Reform of federal environmental assessment law
Bill C–38, the budget implementation legislation known as the Jobs, Growth and Long-term Prosperity Act, received royal assent on June 29, 2012. Legislative changes which will have significant consequences for the federal environmental assessment (EA) regime and the federal framework of environmental regulation have thus occurred. These changes are essentially designed to restrict the scope of federal intervention, to reduce the number of decision makers and to avoid regulatory duplication. This new federal legislation is an important shift from the framework that existed up to this time.1
On July 6, 2012, The Canadian Environmental Assessment Act (CEAA)2 was repealed and replaced by the Canadian Environmental Assessment Act, 2012 (CEAA, 2012). Three regulations associated with its implementation have also come into force and were published in the Canada Gazette, Part II, on July 18, 2012. These are the regulations designating physical activities, prescribing information for the description of a designated project and dealing with cost recovery. This bulletin outlines the features of these regulations.
It should be noted that the controversial amendments made to the Fisheries Act are not yet in effect.
Regulations Designating Physical Activities (SOR/2012-147)
There are no more federal EA triggering provisions in various federal laws. Under the CEAA, 2012, the only triggering mechanism is the project itself so that only “designated projects” listed in the regulations are now subject to federal EA, under the auspices of the Canadian Environmental Assessment Agency (the Agency), the Canadian Nuclear Safety Commission or the National Energy Board, as the case may be. The list of designated physical activities incorporated in the new regulations is almost identical to the list in the old Comprehensive Study List Regulations, except for minor revisions and the removal of activities in national parks and reserves.
It should be noted that, compared to the 2,941 projects which were listed in the registry of the Agency as of a few weeks ago, only 70 projects remain on the registry today. Sixteen additional projects were specifically designated by the Minister to become subject to a federal EA.
Prescribed Information for the Description of a Designated Project Regulations (SOR/2012 148)
Information to include in the description of a designated project include, among other things:
- General information, including the name, the nature and the proposed location of the project, the proponent’s name and contact information as well as the name and contact information of its primary representative, the description and results of any consultations undertaken and other relevant information
- Project information, including a description of the project’s context and objectives, the physical works, all activities to be performed in relation to the project, any hazardous waste which will likely be generated, the timelines of the various phases of the project, and the anticipated production capacity
- Information on the location of the project, including its geographic coordinates, the site plans, the legal description of the land to be used, the presence of any residences, Indian reservations, traditional lands or federal lands;
- Any federal involvement, including the description of any federal financial support, federal lands that may be used and applicable federal legislative and regulatory requirements; and
- The environmental effects, including the description of the physical and biological setting, any changes that may be caused to fish, aquatic species or migratory birds, any changes to the environment that may occur on federal lands in a province other than the province in which the project is proposed to be carried out or outside Canada, any effects on Aboriginal peoples, the natural and cultural heritage or any thing that is of historical, archeological, paleontological or architectural significance.
Cost Recovery Regulations (SOR/2012-146)
If there is a federal EA, the proponent of a designated project must pay to the Agency the following costs:
- Services provided by a third party (travel, publication and printing, distribution services, telecommunications, advertising, public meeting and panel hearing facilities and equipment);
- Amounts related to the exercise of the Agency’s responsibilities (federal government employees’ salaries, benefit plans and travel expenses); and
- Amounts related to the exercise of the responsibilities of members of a review panel (remuneration and travel expenses of review panel members).
Finally, it should be mentioned that pursuant to the CEAA, 2012 non-compliance with mandatory federal EA requirements or with the conditions included in a decision statement is now a penal offence punishable by a fine of up to $400,000.