Canada and BC have recently announced a new Memorandum of Understanding (“MOU”) that will govern their conduct in joint federal-provincial environmental assessments (“EAs”) of major projects. This MOU reflects one of the key objectives of the new Canadian Environmental Assessment Act, 2012 (“CEAA 2012”), which aims to “promote cooperation and coordinate action” between the two levels of government, and which contemplates the possibility of provincial EA processes standing in substitute for the federal one, in some cases.
In a previous bulletin, we outlined the key changes instituted by the enactment of the new CEAA 2012. In this bulletin, we discuss the recent MOU signed between Canada and BC, in a renewed effort to harmonize federal and provincial environmental assessments.
MOU Supplements Existing Federal-Provincial Agreement
The new MOU, signed on March 6, 2013, supplements an existing agreement between Canada and BC on the conduct of cooperative EAs (the “Agreement”). Although the previous Agreement expired in 2009, both governments continue to operate according to its terms. That Agreement sets out the mechanisms for determining which government body, the provincial Environmental Assessment Office (“EAO”) or the federal CEA Agency, would act as “Lead Party” responsible for administering the cooperative EA. Under the old Agreement, Canada and BC also committed to developing project-specific work plans for these cooperative EAs.
The recently signed MOU further advances the objective of eliminating duplication in the conduct of environmental assessments. In particular, the new MOU emphasizes the “substitution” of the provincial EA process for federal assessments. It also sets out a framework through which the federal government may delegate certain procedural aspects of its duty to consult affected Aboriginal peoples to the province.
Shift from Cooperation to Substitution
In comparing the previous Agreement to the new MOU, the most significant change is a change in focus from a cooperative EA process to a substituted one.
The new MOU implements CEAA 2012’s objective of substituting the provincial EA process for the federal one. Mirroring the requirements of the Act, the new MOU empowers the provincial EAO to request a substituted EA for a specific project, or for a class of designated projects. Provided the federal Minister is satisfied that the provincial process meets the requirements of CEAA 2012, the Minister must approve the request and the provincial EAO will conduct the EA. The MOU expressly acknowledges that in approving a request, the federal Minister may specify conditions to address federal jurisdictional interests, such as transboundary environmental effects and federal lands.
If the federal Minister refuses the EAO’s request for substitution, the MOU provides that the parties will discuss arrangements to conduct a cooperative assessment (pursuant to the Agreement) or a joint review panel, if the proposed project requires that level of EA review.
Delegation of Procedural Aspects of Aboriginal Consultation
Another significant development in the MOU pertains to Aboriginal consultation. Under the earlier Agreement, the parties simply agreed to coordinate and cooperate on Aboriginal participation. Under the new MOU, the parties have agreed to share and discuss information on Aboriginal consultation planning. The new MOU, however, goes further by providing that the federal Minister may procedurally delegate to BC the gathering of information from Aboriginal groups about the impact of the proposed project on potential or established Aboriginal or treaty rights, and ways to prevent, mitigate or otherwise address those impacts as appropriate. The MOU identifies specific delegable tasks as including:
- means of identifying Aboriginal groups to consult with;
- the nature of consultation;
- opportunities for federal departments to review and respond to issues raised by Aboriginal groups; and
- administrative mechanisms through which the Agency can provide funds to the EAO, which it will then make available to Aboriginal groups.
Movement towards Equivalency
Finally, in the MOU, Canada and BC agree to explore, at a later date, the implementation of equivalency, pursuant to section 37 of CEAA 2012. Section 37 contemplates the federal government delegating all decision-making power in environmental assessments to the province. That type of delegation goes beyond the procedural delegation currently provided for in the recent MOU.