Canada: New Federal Environmental Assessment Regime Now In Force

On June 29, 2012, the Canadian Senate passed Bill C-38, the Jobs, Growth and Long-term Prosperity Act, and it was signed by the Governor General on the same day. Some of the changes to environmental legislation such as the Fisheries Act and the Species at Risk Act (SARA) came into force on the day Bill C-38 was signed. Other changes required orders from the federal cabinet and the creation of new regulations, and thus their implementation was delayed. However, the wait was short as the cabinet orders bringing a number of the amendments into force, in particular those aimed at streamlining natural resource development approvals, were issued effective July 6, 2012. As a result, the new environmental assessment regime and the associated amendments to the National Energy Board Act (NEB Act) are now in effect.

Bill C-38 was the subject of our May 2012 Blakes Bulletin and details of the changes were described therein. In this article, we briefly describe the key provisions which are now in force and the implications for current proposed projects.

Canadian Environmental Assessment Act, 2012 (CEAA 2012)

In order for CEAA 2012 to become the law, an order was required from the federal cabinet. As noted above, that order was made effective July 6 and thus CEAA 2012 is now in force and the 1992 Canadian Environmental Assessment Act (CEAA 1992) is repealed.

The Canadian Environmental Assessment Agency has posted three "unofficial" versions of regulations which will be registered in the Canada Gazette on Wednesday, July 18, 2012, including the Regulations Designating Physical Activities (the Regulations). The Regulations are the key to implementation of CEAA 2012, as they create the mechanism which triggers the application of the federal environmental assessment process to a project. Like CEAA 2012, the Regulations were effective July 6. As a result, new proposals for projects which do not meet the thresholds in the Regulations will not require federal environmental assessment.

The list of projects in the Regulations is identical to the list in the Comprehensive Study Regulations under CEAA 1992, with the exception of some projects in national parks which have been removed. In other words, only the categories of projects which would formerly have been required to be assessed as comprehensive studies will be assessed under CEAA 2012. Conversely, new project proposals which would have been assessed as screenings under CEAA 1992 will not be subject to federal assessment. We note the Minister is granted the power to designate projects for assessment which do not otherwise fall under the Regulations, but there is no indication of how, or even if, the Minister intends to exercise this power.

Projects currently being assessed under CEAA 1992

The following describes how the federal environmental assessments which had already commenced under CEAA 1992 were impacted by CEAA 2012:

  • Panel reviews were transferred to the process and timelines under CEAA 2012.
  • Comprehensive studies were continued under the process in CEAA 1992, with the addition of new timeline requirements.
  • Screenings were continued under the process in CEAA 1992 only if they were included in a special order from the Minister of the Environment on July 6, 2012. A list of the projects which were subject to the Minister's order can be found here. All other federal screening assessments were permanently suspended as of July 6, regardless of where they were in the process.

Entities unsure of the status of their current federal environmental assessment should check their project listing on the CEAA Registry as projects which were not continued now have a notice under "final decision".

The CEAA 2012 has resulted in a dramatic reduction in the number of projects being subject to formal environmental assessment at the federal level, which was a key commitment made by the federal government in implementing CEAA 2012. The magnitude of this reduction can be seen in the most recent statistics available from the Agency. For example, as of April 2010, there were 2,906 screenings, 26 comprehensive studies, and nine panel reviews. As of July 6, 2012, including the screenings which were transitioned under the Minister's order, there is a total of 70 projects currently subject to federal environmental assessment.

National Energy Board Act

The amendments to the NEB Act which align with the new CEAA 2012, including the transfer of the final decision-making on certificates of public convenience and necessity from the NEB to the federal cabinet and the time limits for reviews, were also brought into force by a cabinet order effective July 6. By separate cabinet order effective the same date, the changes to the NEB Act focusing the NEB's consideration of export licence applications on whether the export volumes are surplus to Canadian requirements were also brought into force.

The provisions streamlining the authorizations for pipeline crossings of utilities and navigable waters are not yet effective, neither is the power of the NEB to issue administrative monetary penalties. These require separate cabinet orders which have not yet been issued.

Species At Risk Act

The key change to the permitting provisions of SARA came into force automatically when Bill C-38 was signed on June 29 and thus SARA no longer restricts the length of time a permit or agreement can remain valid. However, contrary to the view of some commentators, permits and agreements must include an expiry date – there is just no longer a statutorily imposed time-frame. The amendment to the environmental assessment requirements for species at risk were brought into force with CEAA 2012 on July 6, 2012.

Fisheries Act

As set out in our May 2012 Blakes Bulletin, the changes to the Fisheries Act will be brought in through a staged approach. Some of the amendments are already in force, while others are awaiting changes to government policies key to their interpretation.

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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