Canada: Overlapping Environmental Impact Assessments In Alberta

Last Updated: January 23 2007

Article by Paul Jeffrey, © 2007, Blake, Cassels & Graydon LLP

Originally published in Blakes Bulletin on Environmental Law, January 2007

Faced with the prospect of multiple or overlapping environmental assessments by different levels of government, federal-provincial harmonization schemes have been put in place in most Canadian jurisdictions to address the potential impacts of large projects or undertakings. These typically provide for early notification of proposed projects, co-operative environmental assessments, joint panel reviews and the establishment of provincial "single windows" to implement federal responsibilities under the agreements. A key tool for harmonizing multiple environmental assessments is the power to limit the scope of an individual assessment.

Despite such harmonization schemes, some litigants continue to ask the courts for an interpretation of the federal Canadian Environmental Assessment Act (CEAA) that would result in overlapping environmental assessments, where environmental assessments mandated by provincially-led joint review panels are alleged to be insufficiently comprehensive. A decision this past summer of the Supreme Court of Canada, refusing leave to appeal on one of these challenges, should hopefully lead to a decline in this type of litigation.


Six years ago, TrueNorth Energy Corporation announced its plans to commence operation of an oil sands mine in the Athabasca region north of Fort McMurray known as Fort Hills. Part of TrueNorth’s proposal included the de-watering of Fort Creek (a fish-bearing watercourse and tributary of the Athabasca River) – an action likely to cause a harmful alteration, disruption, or destruction of fish habitat (HADD). HADD is prohibited under the federal Fisheries Act unless expressly authorized by the Minister of Fisheries and Oceans, and such authorizations may only be issued after an environmental assessment has been concluded under CEAA.

The Fort Hills oil sands undertaking was primarily subject to regulation by the Province of Alberta. At the time that the Department of Fisheries and Oceans (DFO) conducted its environmental assessment to the project, an environmental assessment had already been conducted under the Alberta Environmental Protection and Enhancement Act (EPEA), involving public hearings at the Alberta Energy and Utilities Board (AEUB), followed by the issuance of approvals under the EPEA and the Alberta Water Act. Environment Canada made submissions at the hearings on environmental issues related to the oil sands undertaking including possible cumulative effects, air quality issues, and the anticipated impact on migratory birds.

The DFO limited the scope of the project that was to be the subject of the federal environmental assessment to the destruction of Fort Creek and ancillary or subsidiary works and activities.

Three public interest groups – Prairie Acid Rain Coalition, Pembina Institute for Appropriate Development and Toxics Watch Society of Alberta applied to the Federal Court for judicial review of the decision of the DFO to limit the scope of the assessment under CEAA. They considered the scope to be too narrow, asserting that, notwithstanding the AEUB hearings and decision, the CEAA environmental assessment should encompass the entire oil sands undertaking and consider all areas of federal jurisdiction (such as migratory birds, Aboriginal peoples and the water and fisheries of the Athabasca River), not just the potential destruction of fish habitat. The application was dismissed by both the Federal Court trial division and the Federal Court of Appeal. The Appellants then applied to the Supreme Court of Canada for leave to appeal in March of this year.


On July 20, 2006, the Supreme Court of Canada released its decision to dismiss the application. By declining to grant leave to appeal in this case, the Supreme Court left intact the Federal Court of Appeal’s decision as the final full judgment. This judgment clarifies that the power and discretion to scope a project under the CEAA rests entirely with the applicable federal responsible authority. To find otherwise, the Court reasoned, would rob the responsible authority of its statutory discretion to scope the project in accordance with its authority:

"If, as the Appellants seem to argue, the subsection 35(2) trigger requires the project’s scope be the entire oil sands undertaking, a responsible authority would have no discretion under subsection 15(1) of the CEAA as to the scoping of the project for federal environmental assessment purposes. Any trigger would automatically require an overall federal environmental assessment of the entire proposed physical work. Nothing in the CEAA supports the view that project scoping under subsection 15(1) must always include the entire proposed physical work.

In this case, that power and discretion were exercised reasonably and in accordance with the overall provisions of CEAA and the DFO’s harmonization obligations:

As a matter of policy, it is sensible that undertakings with potential adverse environmental effects be subject to only one environmental assessment. ...

It was both legally appropriate and efficient from a policy perspective for the DFO to rely on Alberta’s performance of an environmental assessment."


For project proponents, long drawn-out challenges to the scoping of projects under CEAA should now decline. The federal government, on the other hand, has its work cut out for it: Dan Woynillowicz of the Alberta-based Pembina Institute told the CBC that his organization would now put its efforts into ensuring that CEAA is reformed and strengthened.

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.

Events from this Firm
26 Oct 2018, Other, Vancouver, Canada

Cybersecurity, including data privacy and security obligations, has become a critical chapter in every company’s risk management playbook.

30 Oct 2018, Other, Toronto, Canada

Please join us for discussions on recent updates and legal developments in pension and employee benefits as well as employment law issues.

12 Nov 2018, Other, Toronto, Canada

Stories aren’t falsehoods. Stories are the root of all effective human communications: they motivate, animate and clarify. If you aren’t telling stories, you probably aren’t getting your point across.

In association with
Related Topics
Related Articles
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
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 (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

To Use 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.


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.


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