Canada: Government Of Canada Enacts Changes To Environmental Assessment Processes

On June 21, 2019, the federal government of Canada (Canada) passed Bill C-69, new legislation that will materially reform the federal environmental assessment regime in Canada. The reforms will see the National Energy Board (NEB) replaced by the Canadian Energy Regulator (CER) and the Canadian Environmental Assessment Act, 2012 (CEAA 2012) replaced by a new Impact Assessment Act (IAA). See our initial review of the proposed reforms.

Bill C-69 was subject to a review by the Standing Senate Committee on Energy, the Environment and Natural Resources. On June 5, 2019, after hearing from interested parties across the country, including members of Osler’s Regulatory, Environment, Aboriginal and Land Group, the full Senate passed a suite of close to 190 amendments to Bill C-69. Canada agreed to accept roughly half of these, but largely rejected the proposed amendments put forward by Conservative senators as well as several amendments proposed by independent (formerly Liberal) senators that would have improved the Bill. Although the final amended version of Bill C-69 can be considered an improvement over the original draft, the new legislation introduces considerable uncertainty into the federal environmental assessment processes, and key issues that plagued Bill C-69 from the outset remain.

Bill C-69, as amended, introduces considerable uncertainty into the review process

Bill C-69 will exacerbate the ongoing issues of regulatory uncertainty and protracted timelines that currently exist under CEAA 2012, which are seriously impairing Canada’s ability to attract investment. Environmental assessments under the IAA will continue to take longer than necessary and will provide Canada with the opportunity to repeatedly “stop the clock,” thereby raising the spectre of indefinite delays. In addition, Bill C-69 allows for a degree of public participation that will not serve to provide the Impact Assessment Agency of Canada (Agency) or CER with the best available, relevant evidence. Rather, all interested persons, many of whom may have no connection to the project being reviewed, will be allowed to opine on and object to the project on unrelated grounds that may be completely outside the proponent’s control. Overall, the process has become increasingly politicized and represents a shift away from decision-making by expert quasi-judicial bodies. Further, while Bill C-69 attempts to address perceived public concerns with the current regulatory regime, in our view it will likely serve to make the process less efficient and will not improve the environmental outcomes of the regulatory process.

Summary of noteworthy amendments proposed by the Senate and passed by the House

The following summarizes some of the noteworthy amendments to the original version of Bill C-69 that were included in the final version of the Bill that was passed into law, including some of the few amendments that improve the Bill relative to its earlier version: 

  • In many places, ministerial discretion has been replaced with discretion of the new Agency (which will replace the Canadian Environmental Assessment Agency). These changes are in response to concerns that the federal Minister of Environment and Climate Change had too much power under the IAA to interfere with impact assessments but replacing ministerial discretion with the Agency’s discretion simply creates new concerns. For example, the Agency now has the ability to suspend time limits established under the IAA that are intended to make the Agency more efficient. In our view, allowing the Agency to suspend time limits if it fails to carry out its functions within the legislated time period undermines the purpose of the time limits in the first place.
  • The Agency will now be determining the scope of the factors to be considered in an environmental assessment in the notice of commencement, which is issued at the outset of the process. This should provide the proponent with a degree of certainty about the scope of the assessment prior to carrying out its assessment studies, thereby allowing the proponent to appropriately focus its studies on the relevant issues for the project.
  • When considering regional and strategic assessments, the IAA now expressly allows the Agency or review panel to consider the weight to be given to that assessment, including the relevance of the assessment to the project and the strength of evidence behind it. This amendment reduces the risk that regional or strategic assessments would be finalized and the Agency and review panels would then treat those assessments as binding, regardless of the strength of evidence behind them.
  • The “significance” threshold has been reinserted into the IAA as the key threshold for measuring adverse effects in assessment reports. In our view, this threshold helps to provide focus for the assessment and distinguish between material and immaterial impacts. The test for project approval, however, is still the “public interest,” including consideration of the project’s “contribution to sustainability,” consistent with the first version of Bill C-69.
  • The Agency is now tasked with reviewing reports issued by review panels and submitting recommendations to the Minister regarding the conditions that should be imposed on the project. This is problematic for three reasons. First, it is not clear why the Agency is being asked to perform this function, and it will likely result in unnecessary duplication of efforts and costs. Second, there is no time limit for the Agency’s recommendations and the ultimate decision by the Governor in Council will not be made until 90 days have passed after the Agency’s recommendations have been received. The Agency’s role in this process will therefore likely result in delays. Third, and perhaps most importantly, the Agency will not necessarily attend the review panel hearings but will be essentially second-guessing the review panel without the benefit of hearing the evidence. This creates concerns regarding procedural fairness if the Agency is recommending conditions on a project that the proponent has not had an opportunity to review and respond to.

The Project List and transitional provisions create uncertainty

Bill C-69 will come into force on a date to be proclaimed by the government, which is currently unknown. Before the Bill comes into force, however, the key regulation under the IAA (the regulations designating physical activities, or “Project List,” which sets out the types of projects that will be subject to the IAA) will likely need to be finalized. Canada has released a Consultation Paper On Approach to Revising The Project List to seek public comment on revising the current Project List.

Notably for industry, once Bill C-69 comes into effect, not all projects currently being assessed under the existing CEAA 2012 will be grandfathered by this new legislation. For example, environmental assessments that are currently being conducted by the NEB or the Canadian Nuclear Safety Commission, and for which the Agency considers that the proponent has not collected the information or undertaken the studies required, may be transitioned to the new process once the IAA comes into force. As such, the transitional provisions of the IAA create considerable uncertainty for ongoing projects.

The ultimate impact of Bill C-69 on environmental assessments in Canada will be influenced by the details contained in the regulations once passed, who gets appointed to lead the Agency and serve as CER commissioners, and how those individuals implement the new legislation. Until the details of the new regime are well understood and have been tested through actual project assessments and litigation, we expect regulatory uncertainty will continue to be a major barrier to investment in Canada.

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
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please 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