The New EA Process

The Canadian Government has made sweeping changes to its environmental statutes and regulations. For consultants it is important to understand these changes and how they affect your clients. Changing legislation means changing your advice.

In 2012, Parliament repealed the Canadian Environmental Assessment Act and replaced it with a brand new statute, the Canadian Environmental Assessment Act, 2012 (CEAA 2012). Don’t be fooled by the similar name. There are major changes that will affect:

• whether your client must conduct an environmental assessment (“EA”)

• what environmental effects must be assessed

• how long it will take to complete an EA

• your clients’ business after the EA is complete, and

• how to engage Aboriginal communities.

CEAA 2012 is now in force.

Before answering these questions consider another major change. Under the previous CEAA, the department, ministry or agency conducting the project, or granting funding or approvals, oversaw the environmental assessment. Now the responsibility and authority have been centralized.

• Three agencies have been given responsibility for environmental assessments:

• the Canadian Environmental Assessment Agency

• the National Energy Board

• the Canadian Nuclear Safety Commission.

Simply put, other than for pipelines or nuclear undertakings, the Canadian Environmental Assessment Agency will oversee the EA.

What’s In and What’s Out

The old system of triggers is gone. A project that is on federal land, that receives federal money, or that requires a federal approval, will not necessarily require an EA. For example, projects that formerly required an EA because of a Fisheries Act approval may no longer be caught.

Environmental assessments will now only be required for those projects listed in the Regulations Designating Physical Activities under CEAA 2012. This means that only major projects will now be caught. The list includes mines, large hydro projects and quarries.

Currently projects listed are those that formerly appeared on the Comprehensive Study List under the old CEAA. However, this use of the old list may not fit with the new purpose of the regulation – to catch those projects (and only those projects) with the greatest environmental impact. The Comprehensive Study List included low thresholds for mines, quarries and similar projects since only a small number would require an EA. Now, however, even small mining and quarry projects will require an EA.

But the list of designated projects is far from final. On April 20 the government posted a draft amending regulation. According to Environment Canada: “The physical activities identified in the current Regulations do not appropriately reflect the major projects that have the greatest potential to cause significant adverse environmental effects in areas of federal jurisdiction. Currently, some types of major projects that are considered to have a high potential for such effects are not covered by the Regulations. Conversely, some projects that are currently covered by the Regulations are considered to have a low potential for significant adverse environmental effects in areas of federal jurisdiction.”

Under CEAA 2012, the Minister may designate specific projects to be subject to an EA where there are potential environmental effects on matters under federal jurisdiction. or where public concerns are expressed.

Projects on certain federal lands that are not listed in the regulations will be required to undergo an assessment process outside of the CEAA 2012 process. The assessment will be run by the relevant authority. For example a project in a national park will require an assessment process overseen by Parks Canada.

Provincial environmental legal requirements that applied prior to CEAA 2012, including provincial environmental assessments and approvals for discharges to air and water, will continue to apply.

Project Description – the Off-Ramp

If your client’s project is on the designated project list, it must initiate the process under CEAA 2012, but it may not be required to conduct an EA.

The first step for a designated project overseen by the Canadian Environmental Assessment Agency is to submit a project description. Based on this project description, the agency will decide if an EA is required. The public can provide comments based on the project description.

The agency will consider the project description and public comments to decide if an EA is required. If it decides an EA is not required, no further actions are required by the proponent.

This “off-ramp” is only available for projects that fall under review by the agency. Projects that are under the Canadian Nuclear Safety Commission or the National Energy Board must complete an EA.

Environmental Effects More Narrowly Defined

Previously, the definition of environmental effects was very broad. Once an environmental assessment was triggered, the entire project was reviewed and all environmental effects were considered.

Under CEAA 2012, “environmental effects” have been narrowly defined. They include only those aspects of the environment under federal jurisdiction – fish, migratory birds and aquatic species. Traditional knowledge must be considered. But broader areas of the environment, for example air emissions, are no longer considered.

The narrowing of the scope of CEAA should reduce the time and work required to complete an environmental assessment. However, it may result in more judicial reviews and more difficult public and Aboriginal consultations.

Timelines: When is a

Year More than a Year?

CEAA 2012 includes timelines for completion of each stage of the process.

Once the proponent has submitted a project description, the Canadian Environmental Assessment Agency has 45 days to decide if an EA will be required. This includes a 20 day period for public comment. If the agency decides an EA is required, the remainder of the process from commencement to final decision must be completed in 365 days.

The timelines are “paused” where the agency requests further information from the proponent. The clock does not start ticking again until the agency is satisfied it has all the required information. Keep this in mind when discussing timelines and deadlines with your client.

Decision Statements, Conditions and Penalties

When the Agency has overseen the EA, a decision statement is issued by the Minister of the Environment following completion of the EA process.The decision statement includes any conditions of project approval. Conditions may include mitigation measures and follow up programs. In fact, follow up programs will likely be required in every EA approval.

The conditions set out in the decision statement are enforceable. Federal inspectors will have the authority to examine whether or not the conditions are met, and any proponents that fail to comply could face penalties ranging from $100,000 to $400,000. There are also administrative monetary penalties for less serious contraventions.

CEAA 2012 also provides for fines where a proponent begins a designated project without first submitting a project description.

Duty to Consult

Aboriginal Communities

Whenever there is a government action, for example, issuing a permit that will impact an Aboriginal right or title, the Crown (federal and/or provincial government) has a duty to consult with the Aboriginal communities. The Crown can delegate the procedural aspects of that duty to a proponent.  The previous Act provided a framework for consultation, but with fewer projects now required to perform an EA under CEAA 2012, this framework may be absent.  Proponents and Aboriginal communities are asking questions such as “who, how and when?” For example, a permit to harm an Aboriginal fishery
will trigger a duty to consult, but without the need to complete an EA, parties are left wondering how they proceed.cce

Joanna Vince is an associate at Willms & Shier Environmental Lawyers LLP in Toronto. E-mail jvince@willmsshier.com. This is an adapted version of a presentation she made at the Environmental Liability Seminar held by EcoLog Environmental Legislative Service in Toronto on April 9, 2013.