As part of the review, the Government will appoint two expert
panels to examine the environmental assessment process, the role of
the National Energy Board (NEB), the Fisheries Act, and
the Navigation Protection Act. There will also be a 30-day
window for the public to comment on the mandates of the two expert
panels. The Government has indicated that consultations will be at
the core of this process and that the expert panels will be given a
January 31, 2017 deadline to render their recommendations. Until
then, the interim rules for resource projects will guide decision
making on existing projects such as the Energy East pipeline.
The Government's announcement and the impending overhaul of
Canada's regulatory laws stem from the 2015 Liberal Party
campaign commitment to restore public trust and credibility in the
approval process for energy projects. The Government has committed
to reviewing the previous Government's changes to the
Canadian Environmental Assessment Act, the Fisheries
Act, and the Navigable Protection Act and, will
likely seek to restore and enhance regulatory measures in those
However, the Government has not provided details on what these
changes may look like or when they will be implemented. While it
will take until 2017 for the expert panel to release its
recommendations, there will be significant time needed for the
Government to prepare and implement legislative changes. Given the
priority of this campaign commitment, the Government will likely
introduce legislation prior to the next federal election.
The chief implication of this announcement is the increased
delays and uncertainty that the review process will create.
Additional delays and increased regulatory hurdles – the
scope of which are largely unknown – send a signal to the
energy sector and investors that uncertainty, delays, and more
process can be expected for large resource projects.
It is further unclear whether the interim rules, review process,
and eventual overhaul will have the desired effect of restoring
public confidence in the approval process for pipeline projects
like Energy East. Will more regulation in the environmental
assessment process and the NEB lead to more confidence in the
Another important implication for current and future projects is
what role the NEB will be given in what has become a politicized
process. As of now, Cabinet currently holds the authority to
approve or deny projects, regardless of the NEB's
recommendation. Recently the NEB recommended approval of the Kinder Morgan
Trans-Mountain pipeline (Trans-Mountain), subject to 157
conditions. Cabinet is expected to make a decision on this project
on December 19, 2016. The question then is whether Cabinet will
accept the NEB's recommendation or reject the project on
political grounds? With the recent legal challenge by the City of Vancouver
and First Nations groups to the Trans-Mountain approval,
Cabinet's decision in the face of legal battles and public
opposition may be an indication of the Government's approach to
large interprovincial resource projects. Will it be politics or due
The finer details of this review should become clearer once the
expert panels release their recommendations. In the interim,
project proponents and investors are advised to participate in the
review process and follow the panels' activities closely.
It is relatively common knowledge that the government has a "duty to consult" aboriginal groups when undertaking actions or making decisions that could adversely affect aboriginal rights, aboriginal title and treaty rights.
On April 5, 2017, Environment and Climate Change Canada released the report of an external Expert Panel that was established in August 2016 to review the scope and process of federal environmental assessments under the Canadian Environmental Assessment Act, 2012.
40 to 60 years may be too old when determining whether to extend a limitation period for a negligence-based environmental contamination claim, the court recently ruled in Brookfield Residential (Alberta) LP (Carma Developers LP) v Imperial Oil Limited, 2017 ABQB 218 [Brookfield].
Our April 7 post on the report of the Expert Panel reviewing federal environmental assessment processes noted that the report contains recommendations for greater inclusion of Indigenous peoples in federal environmental assessment processes.
Over the past week, the Project Law Blog has been discussing the recommendations set out by the Expert Panel in its report entitled Building Common Ground – A New Vision for Impact Assessment in Canada, The Final Report of the Expert Panel for the Review of Environmental Assessment Processes.
On April 5, 2017 the Federal Minister of Environment and Climate Change received her report from an expert panel of four, comprised of three lawyers with significant environmental and aboriginal law experience as well as a retired senior executive of a resource company.
On April 5, 2017, an Expert Panel established by the Minister of Environment and Climate Change (the "Panel") released its report, Building Common Ground – A New Vision for Impact Assessment in Canada, The Final Report of the Expert Panel for the Review of Environmental Assessment Processes (the "Report").
Last week we summarized the recommendations set out by the Expert Panel established by the Minister of Environment and Climate Change in its report entitled Building Common Ground – A New Vision for Impact Assessment in Canada, The Final Report of the Expert Panel for the Review of Environmental Assessment Processes.
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