Canada: Canadian Government's Proposal To Reform Canada's Environmental Assessment And Regulatory Regime

On June 29, 2017, the federal government released a discussion paper entitled "Environmental and Regulatory Reviews" ("Discussion Paper"), which proposes broad changes to the federal environmental assessment and regulatory regime, including "a comprehensive suite of changes" to the Canadian Environmental Assessment Act, 2012 ("CEAA 2012"), National Energy Board Act, Fisheries Act and Navigation Protection Act  that will be drafted in the fall of 2107.

These legislative changes follow extensive government consultations and two expert reports, including "Building Common Ground: A New Vision for Impact Assessment in Canada" ("Common Grounds") released in April 2017, and "Forward, Together Enabling Canada's Clean, Safe and Secure Energy Future" ("NEB Modernization Report") released in May 2017. As discussed below, the Discussion Paper has addressed some of the concerns raised by several controversial recommendations outlined in both Expert Reports and offers a more balanced approach to the statutory and policy changes required to update the federal environmental and regulatory framework. Despite reducing the scope of the changes recommended in the Expert Reports, the current proposal will nonetheless add substantial complication, time and cost to the review of projects.

While the federal government drafts its legislative package, it will be guided by the interim principles announced in January 2016. The Discussion Paper calls for comments by August 28, 2017.

We have summarized the key changes that would affect the approval process, permitting requirements and timelines for proposed natural resource projects.

A. Project Impact Assessment

The Discussion Paper emphasizes that some elements of the current environmental assessment system are working and should continue, including:

  • a strong role for expert regulators in energy transmission, nuclear and offshore oil and gas development;
  • legislated timelines and Project List Regulations (if there are clear criteria and regular reviews and updates);
  • screening process to identify projects that do not require a full assessment;
  • decisions with enforceable conditions; and
  • tools for cooperation between federal and provincial jurisdictions.

As part of the new Impact Assessment process, the federal government will:

  • create a single agency conducting assessments independently or jointly with expert regulators subject to the final decision by the Minister(s) or Cabinet on whether the project is in the public interest;
  • introduce legislated early planning and engagement stage of the approval process;
  • focus on Indigenous peoples consultation and enhance public participation;
  • conduct strategic and regional assessments to address cumulative effects of projects, particularly those related to GHG emissions and climate change; and
  • ensure cooperation with jurisdictions, including Indigenous governments.

Single Agency and Joint Assessments

The federal government proposes to establish a single Impact Assessment Agency for conducting impact assessments (independently or jointly with expert regulators on energy transmission, nuclear and offshore oil and gas projects) and coordinating consultation with Indigenous peoples for federally designated projects. Assessment will include not only environmental, but also economic, social and health issues as well as impacts on Indigenous peoples. Success with this approach depends on the agencies having the ability to assess the other dimensions of a project, particularly the economic and other positive benefits.

Statutory Requirement for Early Planning and Engagement

The Discussion Paper states that the early planning and engagement process will be "led by proponents with clear direction from government" and will involve, among other things, direct engagement between the Crown and Indigenous peoples, and seeking public feedback on the initial list of issues to consider in an assessment. The intent is to help proponents plan what will be assessed and how they should incorporate "the interests of multiple stakeholders and consider Indigenous rights and interests". This early planning and engagement should also help set public expectations about what will be assessed and how.

Indigenous Peoples Consultation

Reconciliation of the interests of Indigenous peoples and the Crown is an overarching objective for the legislative reforms. The federal government's approach to Indigenous peoples consultation will be more comprehensive, structured and will include direct Indigenous peoples' involvement in the impact assessment of projects.

The Discussion Paper also notes the importance of clarifying the Crown agency roles for consultation and accommodation, which was an area of concern following the Common Grounds Expert Report. It explains that the new Impact Assessment Agency will be responsible for coordination of consultation and accommodation for federally designated projects—an approach similar to the Aboriginal Consultation Office created by the Government of Alberta in 2013.

The Crown will be required to engage directly with Indigenous governments at the early planning stage of the process. The Impact Assessment process will respond to and in some cases will be based on the Indigenous knowledge, decision-making, jurisdiction and rights. Indigenous governments may lead and conduct their own assessments and share administrative authority and management responsibility of the federal government (e.g., appoint their own environmental monitors). In some cases, the federal Impact Assessment process will defer to or be harmonized with the assessment processes created by Indigenous governments. At the same time, the Discussion Paper recognizes that consensus might not be achievable, and Indigenous peoples will not have a veto over projects.

Public Participation

The Discussion Paper states that public participation will be enhanced by improved participant funding programs to "streamline applications and expand eligible activities". The experience with participant funding in other regulatory situations suggests that the funding program requires careful design and administration to achieve its goals. Given the intent to relax the interested party test (see below), the issue of participant funding increases in importance.

Other proposed changes in public participation include user-friendly public access to project information, clearer transparency requirements, clear reasons supporting decisions and explanations of how the stakeholder input was considered, and inclusive monitoring and compliance activities.

Strategic and Regional Assessments to Consider Cumulative Effects

The Discussion Paper suggests that meaningful impact assessment of an individual project requires an understanding of the "big picture" of the state of the environment regionally and nationally, including the cumulative effects of development. To achieve that goal, the new approach will allow for strategic and regional assessments. The government will also: develop and strengthen national frameworks (Pan-Canadian Framework for Clean Growth and Climate Change and Air Quality Management System); and conduct strategic assessments, starting with one for climate change, and regional environmental assessments (REA) with a focus on cumulative effects and impacts on Indigenous peoples. As an environmental assessment tool, REAs have already been implemented by the federal government in the Arctic offshore context (e.g., the Beaufort Sea REA included in the 2016 Federal Budget).

Collaboration with provincial and territorial governments will be essential to develop effective and efficient approaches to cumulative effects assessments.

Cooperation with Provincial and Indigenous Jurisdictions

In accordance with the principle of "one project, one assessment" and the focus on single, integrated impact assessment process, the federal government indicates that it will work with provincial and Indigenous governments to:

  • maintain and further develop the existing substitution process, which could be applied if the provincial or indigenous assessment process is aligned with the federal standards (as opposed to the "highest standard prevails" approach recommended in the Common Grounds Expert Report);
  • enter into specific cooperation agreements with "interested jurisdictions", which could also help plan and manage cumulative effects across jurisdictions; and
  • provide for Ministerial approval of exceptions to legislated timelines to better align assessments with other jurisdictions.

B. National Energy Board Act

The proposed changes to the National Energy Board Act focus on the Board's statutory authority and its structure. The proposed legislative changes would specifically empower the NEB to assess environment, safety, social and health issues as part of its existing "public interest" mandate and regulate offshore renewable energy projects under the federal jurisdiction. The Discussion Paper is proposing that the Board should: separate its CEO and Chair; create a corporate-style executive board; appoint separate Hearing Commissioners and enhance diversity, including Indigenous participation; and that the NEB should be maintained in Calgary (the NEB Modernization Report recommended the Board's relocation to Ottawa). Similarly to the Impact Assessment process, the NEB framework will increase public participation and Indigenous peoples' involvement, and will include improved funding programs and intervener capacity building, landowner advocates, alternative dispute resolution, Indigenous peoples monitoring of pipelines and other energy infrastructure.

In addition, the Discussion Paper proposes the elimination of the well-established "standing test" used by the Board. These changes would likely expand and complicate proceedings and hearings by including multiple activist groups or individuals with overlapping or conflicting interests not directly affected by the project under review.

C. Navigation Protection Act

The proposed legislation will: develop clear criteria and process for adding navigable waters to the Schedule of protected navigable waters; regulate obstructions and certain classes of works on such waters, and develop a complaint mechanism for any concerns related to unscheduled navigable waters. The criteria for the "aqueous highway test" will be clarified, and proponents will have to notify and consult with stakeholders before constructing any work on navigable waters.

Further, the amendments will incorporate the Indigenous knowledge and decision-making and allow Indigenous peoples to participate in navigable water decision-making, monitoring and enforcement activities. The government is currently identifying priority navigable waters to be added to the Schedule immediately (i.e., in advance of the proposed legislative changes).

D. Fisheries Act

As part of the proposed changes to the Fisheries Act, the government will:

  • prohibit the harmful alteration, disruption or destruction (HADD) of fish habitat without approval; clarify what authorizations are required for projects;
  • identify avoidance and mitigation measures, including through the development of standards and codes of practice; and
  • enhance its enforcement powers.

Other statutory and policy changes will focus on partnering with Indigenous peoples, planning and integrated management approach, partnering and collaboration, and providing meaningful and timely feedback to Canadians.

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
Nick Bryanskiy
 
In association with
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
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (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 www.mondaq.com

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 Mondaq.com’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.

Disclaimer

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.

Registration

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 by clicking here .

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 unsubscribe@mondaq.com 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.

Cookies

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.

Links

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.

Mail-A-Friend

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.

Security

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 webmaster@mondaq.com.

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 EditorialAdvisor@mondaq.com.

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 enquiries@mondaq.com.

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