Canada: The Canadian Environmental Assessment Act, 2012 — 3rd Challenge Facing Project Proponents

This article is the last of three articles on challenges facing project proponents under federal environmental assessment law. These articles address the terms of the current Canadian Environmental Assessment Act, 2012 (CEAA/12)1 in the absence of any court judgments interpreting its provisions.

At a high level, the present regime appears similar to the predecessor regime set out in 1992 legislation (CEAA/92): both focus on assessing significant adverse environmental effects.  However, in other key respects, CEAA/12 departs from the approach of CEAA/92 and introduces new principles to federal EA practice.

As set out in the initial article, many of these new principles arise within three core attributes of CEAA/12:

  1. Few projects trigger CEAA automatically.
  2. Where triggered, the project subject to EA is broad, if not comprehensive.
  3. The scope of each assessment or determination of effects is project-specific and restrictive.

The present article deals with the third core attribute. Further details on all of these points may be found in the recently published 2016 Guide to the Canadian Environmental Assessment Act (LexisNexis Canada 2015), hereafter referred to as the "Guide."

This aspect of CEAA/12 is new. It has broad application to virtually all decisions under CEAA/12, not just EA decisions. It is also, unquestionably, the most complex aspect of this regime.

Unfortunately, this complexity is paired with risk.  It is difficult to get the right answer, and yet a failure to get the right answer is jurisdictional.  An incorrect approach to scoping the assessment and its coverage of effects has clear potential to put in doubt an entire EA. These points thus create fundamental challenges for proponents dealing with CEAA/12. 

The effects subject to CEAA/12 are project-specific and restrictive

It is useful to review the approach to assessing environmental effects required by CEAA/92 and the predecessor federal EA regime before addressing how CEAA/12 deals with this topic.

Prior to CEAA/92, the 1992 decision on federal EA from the Supreme Court of Canada in Friends of the Oldman River Society ("Oldman") 2  included reasons on the meaning of the term "environmental quality." The Court rejected suggestions that this term was limited to the biophysical environment. The Court concluded that this term included the biophysical environment as well as the human socio-economic environment. This aspect of Oldman suggests a broad meaning to the scope of environmental effects.

Additionally, based on the terms of the federal EA regime at the time, Oldman set out three constitutional principles on the scope of federal EA and the effects reviewed:3

  1. the constitutional scope of a federal EA is project-specific, not general;
  2. each federal EA must consider all "federal responsibilities" affected by a project; and
  3. the scope of environmental effects depends on the nature of the federal decisions involved.

The Court devoted considerable attention to Principle (3).  In particular, the Court distinguished between: (a) resource-impact decisions (e.g., whether a project was likely to cause harmful alteration, disruption or destruction of fish habitat), which were narrow in scope, and (b) public interest decisions (e.g., whether it was in the public interest to authorize a dam across a navigable waterway), which were broad in scope. The latter could include purely "local effects," for example.

CEAA/92 was drafted and passed by Parliament prior to Oldman, but not proclaimed in force until after Oldman. Importantly, CEAA/92 followed the first two constitutional principles of Oldman, but did not demand adherence to the third Oldman constitutional principle.4 

Most importantly, CEAA/92 expressly contrasted with Oldman on the scope of environmental effects. CEAA/92 imposed a two-tier structure on "environmental effects" from a project. The first tier was reserved for biophysical effects set out in the CEAA/92 definition of "environment." CEAA/92 required that an EA consider all of these biophysical effects of a project. However, CEAA/92 relegated all socio-economic effects to second tier status. In contrast to Oldman, CEAA/92 provided that a federal EA could consider socio-economic effects only if the project directly changed the biophysical environment and such change to the biophysical environment was likely to result in indirect effects on the socio-economic environment.5

CEAA/12 follows a new path in relation to Oldman. Like CEAA/92, it does not follow the broad meaning for the "environment" set out in Oldman; however, unlike CEAA/92, CEAA/12 creates a two-tiered approach to the Oldman constitutional principles.   

Section 5(1) addresses the first tier of the CEAA/12 constitutional hierarchy.  It sets out those effects that are mandatory for virtually every federal decision under this regime, including not only EA decisions but also section 67 determinations.  Through this section, CEAA/12 identifies a very narrow range of mandatory effects. Not only is the CEAA/12 approach narrower than Oldman, it is also narrower than CEAA/92.  It is narrower in the range of mandatory biophysical effects as well as the range of socio-economic effects.

CEAA/12 constrains biophysical effects through section 5(1)(a). Although CEAA/12 uses the same definition of the "environment" as CEAA/92, it employs a pathways approach to limit what must be taken into account.6 CEAA/12 limits what must be taken into account to three biophysical endpoints: fish and fish habitat, migratory birds, and aquatic species at risk.  Thus, the core of federal EA is limited to changes that affect at least one of these three biological endpoints.7 Table 1 below summarizes the scope of s.5(1)(a).

Table 1

Environmental changes to be taken into account under paragraph 5(1)(a) of CEAA/12 

No.

Sub-section

Para-graph

Types of environmental changes

Column 4

Pathways

Column 5

End Points

(1)

5(1)

(a)

 

 

Changes to the environment that cause or contribute to changes in Column 5:  

- A. air (air quality, noise)

- B. water (quality/quantity)

- C. land (soils, stability)

- D. organic matter and living organisms

- E. natural systems (wetlands, forests, grasslands)

(a)(i) Environmental change to fish and fish habitat

(2)

(a)(ii) Environmental change to aquatic species at risk 

(3)

(a)(iii) Environmental change to migratory birds

Section 5(1) of CEAA/12 provides three exceptions to this very narrow scope for biophysical effects.  Having regard for the range of projects developed in Canada, these exceptions are very narrow: they arise only if the project changes the environment (a) on federal lands, (b) outside the province where the project is located, or (c) across an international boundary.  CEAA/12 mandates that each of these changes must be taken into account through s.5(1)(b). Table 2, below, summarizes the scope of the s.5(1)(b) additions to the scope of mandatory EA.  

Table 2

Environmental changes to be taken into account under paragraph 5(1)(b) of CEAA/12

No.

Sub-section

Para-graph

Types of environmental changes

Column 4

Pathways

Column 5

End Points

(1)

5(1)

(b)

Changes to the environment that cause or contribute to effects in (b).  

In particular:

- A. air (air quality, noise)

- B. water (quality/quantity)

- C. land (soils, stability)

- D. organic matter and living organisms

- E. natural systems (wetlands, forests, grasslands)

(b)(i) Environmental change to federal lands

(2)

(b)(ii) Environmental change across provincial boundaries

(3)

(b)(iii) Environmental change across international boundaries

CEAA/12 constrains socio-economic effects through s.5(1)(c).  It provides that the mandatory consideration of socio-economic effects is limited to project effects on aboriginal peoples.   Through s.5(1)(c), CEAA/12 provides that any environmental change resulting in one of four listed effects on aboriginal peoples must be taken into account.   This narrowing is inconsistent with Oldman and CEAA/92. Table 3, below, addresses these effects.

Table 3

Environmental changes and effects to be taken into account under paragraph 5(1)(c) of CEAA/12

No.

Sub-section

Para-graph

Types of environmental changes and effects

Column 4

Pathways

Column 5

End Points

 

(1)

5(1)

 

(c)

 

Changes to the environment that cause or contribute to effects in (c).  

In particular:

- A. air (air quality, noise)

- B. water (quality/quantity)

- C. land (soils, stability)

- D. organic matter and living organisms

- E. natural systems (wetlands, forests, grasslands)

With respect to aboriginal peoples, an effect in Canada of any change to the environment on

(i) health and socio-economic conditions,

(ii) physical and cultural heritage,

(iii) current use of lands and resources for traditional purposes, and

(iv) any structure, site or thing of historical, archaeological, paleontological or architectural significance

(2)

(3)

(4)

In sum, s.5(1) of CEAA/12 provides explicit guidance on the mandatory scope of  environmental effects. It demands consideration of three biological effects, three territorial effects, and socio-economic effects on aboriginal peoples.  All seven categories of effects are firmly grounded in the powers of the federal government under Canada's Constitution.  Nevertheless, this first tier of the CEAA/12 constitutional hierarchy raises constitutional issues.  It appears to be fundamentally at odds with the Oldman decision which demanded that federal EA be tied to federal decision-making powers. This aspect of CEAA/12 appears to authorize federal EA where there is no tie to federal decision making.

Subsection 5(2) provides the second tier to the CEAA/12 constitutional hierarchy.  It implements the third constitutional principle of Oldman. This subsection has two parts.  The first part is set out in paragraph 5(2)(a) and summarized in Table 4, below.  This first part deals solely with  environmental changes that were not listed in section 5(1).  It permits a federal EA to take into account additional environmental changes, but only where such changes are relevant to a specific federal approval required by the project.8

Table 4

Examples of environmental changes that meet the 2-part test in paragraph 5(2)(a)

No.

Sub-section

Para-graph

Part 1

Environmental Changes

Part 2

Regulatory

Linkage

Examples of environmental changes that meet the 2-part test

(1)

5(2)

(a)

The change must be to the environment,

BUT

Change must be other than a change referred to in paras. (1)(a) and (b)9

2.  Change must be directly linked/ necessarily incidental to a federal exercise of a legislative power, duty or function10

1. Radiation 

2. Emission of toxic substance 

3. Navigability

(2)

(3)

The second part of s.5(2) deals exclusively with socio-economic effects.  CEAA/12 sets out a three-part test for a socio-economic effect to be part of federal EA:11 (1) the effect must result from a s.5(2)(a) change to the environment, (2) the effect must fit one of three categories of effects: health and socio-economic conditions, physical and cultural heritage, or a structure, site or thing of cultural significance, and (3) the effect must be other than an effect taken into account in s.5(1)(c) (i.e., an effect on aboriginal peoples). The test applicable to socio-economic effects on non-aboriginal persons and communities is set out in Table 5, below.

Table 5

Environmental effects that meet the 3-part test in paragraph 5(2)(b)

No.

Sub-section

Para-graph

Part 1

Environmental Changes

Part 2

Included Effects

Part 3

Excluded Effects

(1)

5(2)

(b)

The effect must result from a change to the environment within the meaning of paragraph 5(2)(a)

The effect must be on:

(i) Health and socio-economic conditions

(ii) Physical and cultural heritage, or

(iii) Structure, site or thing of cultural significance 

The effect is other than an effect referred to in para. (1)(c)12

(2)

(3)

In sum, s.5(2) has a novel approach to the Oldman constitutional principles.  Consistent with Oldman, s.5(2) demands that the scope of an EA be project-specific, not general.  Similarly, like Oldman, s.5(2) demands that the scope of an EA be directly tied to required federal decision making on a project.  However, s.5(2) makes no provision to follow the second Oldman principle, which is to ensure that a federal EA considers all effects on matters of federal responsibility.

Conclusions

Overall, CEAA/12 introduces many novel principles to federal EA regarding the scope of  environmental effects.  These principles present challenges to all proponents of designated projects.  Though the approach looks advantageous to proponents because the scope of such effects is narrower than the scope set out in CEAA/92, the scope is tied to legal requirements to identify all federal decisions relevant to a project and correctly identify the effects specifically tied to these decisions.  There are also constitutional issues with the CEAA/12 approach.

Based on the experience with CEAA/92, it is likely that litigation is required to clarify the scope of these novel CEAA/12 provisions and departures from earlier EA principles and practices.

Footnotes

1 Enacted by S.C. 2012, c.19, and in force, July 6, 2012.

2 See Friends of the Oldman River Society v. Canada (Minister of the Environment) [1992] 1 SCR 3 at 37 ("Oldman"), discussed in Guide, pp.161-3.

3 See Guide, pp.179-191.

4 This statutory departure from Oldman was made clear in the single Supreme Court of Canada decision to deal with CEAA/92: MiningWatch Canada v. Canada (Minister of Fisheries and Oceans) [2010] 1 SCR 6.  There, the Court determined that, as concerns a project requiring a Fisheries Act habitat authorization (i.e., a narrow resource-based decision), the trigger for federal decision making was not the key to determining the scope of the assessment. To the contrary, the Court overturned an EA and a Court of Appeal decision that focused the EA on those aspects of the project that were directly related to the fisheries authorization.  Instead, the Court determined that CEAA/92 made central whether the project was on the comprehensive study list.  Where a project was on this list, the government was required to consider the full project and carry out a broad assessment of effects.

5 See Guide, pp.157-8.

6 See Guide, pp.172-3.

7 Importantly, the pathways aspect of CEAA/12 does mean that the relevant "environmental effects" do include changes to the "environment" that affect one of these three listed endpoints.

8 See Guide, pp. 176-7.

9 Thus, s.5(2)(a) environmental changes cannot include: (a.i) fish and fish habitat, (a.ii) aquatic species at risk, (a.iii) migratory birds, (b.i) federal lands, (b.ii) change in another province, or (b.iii) change in another country.

10 See Guide, pp.160-1.

11 See Guide, p.178.

12 Thus, s.5(2)(b) effects cannot include: (c.i) aboriginal health, (c.i) aboriginal socio-economic conditions, (c.ii) aboriginal physical and cultural heritage, (c.iii) aboriginal current use of land for traditional purposes, or (c.iv) structure, site, or thing of aboriginal cultural significance.

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 Mondaq.com.

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

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
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
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

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