Canada: Omnibus Bill C-38 - A Major Reform Of Federal Environmental Laws

Bill C-38 (the Jobs, Growth and Long-term Prosperity Act) (Bill C-38) received royal assent on June 29, 2012. This statute amended several federal environmental statutes and substantially reformed the federal environmental assessment process (Assessment Process). It repealed the former Canadian Environmental Assessment Act (S.C. 1992, c. 37) (Former Act) and replaced it with the Canadian Environmental Assessment Act (2012) (CEAA 2012) which came into force by order of the Governor in Council on July 6, 2012.

Simplified List of Designated Projects

Under the CEAA 2012, projects that include a designated "physical activity" are subject to the new environmental Assessment Process. The list of such designated activities is set out in the new Regulations Designating Physical Activities (SOR/2012-147) which was published in the Canada Gazette on July 18, 2012 (RDPA). It includes major industrial activities that were subject to a comprehensive study under the Former Act.

By way of example, the construction, operation, decommissioning and abandonment of the following facilities are designated under the RDPA and thus subject to the new Assessment Process:

  • a hydroelectric generating station with a production capacity of 200 MW or more;
  • an oil refinery with an input capacity of more than 10,000 m3 per day;
  • a mine with a production capacity greater than the threshold designated by regulation;
  • a pulp and paper mill;
  • a facility for the manufacture of chemical products with a production capacity of 250,000 tons per year or more;
  • a facility used exclusively for the treatment, incineration, disposal or recycling of hazardous waste;
  • a marine terminal designed to handle vessels larger than 25 000 DWT.

Moreover, the Federal Minister of the Environment (Minister) has the power to require that any physical activity be subject to the Assessment Process even though it is not designated in the RDPA if, in his opinion, this activity may cause adverse environmental effects or raise public concerns related to those effects. This power, however, cannot be exercised if the activity has already begun and, as a result, the environment has been altered. Nor can it be used if a federal authority has already permitted the physical activity to be carried out, in whole or in part.

Streamlined Assessment Process

Projects subject to the Assessment Process will now be under the responsibility of one of the following authorities (Responsible Authority) as established in the RDPA:

  • the Canadian Environmental Assessment Agency (Agency);
  • the Canadian Nuclear Safety Commission (CNSC);
  • the National Energy Board (NEB), or
  • a federal authority that performs regulatory functions and that may hold public hearings.

The new Assessment Process includes the following steps, depending on the nature of the project concerned.

1. Screening

Designated projects that are under the responsibility of the Agency will first be required to undergo a screening process.

To this end, the proponent must provide the Agency with a detailed description of the designated project including the information required under the Prescribed Information for the Description of a Designated Project Regulations(SOR/2012-148) published on July 18, 2012.

Once it has received the detailed description of the project, the Agency posts a notice on its website inviting the public to comment on the project. Within 45 days after the posting of the notice, the Agency must complete the screening and decide whether or not an environmental assessment is required in respect of the project.

This preliminary process does not, however, apply to projects that are under the responsibility of the CNSC, the NEB or another federal authority, which projects are automatically subject to the new environmental Assessment Process.

2. Assessment by the Responsible Authority

When an environmental assessment is required, the Responsible Authority must notably analyze the project's environmental effects, including those of malfunctions or accidents that may occur, as well as any cumulative impacts related to other activities that have been or will be carried out. The Responsible Authority must also take into account comments from the public, though it is not required to hold formal public hearings.

Unlike the Former Act, the environmental effects that must be taken into account in the environmental assessment are limited to the components of the environment that are within the legislative authority of the federal government, including fish, fish habitat, aquatic species, migratory birds, federal land, Aboriginal communities and extra-provincial environmental effects. For some projects, the environmental assessment will also take into account other factors, including the environmental impacts that are directly linked or necessarily incidental to a federal authority's exercise of a power or performance of a duty in relation to the project.

If necessary to complete its assessment, the Responsible Authority may require the proponent to undertake additional studies or to collect other necessary information.

3. Assessment by a Review Panel

Alternatively, the Minister may decide to refer the environmental assessment to an environmental assessment review panel (Review Panel) based on various considerations, including the significance of the potential adverse environmental effects of the project or of public concerns in this regard.

The Review Panel may be constituted jointly with provincial or foreign authorities. The Review Panel must hold public hearings on the project and also has the power to subpoena witnesses and to compel them to produce documents.

4. Possibility of Delegation, Substitution or Exclusion

The CEAA 2012 authorizes the Responsible Authority to delegate the carrying out of any part of the environmental assessment to various bodies, including a provincial agency responsible for carrying out such studies (for example, Québec's Bureau d'audiences publiques sur l'environnement (BAPE)).

Moreover, on application by a provincial government and subject to certain conditions, the Minister must approve the substitution of the provincial equivalent that meets selected criteria established in the CEAA 2012for thefederal environmental Assessment Process. This substitution may apply in respect of a designated project or a class of designated projects, but is not allowed in respect of projects for which the Responsible Authority is the CNSC or the NEB, or those for which have been referred to the Review Panel.

Despite the delegation or substitution of the environmental assessment in favor of a provincial system, the federal authority remains in charge of making a final determination regarding the acceptability of the project.

Under certain conditions, the federal government may also exempt a designated project from the application of the CEAA 2012 if it is satisfied that the provincial system is equivalent to the federal Assessment Process.

5. Decision Making

Upon completion of the environmental assessment, the Responsible Authority or the Minister, in the case of an assessment made by the Agency (Decision Maker), must determine the severity of environmental effects that the project is likely to cause, taking into account the implementation of any mitigation measures it considers appropriate.

If the Decision Maker is of the view that the project is likely to cause "significant adverse environmental effects," the project must then be submitted to the Governor in Council, who must determine whether these effects "are justified in the circumstances." The CEAA 2012 gives broad discretion to the federal government in this regard.

If the effects are not considered significant adverse effects or if these effects are deemed justified, the Decision Maker must issue to the proponent a decision statement  that sets out any mitigation measures or a follow-up program that must be implemented by the proponent (Decision Statement).

If the Assessment Process is conducted by a Responsible Authority, the Decision Statement must be issued within 365 days from the beginning of the Assessment Process, with a few exceptions. If the Assessment Process is referred to a Review Panel, the time limit is two years.

The Decision Statement is equivalent to a permit issued by the Decision Maker. The proponent must comply with the conditions set out therein, failing which it exposes itself to administrative orders, injunctions and fines of up to $400,000. Each day on which the offence continues constitutes a separate offence. Prosecution for such an offence may be instituted at any time within two years after the day on which the Minister becomes aware of the alleged offence.

It is important to note that the project may be subject to additional conditions under other applicable environmental laws. In this regard, the CEAA 2012 provides that a federal authority cannot exercise any power or perform any duty or function pursuant to the federal statutes that would permit a project to be carried out until the Decision Statement has been issued to the proponent. Hence, the federal permits which are required to carry out a designated activity cannot be obtained before the conclusion of the federal environmental Assessment Process.

6. Projects on Federal Lands or Outside Canada

The CEAA 2012 also contains provisions in respect of the projects that do not include a designated activity but would be carried out on federal lands or outside Canada.

Indeed, the federal authorities must not carry out projects or provide financial assistance for the purpose of enabling such a project to be carried out until they have determined whether the project is likely to cause significant adverse environmental effects. When applicable, the project must not be carried out by the federal authority and financial assistance must not be provided unless the Governor in Council decides that the environmental effects are justified in the circumstances.

Transitional Provisions

The new Assessment Process established by the CEAA 2012 does not apply to a designated project if:

  • construction of the project was commenced before the CEAA 2012 came into force; 
  • the project was permitted to be carried out under the Former Act; or
  • the Responsible Authority had decided under the Former Act that an environmental assessment was likely not required.

In addition, screenings and comprehensive studies already underway when the CEAA 2012 came into force will be completed under the Former Act. Projects that must be reviewed by a Review Panel shall be continued under the CEAA 2012.

Amendments to Other Federal Environmental Statutes

Bill C-38 amended several other federal environmental statutes, including the Fisheries Act, R.S.C. 1985, c. F-14. One of the major changes to this statute relates to section 35, which prohibits carrying on any work or undertaking that results in the harmful alteration, disruption or destruction of fish habitat, unless authorized to do so.

The scope of this prohibition will be limited by Bill C-38 in order to only apply to activities that cause "serious harm to fish that are part of a commercial, recreational or Aboriginal fishery, or that support such a fishery." This modification will come into force on the date to be fixed by order of the Governor in Council.

Other environmental statutes amended by Bill C-38 include the following:

  • the Kyoto Protocol Implementation Act, which is repealed;
  • the National Round Table on the Environment and the Economy Act;
  • the Antarctic Environmental Protection Act;
  • the Canada National Marine Conservation Areas Act;
  • the Canada National Parks Act;
  • the Canada Oil and Gas Operations Act;
  • the Canadian Environmental Protection Act, 1999;
  • the Canadian Polar Commission Act;
  • the First Nations Commercial and Industrial Development Act;
  • the First Nations Oil and Gas and Moneys Management Act;
  • the National Energy Board Act;
  • the Northern Pipeline Act; and
  • the Species at Risk Act.

McCarthy Tétrault's Comments

The amendment to section 35 of the Fisheries Act appears appropriate because it better circumscribes the scope of this offence which, until now, was excessively broad and imprecise.

Moreover, the CEAA 2012 has introduced several important improvements to the Canadian environmental Assessment Process, including provisions for:

  • clarifying which projects shall be subject to the federal process;
  • prescribing time periods within which the environmental assessment must be completed; and
  • establishing procedures for reducing duplication of federal and provincial environmental assessments concerning the same project.

Furthermore, the federal Assessment Process is now limited to major industrial projects. This means that proponents will no longer be subject to the federal process simply because a permit must be issued under a designated regulatory provision, as was the case under the Former Act. What is more, the federal Assessment Process is now focused on the environmental effects that are within federal legislative jurisdiction,thus leaving to the provinces the duty to assess the other environmental effects.

Despite these modifications, the new federal process will continue to be a major source of uncertainty in the development of industrial projects in Canada. Indeed, the effective scope of this reform will depend on how the Minister will use his power to require that any physical activity that raises substantial public environmental concerns be subject to the federal Assessment Process. Moreover, the federal government retains extensive discretionary power enabling it to decide whether or not to authorize major industrial projects and to set the environmental conditions to which these projects will be subject.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions