by the Canadian Environmental Assessment Agency (Agency) on proposed "Project List" regulations, which designate whether a project will be subject to a federal environmental assessment.
The Mining Association of Canada (MAC) responded with submissions on both the draft IAA and on the proposed Project List regulations. In contrast to the submissions of many other stakeholders, MAC recognized the ability of the IAA, if implemented properly, to improve the current federal environmental assessment framework.
Submissions on the Draft IAA
MAC made two specific amendment requests in their submissions at the committee stage:
- Transition. MAC proposed to amend Bill C-69 to permit environmental assessments currently proceeding under CEAA 2012 to continue, rather than transfer the assessments to the IAA. MAC argued that transitioning projects proceeding under CEAA 2012 to the IAA would create uncertainty for project proponents, investors and communities. MAC underscored the importance of this proposed amendment by highlighting the decline of appeal associated with Canada's investment market in recent years.
- Agency assessment of all mines and mills. As uranium mines and mills are subject to regulation by the Canadian Nuclear Safety Community (CNSC), MAC proposed amending the IAA to permit continued co-operation with CNSC and the Agency regarding the regulation of uranium mines and mills.
MAC also offered comments on other key provisions of the IAA. In particular, it praised the IAA's inclusion of co-operative federalism, including the expanded opportunities for substitution and delegation. MAC's praise contrasted with the views of many other stakeholders who criticized this approach. Most criticism stemmed from perceived encroachment on the jurisdiction of natural resource activities, a matter solely within provincial jurisdiction pursuant to s. 92A(1) of the Constitution Act, 1982. Support for this position is found in leading jurisprudence on the split between provincial and federal jurisdiction to conduct environmental assessments. In Oldman River Society, the Supreme Court of Canada made clear that federal environmental assessments are "auxiliary" and should only affect matters that are "truly in relation to an institution or activity that is otherwise within [federal] legislative jurisdiction."1
MAC's submissions also echoed concerns raised by other stakeholders about the predictability of environmental assessment processes and the potential for the IAA, if not properly implemented, to exacerbate these issues. MAC, however, proposed a pragmatic solution. MAC advocated for governments to use s. 114(1)(c) of the IAA, which provides the Minister of Environment and Climate Change authority to enter into agreements or arrangements with, inter alia, provincial governments and Indigenous government bodies. MAC suggested that the use of these agreements would, in effect, strengthen the transparency of the delegation and substitution processes, while also providing prospective project proponents with clarity on what assessment process would apply in a proposed project location.
Submissions on the Proposed Project List Regulations
MAC's submissions to the Agency regarding the project list regulations called for more clarity around jurisdictional boundaries, and a "consistent application of federal assessment based on a clear rationale."2 While less rosy than its submissions to the Committee about the draft IAA, MAC's submissions on the project list dovetailed with the larger picture of MAC's advocacy efforts. Substitution, co-operative assessments, joint review panels, delegation and other endeavors of co-operative federalism are impossible where roles remain undefined, efforts are duplicated and inconsistent practices persist.
Specifically, MAC argued the approach to an environmental assessment of a project in "sole federal jurisdiction" (Federal Project), such as projects on federal lands, should be materially different than the approach taken regarding a project that is in "sole provincial jurisdiction" (Provincial Project) or a project that is federally regulated but still subject to provincial regulation (Shared Project).
MAC proposed that the environmental assessment of a Shared Project or Provincial Project should only be assessed for potential effects in areas of federal jurisdiction related to the environment (such as impacts on fish, migratory birds, etc.). In contrast, Federal Projects should be assessed for all environmental impacts (such as air pollution, waste disposal, etc.) under the IAA against a broader set of environmental effects and at a lower threshold, without constraint from the provincial regulatory frameworks. This approach aligns with Oldman River Society.
In relation to the mining industry, MAC opined that if the presence of provincial regulatory requirements is considered sufficient grounds to forego federal assessment, then all mining sector projects should be removed from the project list. Alternatively, MAC advocated that if the project list is to be based on environmental effects criteria applied consistently across all sectors, then underground mines should be excluded from the project list and a material production threshold on inclusion of open pit mines and metal mills should be imposed.
Conclusion
MAC's advocacy efforts with respect to the IAA were fruitful. Since MAC's submissions at the committee stage, the IAA has been amended to reflect its proposed transition language and to permit the project list to determine whether co-operation between the CNSC and the Agency will occur in respect of uranium mines and minerals.
However, whether the IAA will be implemented in a way that addresses MAC's overarching concerns is yet to be seen. It is only possible to understand the impact on process predictability and other practical implications once projects proceed under the new assessment framework. It is also plausible that the IAA will impact the various Canadian resource sectors to a different degree, bringing prosperity to some while hindering others.
If nothing else, the IAA will shift the past narrative of Canadian environmental policy. If jurisdictional boundaries are clarified, the IAA's inclusion of co-operation and transparency into the existing structure of federalism and democracy may have the effect of adding further predictability to the environmental assessment process. In turn, the current chill on resource sector investment may be reduced. As highlighted by MAC, however, any potential success is entirely contingent on proper implementation and sufficient government funding.
Footnotes
1. Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3.
2. MAC's submissions on the project list, p. 1.
To view the original article click here
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.
