Canada: Proposed Changes To The Federal Environmental Assessment Regime And Creation Of The Canadian Energy Regulator

Last Updated: April 20 2018
Article by Julie Belley Perron and Kateri Vincent

On February 8, 2018, the Minister of the Environment and Climate Change tabled Bill C-69 (the "Bill"). The Bill has three main thrusts: (i) repeal of the Canadian Environmental Assessment Act (2012) and its replacement by the new Impact Assessment Act; (ii) creation of the Canadian Energy Regulator (the "CER") to replace the National Energy Board, and (iii) amendments to the Navigation Protection Act, including a change in its title to the Canadian Navigable Waters Act. According to the government's timetable, the new statute is to come into force in the spring of 2019.

The new Impact Assessment Act

The federal government is revising its entire impact assessment process and proposing major changes to it. First of all, a single entity called the Impact Assessment Agency (the "Agency"), will be responsible for performing impact assessments, contrary to the current regime under which there are three authorities potentially responsible for assessments. The scope of an assessment will be broadened to cover, inter alia, impacts on society, health and the economy, in addition to the environment. Section 63 of Part 1 of the Bill lists the factors that the Minister must consider in making a determination of the need for an impact assessment, including the extent to which the project contributes to sustainability and the impact it may have on any Indigenous group.

This provision reflects the broadened scope of the new legislative framework to be instituted by the Bill. By expressly including among the types of interests to be taken into consideration the concept of the impacts a project may have on any Indigenous group and on the rights of Indigenous peoples recognized and affirmed by section 35 of the Constitution Act, 1982, the Bill thus broadens the concept of "public interest". This allows the government to take into consideration factors such as a project's positive or negative economic, cultural and social impacts on any Indigenous group. This addition also includes express recognition of the rights of Indigenous peoples and is essentially a codification of the Crown's constitutional duty to consult them.

Another change proposed by the Bill that we believe is important for project proponents is the addition of a preparatory phase for the assessment of a project, which is outlined in section 10 (1) of Part 1 of the Bill. The purpose of this preparatory phase is to allow upstream consultation regarding any project. During this preparatory phase the project proponent must present an initial description of the project so that the Agency can, at the very outset of the process, consult communities, Indigenous groups, jurisdictions and members of the public likely to be affected by the project. The Agency will base itself on these consultations in commenting on the project's description, and the proponent will have to present a revised description of the project to reflect how it intends to respond to the questions asked during the consultation period. The purpose of the consultation is to allow all jurisdictions to have meaningful influence on the design of the project. The Agency has 180 days to provide the project proponent with a notice of the commencement of the impact assessment of the project and the results of the consultation on the initial description of the project. The length of this period marks a significant changefrom the current 45-day period during which the current agency can determine if a project is subject to an assessment, which includes 20 days of public consultation.

For projects that are subject to an impact assessment, three documents will be published to orient the impact assessment process: (i) a collaboration plan for the impact assessment (including a consultation and partnership plan with Indigenous peoples and a public participation plan prepared in collaboration with Indigenous peoples, jurisdictions and stakeholders), (ii) the adapted guidelines relating to the impact study, and (iii) the permit issuance plan, as applicable.

With respect to the duty to consult Indigenous groups provided for in the Impact Assessment Act it remains to be seen how this will be harmonized with the constitutional duty of the Crown to consult Aboriginal peoples recognized by the Supreme Court of Canada in Haida Nation v. British Columbia (Minister of Forests).

In addition to this duty to consult, the Impact Assessment Act also provides for the possibility of entering into agreements with Indigenous governing bodies. As the Impact Assessment Act indicates, some of these agreements will likely involve the delegation of the entire impact assessment process to Indigenous groups.

By these measures, the federal government is expressly demonstrating its intention to have Indigenous groups participate in all stages of the decision-making process and to give them more responsibilities. While there is no reference to the concept of free, prior and informed consent as recognized by the United Nations Declaration of Rights of Indigenous Peoples, the Bill represents a major milestone in the establishment of a dialogue with Indigenous groups and recognition of their rights. In this regard, it is important to underscore the federal government's intention to integrate both scientific information and traditional knowledge of Indigenous peoples into the assessment process.

It is interesting to note that the federal government's approach in the Bill appears to respond to the same concerns regarding public participation as the new approach proposed by the Quebec government in its draft regulation on the environmental impact assessment and review procedure for certain projects. In both cases, increased public participation is mandated as of the submission of the initial description of the project, and it is the minister responsible who decides on the relevance of comments received and who indicates to the proponent the concerns to be taken into account in preparing the impact study.

Consultations on the list of designated projects

The proposed Impact Assessment Act will include a list of designated projects established by regulation, and it has been suggested that the new list fully retain the current list of projects that are subject to an assessment. Despite the clarity and foreseeability afforded by such an approach, the federal government has expressly undertaken to modify the list of designated projects. In this regard public consultations are currently underway to gather comments from the public and establish the necessary criteria for updating the list of designated projects. A provisional list will subsequently be proposed and will be subject to another round of consultations. The comments received to date reveal certain tendencies inherent in the current list. In the eyes of many the list is overly centered on certain industries, such as mining.

Here are some examples of projects likely to be included on the new list:

  • in situ oil sands production;
  • hydraulic fracking;
  • potash mining;
  • large-scale wind-farms.

The new list should thus diversify the activities and sectors to be reviewed by the federal government. The eventual changes proposed to the list of activities that are to be subject to the assessment process will be determined based on the negative environmental impacts of a project in an area of federal jurisdiction.

Creation of the Canadian Energy Regulator

The CER will be responsible for regulating pipelines, developing energy resources and marketing energy. Thus, the CER, like the current National Energy Board (the "NEB") will be responsible for overseeing federal, interprovincial and international energy projects. However, the CER will also, for the first time, have the power to regulate offshore renewable energy projects.

The Bill is aimed at modernizing the NEB by: (i) increasing the independence of the CER; (ii) ensuring greater foreseeability and rapidity in making decisions; (iii) enhancing safety and environmental protection; (iv) ensuring a more inclusive process; and (v) promoting increased participation of Indigenous communities.

Here are some examples of the measures proposed in the Bill in this regard:

  • separation between the decision-making function of the CER and its administrative function;
  • the CER will assess non-designated projects, and the process will take 300 days rather than 450 days;
  • the Minister will have the power to make a conclusive, non-appealable decision on export licences;
  • at least one member of the board of directors and one of the CER's commissioners must be a member of a First Nation, a Métis or an Inuit; and
  • in making its decisions the CER must take into account any adverse effect that the project may have on the rights of Indigenous peoples.

Proposed changes to the Navigation Protection Act

The major proposed change to the existing statute, apart from the change in its title to the Canadian Navigable Waters Act, is the reconfiguration of certain powers of the Minister of Transport and the institution of new procedures for constructing works in, across or over navigable waters. In this regard there will be three types of works involving navigable waters: (i) major works, the construction of which will require the approval of the Minister of Transport, (ii) works listed in a schedule to the statute, for which approval will also be required, and (iii) other works which are subject to a public notice process.

The final versions of the Bill and the draft regulations thereunder that will be published over the coming year in conjunction with the consultation process will have to be closely scrutinized. For more information in this regard, please contact one of the members of our team.

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.

Julie Belley Perron
Similar Articles
Relevancy Powered by MondaqAI
Thompson Dorfman Sweatman LLP
Norton Rose Fulbright Canada LLP
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Thompson Dorfman Sweatman LLP
Norton Rose Fulbright Canada LLP
Related Articles
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