July 18, 2013 - The Canadian Environmental Assessment Agency
("Agency") has released a new Operational Policy
Statement ("OPS") that sets out the general requirements
and approach to considering cumulative environmental effects under
the Canadian Environmental Assessment Act, 2012
("CEAA 2012"). The new OPS will assist project
proponents with the preparation of their Environmental Impact
Statements, as well as the Agency, interested parties, and members
of the public with their review of proposed projects.
For environmental assessments ("EAs") conducted by the
Agency, the National Energy Board or the Canadian Nuclear Safety
Commission under CEAA 2012, the new document entitled
Assessing Cumulative Environmental Effects under CEAA 2012
replaces the previous OPS (from 2007) under former
CEAA. EAs initiated under the former CEAA
that are being conducted as comprehensive studies will still have
the 2007 OPS applied to them.
Legislative Requirements underCEAA
As discussed in Bull Housser's previous
alert on major changes introduced by the passage of CEAA
2012, this new Act lists the environmental effects and factors
that must be taken into account in an EA. These include "any
cumulative environmental effects that are likely to result"
from the proposed project. The OPS provides guidance on how those
cumulative effects are to be considered.
OPS Guidance on Cumulative Environmental Effects
The OPS states that an assessment of cumulative environmental
effects must be done on a case-by-case basis, taking into
characteristics of the project;
risks associated with the potential cumulative environmental
health or status of valued components that may be impacted by
the cumulative environmental effects;
potential for mitigation and the extent to which mitigation
measures may address potential environmental effects; and
level of concern expressed by aboriginal groups or the
The cumulative environmental effects assessment must be done
before determining the significance of any adverse environmental
effects of the proposed project.
The OPS also describes five steps that should be included in all
cumulative environmental effects assessments. This information will
assist project proponents and responsible authorities in the EA
process. According to the OPS:
Step 1: Initial Scoping
Scoping is an iterative process that includes identifying valued
components, determining the spatial and temporal boundaries of
physical activities, and examining physical activities that have
been and will be carried out.
Step 2: Analysis
Methodologies, assumptions, uncertainties, and conclusions
should be clearly identified and described. Even when there is
little supportive data or predictive uncertainty, potential
cumulative environmental effects should still be considered and may
be supplemented by computer models or data from other comparable
areas. Community knowledge and aboriginal traditional
knowledge should be incorporated.
Step 3: Identification of Mitigation
Mitigation can occur either by eliminating, reducing, or
controlling a project's environmental effects (the preferred
option), or restitution for damage to the environment, e.g.
restoring habitat or purchasing land. Both forms of mitigation
can be considered in deciding whether the project is likely to
cause significant adverse environmental effects.
Step 4: Determination of Significance
Significance predictions should be presented and rationalized
against defined criteria in the Agency's guide, entitled,
Determining Whether a Project is Likely to Cause Significant
Adverse Environmental Effects (1994) or future updates to this
Step 5: Follow-Up
Project-specific environmental effects and cumulative
environmental effects should be addressed. Additional guidance
is available in the Agency's Follow Up Programs under the
CEAA (2011) or future updates to this OPS.
As the federal EA regime continues to take shape under the new
CEAA 2012, Bull Housser will continue to advise our
clients on key developments.
This article was authored by Emily Chan and Jana McLean.
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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In Fort Nelson First Nation v. British Columbia (Environmental Assessment Office), 2016 BCCA 500, the B.C. Court of Appeal recently considered three issues involving the Reviewable Projects Regulation under B.C.'s Environmental Assessment Act:
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