Significant changes to the federal environmental assessment (“EA” ) process introduced quietly in March, as part of Bill C-9, have now become law. These changes generated significant controversy, due to the means by which they were placed before Parliament. Buried within a massive budget bill and subject to a vote of confidence, consideration of the amendments was constrained, and debate and scrutiny was limited. Bill C-9 received Royal Assent on July 12, 2010.
Bill C-9 implements three key changes to the federal EA process. First, the Minister of the Environment has been give the authority to determine the scope of a project for the purpose of conducting an EA, and that authority may be delegated to the Responsible Authority. These amendments overrule a recent decision of the Supreme Court of Canada in Mining Watch Canada v. Canada (Fisheries and Oceans),  1 S.C.R. 6 (“Mining Watch”), which held that a Responsible Authority could not depart from the scope of project submitted by the project proponent for the purpose of carrying out an EA that was more limited in scope. (In Mining Watch, the Responsible Authority had attempted to carry out a screening in relation to a project that was subject to the Comprehensive Study List Regulations, by focusing on tailing ponds and excluding the related mine and mill. The Supreme Court ruled that this attempt to narrow the scope of the project was outside the Responsible Authority’s statutory powers.)
The second key amendment in Bill C-9 removes the authority to conduct Comprehensive Studies from Responsible Authorities, and centralizes it within the Canadian Environmental Assessment Agency (the “Agency”). This change does not apply where the Responsible Authority is the National Energy Board or the Nuclear Safety Commission. The Agency will exercise the powers and responsibilities of the RA until the Comprehensive Study is submitted to the Minister of the Environment pursuant to section 21.3 of CEAA.
Third, temporary exclusions from CEAA that had been granted on a time-limited basis to infrastructure projects have now been made permanent, with the exception that the Minister may require an EA if warranted. Projects that are funded from any of the following programs are exempt, as long as they are not carried out within a national park, park reserve, national historic site or historic canal: Building Canada: Modern Infrastructure for a Strong Canada; Canada Strategic Infrastructure Fund Act; funds referenced in the Budget Implementation Act, 2009, s. 300 and 303 and initiatives referenced at sections 309 – 315 of that Act; the Recreational Infrastructure Canada, Helping Municipalities Build Strong Communities, or Investments in First Nations Infrastructure Initiatives announced in Chapter 3 of Budget 2009; the Border Infrastructure Fund, the initiative administered by the Canadian Mortgage and Housing Corporation to provide funding for energy retrofits and renovation of social housing units, and the Municipal Rural Infrastructure Fund announced in Budget 2003.
For the full text of the amendments please see http://www2.parl.gc.ca/HousePublications/Publication.aspx?DocId=4649148&Language=e&Mode=1.