LEGISLATING CEAA 2012

OCTOBER 1, 2012

Overview

• CEAA Seven-year Review

• ENGO Engagement in Seven-year Review

• Industry Engagement in Seven-year Review

• Environment Committee Report

• Bill C-38

CEAA Seven -Year Review 2010 - 2012

CEAA (2003) s.32.(1) Within seven years after this Act receives royal assent, a comprehensive review of the provisions and operations of the Canadian Environmental Assessment Act shall be undertaken by such committee of the Senate, of the House of Commons . . . as may be designated . . . (2) The committee . . . shall, within a year after a review is undertaken . . . submit a report on the review to Parliament, including a statement of any changes that the committee recommends.

CEAA Seven -Year Review

• House of Commons Environment Committee initiates CEAA Seven-Year review in October 2011, issues report in March 2012

• Lack of clarity on process:– no public statement or notice of commencement of

review or schedule of hearings– initial meetings were supposedly to scope review,

some witnesses didn’t make substantive presentation – no public statement of scope or objectives of review

• No testimony from key participants (provinces except Saskatchewan), First Nations, Parks Canada, NEB, CNSC, Major Projects Management Office

• Regulatory Advisory Committee ignored

Changes to Federal Environmental Assessment Law 2009

• Amendments to the Navigable Waters Protection Act (eliminating many projects that impair navigation from federal EA)

• Amendments to Exclusion List Regulations under CEAA (excluding thousands of federal infrastructure projects from federal EA)

• Adaptation Regulations under CEAA (withdrawn in 2010 as result of Ecojustice/Sierra Club Canada litigation)

Changes to Federal Environmental Assessment Law 2010

• CEAA amendments:– Authorize Minister of Environment to scope large

projects into smaller constituent elements (thus partially reversing Supreme Court of Canada decision in Red Chris

– Exempt from environmental assessment a host of federally funded infrastructure projects by operation of statute; and

• Conduct of public panel reviews for pipeline and nuclear energy projects are delegated to National Energy Board and Canadian Nuclear Safety Commission, respectively, from Canadian Environmental Assessment Agency

ENGO Engagement in CEAA Seven-year Review

• Environmental Planning and Assessment Caucus RCEN

• West Coast Environmental Law, MiningWatch Canada, Ecojustice

Adopt sustainability as core objective

• EA legislation should be directed, at its core, to achieving specific and measurable sustainability goals and leaving a positive environmental and socio-economic legacy

Strengthen public participation

• Early and ongoing processes to meaningfully engage public in assessments of proposed projects or policies

• Include opportunities from initial identification of proposal to monitoring

• Funding that is provided for multi-faceted assistance to participants through independent body on early, ongoing basis

Meaningfully involve Aboriginal governments as decision makers

• Respect and accommodate Aboriginal and Treaty rights, including Aboriginal title

• Aboriginal rights-holders to have meaningful role in government-to-government decision making on resource development including EAs

Establish legal framework for Strategic EAs

• Strategic EA should systematically integrate environmental considerations into government planning and decision making processes relating to proposed policies, plans and programs

• Public records required to show how this integration has been carried out

Establish legal framework for regional EAs

• Conduct regional environmental assessments undertaken ahead of industrial development to help define– terms and requirements of subsequent

project assessments– provide baseline data and analysis for

subsequent assessments.

Employ multijurisdictional assessment, avoid substitution

• Execute harmonization agreements that allow for – predictable sharing of EA responsibilities

that follows the highest standards and best practices

– efficient administration of process among all affected governments, departments

Ensure transparency and access to information

• Access to all project information, including that not required by the assessor but produced by the proponent, should be readily accessible online

Make EA procedures more fair, predictable, and accessible

• An EA regime should have simplified processes and procedures, but must be justifiable in the public interest

• Clear rights of appeal

Industry Views on EA Reform (Mining Association of Canada)

• Objectives – Clear and predictable process with defined

timelines– One clear Responsible Authority– Coordinated consultations– Enforceable and robust outcomes

Industry Views on EA Reform (MAC)

• Satisfied with 2010 amendments

• Agency given authority to trigger and manage assessments

• Huge delay eliminated

• Fed/provincial processes synchronized

• Coordinated consultation possible

Protecting the Environment, Managing our Resources

• Report of the Standing Committee onEnvironment and Sustainable Development, March 2012

• NDP and Liberals issued separate dissenting reports

Single Federal Agency

Canadian Environmental Assessment Agency be made responsible for exercising powers and performing the duties and functions of the responsible authority unless another “best-placed regulator” — is better suited to perform the role of the responsible authority

Legislated Time Lines

Canadian Environmental Assessment Act be amended to enable or require, where appropriate, binding timelines for all environmental assessments

Improve Efficiency

• Decrease Duplication and Target Significant Projects– Coordination with Provincial Regimes– Target Projects of Environmental

Significance– Class Screenings and Use of Previously

Conducted EAs

Exemption for Provincial Regimes

Amend Canadian Environmental Assessment Act to empower Agency to determine that another jurisdiction’s environmental assessment process fulfils requirements of federal process, and therefore that that environmental assessment is equivalent to a CEAA EA

Target Projects of Environmental Significance

•Agency focus application of Canadian Environmental Assessment Act on projects of environmental significance

•Modify CEAA so that assessments under the Act are triggered via a project list instead of CEAA’s “all in unless excluded” approach

Enforcement

• Study alternative approaches for ensuring conditions and requirements stemming from environmental assessments are enforceable

• Introduce statutory changes necessary to implement its conclusions

Government Response

• Required by House of Commons

• Minimal formal Response to Committee Report

• Bill C-38 Omnibus Budget Bill tabled in House on March 29, 2012 was response

Bill C-38

• Included amendments to other environmental statutes, such as Fisheries Act

• Repealed Kyoto Protocol Implementation Act

• Referred to House of Commons Finance Committee

• Committee did not propose even one amendment to Bill C-38

Industry Concerns, Questions about Bill C-38 (MAC)

• Transition from CEAA to CEAA 2012

• Projects not subject to CEAA but are on Designated Projects List

• Substitution/Equivalency– Varied views

– Integration with federal permitting

• Regional Studies

• Enforceable Decision Statement

Bill C-38

• ENGO Black Out, Speak Out campaign www.blackoutspeakout.ca

• Bill C-38 passed by Parliament unamended on June 29, 2012

• Declared in force on July 6, 2012 together with Regulations Designating Physical Activities (virtually identical to Comprehensive Study List Regulations)

• Consultations on Revising Regulations

Comparing Legislative Processes CEAA vs. CEAA 2012

• CEAA took 6 years (including regulations) to design, legislate and develop; CEAA 2012 perhaps 3 years

• CEAA had broad supportive consensus; CEAA 2012 doesn’t

• CEAA is very complicated; CEAA 2012 not as complicated

• Democratic, multistakeholder approach vs. executive approach