On February 8, 2018, the Federal Government unveiled its long awaited changes to the Canadian Environmental Assessment Act, 2012, the National Energy Board Act, and the Navigation Protection Act. This was preceded by changes to the Fisheries Act on February 6. Below, we summarize some of the major changes that have been made, and highlight some provisions that are of particular interest.
Canadian Impact Assessment Act
The Canadian Impact Assessment Act replaces the Canadian Environmental Assessment Act, 2012. The Impact Assessment Act establishes a single impact assessment authority named the “Impact Assessment Agency of Canada”. The impact assessments conducted under this Act would not be limited to environmental impacts but will assess a broader range of impacts including environmental, health, social, and economic effects.
What projects will be subject to the act?
The act will continue to maintain a project list approach, while also maintaining the minister’s authority to designate projects if they are not included in the project list schedule. However, the federal government is seeking feedback on what should be included in the list of projects that would be subject to an impact assessment – comments are due by April 15, 2018.
Early engagement and timelines
There is an early planning phase in which the Agency is required to consult with indigenous groups that may be affected by the designated project, along with the province, the public and other stakeholders. This phase can take up to 180 days. While the government maintains that the emphasis on early planning and engagement with Indigenous peoples, provinces, the public and stakeholders to identify and discuss potential effects and benefits will lead to a better project design, it is not clear whether and how this input will impact the impact assessment phase or result in Indigenous groups having meaningful input into the design of the assessment process.
Once the early planning phase has finished, the Agency must determine whether an impact assessment is required, and in doing so, must consider the possible adverse effects of the project, the adverse effects on aboriginal and treaty rights, comments received from the public, and studies conducted by relevant jurisdictions. The impact assessment can either be conducted by the Agency, or it can be referred to a review panel.
If it is conducted by the Agency, the Agency will have 300 days to submit the report to the Minister. If it is referred to a review panel, then the review panel will have 600 days to submit a report to the Minister. Timelines can be extended once by the Minister for a period of up to 90 days. There also may be circumstances in which the clock may need to be stopped for legislated timelines. Details of the process and timelines are set out in the image below.
What will be assessed?
When conducting an impact assessment, a number of factors will have to be considered, including:
- effects of the project, including cumulative effects;
- impacts on Aboriginal and treaty rights;
- purpose and need;
- alternative means of carrying out the designated project or alternative to the project;
- considerations related to Indigenous cultures;
- community knowledge;
- scientific information;
- traditional knowledge of Indigenous peoples;
- any assessment of the effects of the designated project conducted by an Indigenous governing body;
- the extent to which the project contributes to sustainability;
- comments from the public; and
- the intersection of sex and gender with other identity factors.
This list includes a number of considerations that relate to Aboriginal and treaty rights, and indigenous interests.
Decision Making
While the Agency or review panel will assess the impacts of the project, the ultimate authority to determine whether the project is in the “public interest” will remain with the Minister or the Governor in Council (“GIC”). Furthermore, the Act does not contain a definition of what it means for a project to be in the “public interest”; however when determining whether a project is in the public interest, a number of factors must be taken into account including:
- the impact of a project on Aboriginal and Treaty rights;
- whether the project contributes to sustainability;
- the extent to which a project’s impacts are adverse;
- any proposed mitigation measures;
- and the extent to which the effects of the project hinder or help Canada meet its environmental obligations and commitments in respect of climate change.
Moreover, in making its decision, the Minister or Cabinet will be required to issue a written decision statement demonstrating that the Minister or Cabinet considered all of the factors listed above.
The consideration of the impacts of the Project on Aboriginal and Treaty rights is a positive development (albeit one that is already required by case law).
The minister or the GIC will be required to issue a decision statement within 30 or 90 days respectively, from end of the Impact Assessment.
Indigenous oversight and involvement
Under s. 114 Act, the minister, if authorized by regulations, may enter into agreements or arrangements with any Indigenous governing body to authorize that body to exercise powers or perform duties or function in relation to impact assessment under the act. “Indigenous governing body” is defined as “a council, government or other entity that is authorized to act on behalf of an Indigenous group, community or people that holds rights recognized and affirmed by section 35 of the Constitution Act, 1982.”
The Act also requires the Agency to create an “advisory committee” to advise it with respect to the interests and concerns of indigenous peoples, and this committee must include indigenous representation.
Cumulative Effects
Finally, while there are provisions that authorize the agency to conduct regional and strategic assessments to assess cumulative effects, this is not a mandatory requirement. Moreover, there is no requirement that these strategic or regional assessments consider the conditions that indigenous groups require in order to continue the exercise of Aboriginal and Treaty rights.
Canadian Energy Regulatory Act
This Act repeals the National Energy Board Act, and establishes the Canadian Energy Regulator (the “Regulator”) to replace the National Energy Board. The role of the Regulator is to regulate the exploitation, development and transportation of energy within federal jurisdiction. The Act will regulate a number of energy related project and infrastructure developments.
Provisions of Note
Section 57 allows the Regulator to establish committees or programs for the purpose of enhancing the involvement of the Indigenous peoples of Canada and Indigenous organizations in respect of pipelines, power lines and offshore renewable energy projects as well as abandoned pipelines. “Indigenous Organization” means an Indigenous governing body or any other entity that represents the interests of an Indigenous group and its members, so this could include the Committee.
Section 76 allows the Regulator to enter into arrangements with any government or Indigenous Organization to establish collaborative processes. However, it is not clear what “collaborative processes” means.
Section 77(1) allows the Minister (if regulations are made under s. 78) to enter into arrangements with Indigenous Governing Bodies for carrying out the purposes of the Act, and may authorize those bodies to exercise the powers or perform the duties and functions under the Act.
Fisheries Act
The amendments to the Fisheries Act restore the prohibition against “harmful alteration, disruption or destruction of fish habitat” protections to all fish and fish habitat, that had been previously removed. Moreover, protections have been restored to all fish habitat rather than habitats that are related to commercial, recreational or Aboriginal fisheries.
The provisions also give the minister greater authority to put in place targeted short-term measures to quickly respond to unforeseen threats to the management of fisheries and to the conservation of fish. The amendments empower the Governor in Council to make new regulations respecting the rebuilding of fish stocks and importation of fish as well as for the purposes of the conservation and protection of marine biodiversity.
Finally, the regulations allow for the establishment of an online registry with information about project decisions.
Provisions of Note
There is also a requirement that the minister in making a decision under the Act, consider the adverse effects that the decision may have on Aboriginal and Treaty rights. It also holds that indigenous traditional knowledge will inform habitat decisions and may inform other decision under the act.
Navigable Waters
This act has been renamed the Canadian Navigable Water Act, and it provides a comprehensive definition of navigable waters, which includes a body of water that is used as a means of transport or travel for Indigenous peoples of Canada exercising their Aboriginal and Treaty rights. The Act maintains the use of the term “work” however, rather than taking a broader approach that includes processes or actions that may affect navigable water such as water withdrawal and flow regulation.
It provides definitions of minor and major works and requires Ministerial approval for major works or scheduled works. In determining whether to issue such an approval, the Minister must consider a number of factors including indigenous traditional knowledge. It then sets out requirements that must be complied with for the construction of minor works.
Provisions of note
When making a decision under the Act, the Minister is required to consider any adverse effects that the decision may have on Aboriginal and Treaty rights.
Initial Considerations
Overall, there are some positive changes that promote the protection of Aboriginal and Treaty rights and inclusion of indigenous people in decision-making. Namely, the requirement that Aboriginal and Treaty rights be considered when making decisions under these acts, the ability of the Minister to enter into agreements or arrangements with any Indigenous governing body to authorize that body to exercise powers or perform duties or function in relation to impact assessment under the act, and the requirements that Indigenous Traditional Knowledge .
However in other respect, the changes do not go far enough, particularly in light of some of the recommendations that were put forward in the expert report. The new regime fails to make regional and strategic impact assessments mandatory. The act fails to include a definition of “public interest” thus allowing the minister to rationalize impacts to Aboriginal or Treaty rights and the environment in favour of economic development if it is in the “public interest”. The changes do not go far enough in terms of allowing for the delegation of authority to indigenous groups. And the shortened timelines may make it harder for indigenous groups to comply.
The government is now seeking feedback on consultation papers that it has published in relation to the following areas:
Consultation Paper on Approach to revising the Project List
- proposed criteria that will be used to revise the list of Projects that will subject to an Impact Assessment
- How often the Designated Project List should be reviewed
- The criteria use for assessing the nature of environmental effects
- The components that are required for the initial project description
Consultation Paper on Information Requirements and Time Management
- The components that are required for the initial project description
- The documents that the Agency will be required to provide if it is determined that an impact assess is required
- The circumstances in which the Minister could stop the clock for the legislated timelines during the impact assessment process
Comments on both discussion papers is due April 15th, and can be submitted through the following website: https://www.impactassessmentregulations.ca/