In 2012, I wrote an article about the Conservative
government's enactment of CEAA 2012 called "Fixing the
Energy Approval Process in Canada." For people who aren't
involved in environmental assessment (EA) processes, CEAA 2012 is
short for the Canadian Environmental Assessment Act, 2012.
CEAA 2012 was one of the pieces of federal legislation that became
a lightning rod for complaints about the Conservative
government's approach to environmental assessments.
The article began, "It was a dark and stormy night."
It went on to describe the evil hordes who were storming the gates
of then-EA process (a.k.a. "enemies of Canada") and
attempted to analyze the Conservative government's
Clearly not many people read it. Unfortunately, I signed away
copyright but, if you're interested, you can find it on LexisNexis or the Alberta Law Review.
It appears that we are now at the dawn of a new era. On January
27, 2016, the new Liberal government formally announced its review of the federal
environmental assessment process. While we're still in early
stages, a number of things are clear.
One: It's been almost exactly four years
since the last overhaul of the federal EA process. This seems like
way too short a period of time to be redoing these things.
Two: The new government is intent on
undertaking this review — and "restoration" of the
existing process. Therefore, ignore point one (other than,
hopefully, we're wise enough not to be doing this again in
another four years).
There were some suggestions in the government's press
release about the direction it is leaning. It emphasized the
The overall goal of the process is to restore public trust in
Canada's environmental assessment processes
Public input will be sought and considered
Decisions will be informed by scientific evidence (Note: the
fine print described this in more detail as "science,
traditional knowledge of Indigenous peoples and other relevant
Indigenous peoples will be more fully engaged in reviewing and
monitoring major resource development projects
The process will have greater transparency.
There are undoubtedly further points here but for now I'll
stick with what appears to be the most important issue from a
purely legal perspective.
Three: There will be aboriginal groups and
lawyers who will note the "reviewing and monitoring"
language in the press release and suggest that this doesn't
reflect a full and honourable understanding of the federal
government's obligations to Aboriginal Peoples. Anything you
say, can and will be used against you. Don't worry, you can fix
Four: The new process will incorporate climate
At the same time as announcing the review process, the
government announced its principles for projects that are
being assessed under the existing process:
No existing project proponent will be asked to return to the
Decisions will be based on science, traditional knowledge and
other relevant evidence (as discussed)
The views of the public and affected communities will be sought
Indigenous peoples will be meaningfully consulted, and where
appropriate, impacts on their rights and interests will be
Direct and upstream greenhouse gas emissions linked to the
projects under review will be assessed.
Given that greenhouse gas emissions are being added to projects
under review, it seems safe to assume that they will also be part
of the requirements for new projects.
No details were provided on these measures. However, the
government did announce extensions to the legislated time limit for
its decision on the Trans Mountain expansion project of four months
and the Energy East pipeline project of nine months to
"create space" for these measures.
Last point (for now), when I wrote my article four years ago,
the primary protagonists were the federal government, environmental
NGOs and aboriginal groups. Since then, a broader group of voices
have joined the debate, many in the form of provincial and
municipal governments. Indeed, contemporaneously with the
government's announcement, the Ontario government announced its support for its understanding of
the federal government's intentions — while continuing to
restate its interests.
Talking about EAs has clearly become sexy. Hopefully, talking
about reviewing EA processes quickly and effectively can be equally
as sexy. Stay tuned.
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