The controversial Bill C-69 was passed into law on June 21, 2019, and published in the Canada Gazette on July 6, 2019. This represents a significant step in the federal government’s efforts to overhaul the environmental assessment process.
We discussed the federal government’s overhaul of the environmental assessment process in previous blog posts:
- Minister Releases Report on Environmental Assessment Process Review
- Federal Government Proposes Changes to Environmental and Regulatory Reviews
In brief, the Prime Minister’s mandate letter to the Minister of Environment and Climate Change (Minister) directed her to immediately review Canada’s environmental assessment processes. In August 2016, the Minister appointed an expert panel to engage with Canadians and provide recommendations for improving the federal environmental assessment processes. In April 2017, the expert panel released its report, recommending that the environmental assessment process move from a focus on the biophysical environment to a broader impacts assessment.
In February 2018, the Minister introduced Bill C-69. The Senate proposed an unprecedented 188 amendments to Bill C-69. Ultimately, the House of Commons accepted 99 amendments (62 as written and 37 with amendments). On June 21, 2019, Bill C-69 was passed into law.
Among other things, Bill C-69 repeals the Canadian Environmental Assessment Act, 2012 (CEAA 2012) and replaces it with the Impact Assessment Act.
We discussed the main features of the Impact Assessment Act in a previous blog post:
Amendments to the Impact Assessment Act
The amendments ultimately accepted by the House of Commons primarily relate to a few key areas:
- Significance: Bill C-69 proposed to replace the CEAA 2012 “significant adverse environmental effects” test with a broader “public interest” test. The amendments retain a consideration of the “significance” of effects; however, it remains only one factor in the public interest assessment.
- Impact Assessment Agency’s powers with respect to time limits: The amendments remove some of the Minister’s power to extend time limits and award those same powers to the Impact Assessment Agency.
- Impact Assessment Agency’s recommendations: The Impact Assessment Agency is required to provide the Minister with recommendations for conditions to address any effects identified in a review panel report.
- Indigenous consent: An affected Indigenous community can consent to non-adverse changes to its health, social or economic conditions.
- Exclusion by regional assessment: The Minister has the power to exclude prescribed designated projects if a regional assessment has been completed.
Despite having been passed into law, the full extent of the Impact Assessment Act’s application remains to be seen. In May 2019, the federal government released a discussion paper regarding the proposed Project List, i.e. the physical activities that will trigger the application of the IAA. No draft regulations have been proposed.
In addition, under CEAA 2012, many of the details with respect to environmental assessments appeared in Operational Policy Statements, Technical Guidance and Reference Guides. To date, the federal government has issued a draft Practitioner’s Guide to Federal Impact Assessments under the Impact Assessment Act. The Practitioner’s Guide is largely a skeleton outline, but presently contains details with respect to gender-based analysis and the assessment of a project’s contribution to sustainability.