On April 12, 2013, the Canadian Environmental Assessment Agency (the Agency) issued a public notice regarding proposed amendments to the Regulations Designating Physical Activities (Project List). The Regulations amending the Regulations Designating Physical Activities were published in Part I of the Canada Gazette on April 20, 2013 for a 30 day public comment period.

The Regulations Designating Physical Activities(Regulations) prescribe the physical activities that constitute a “designated project” which may require an environmental assessment to be conducted by the Agency, the Canadian Nuclear Safety Commission (CNSC) or the National Energy Board (NEB), as provided for under the new Canadian Environmental Assessment Act2 (2012) (CEAA) rules.

Apart from a few definitions that are to be repealed, amended or added, together with clarification that the facilities covered are “new” facilities, it is proposed that a number of activities be added to or removed from the list of designated physical activities or their descriptions changed. The resulting list of projects subject to the CEAA will look quite different from the one that has applied since the CEAA came into force on July 6, 2012.

Physical activities to be added to the Regulations

The following are among the activities that will become subject to the CEAA if the proposed amendments are adopted:

  • Diamond and apatite mines;
  • Railway yards with seven sidings or more;
  • International and interprovincial bridges and tunnels and bridges that cross the St. Lawrence Seaway;
  • The first offshore exploratory wells in exploration licence areas;
  • Expansions to oil sands mines.

Physical activities whose descriptions will be changed

It is also proposed that the descriptions, and in particular the trigger thresholds, of a number of physical activities be modified. For example, in the case of mine expansion projects that are subject to the CEAA, the area of disturbance of an expansion project will now be an additional determining factor, rather than the production capacity of the mine operations alone. Such expansions will only be subject to the CEAA if they will result in the area of disturbance of a mine being increased by 50% or more.

The rules for all projects referred to as “expansions” will be amended to reflect a consistent approach. Accordingly, any project that entails an increase of 50% or more in a facility’s size or production capacity and that will result in the size or scale of the facility reaching or exceeding a threshold determined by the Regulations will qualify as an expansion subject to the CEAA.

Rare earth element mines, which until now have been included in the general category for metal mines, will now be grouped together with gold mines, making them subject to the CEAA starting at a production capacity of 600 tonnes per day or more. The new threshold, lower than the one for metal mines, corresponds more closely to the reality associated with this type of mine.

Tidal power generating facilities that are subject to the CEAA will now include in-stream tidal power generating facilities with a production capacity of 50 MW or more. The current threshold of 5 MW for other types of tidal power generating facilities such as tidal dams will be maintained.

As far as National Defence activities are concerned, activities including expansions of existing buildings on a military base or station will be taken off the list, expansions of military bases or stations will now be covered only if they represent an increase in area of 50% or more, and facilities established for a period of less than twelve consecutive months will be excluded.

The list of CNSC-regulated activities will be updated to reflect the CNSC’s current licensing practices, to include nuclear reactors of all types and to provide clarification with respect to certain activities subject to the CNSC’s control and oversight.

The list of NEB-regulated activities related to pipelines will be amended to better align with the requirements of the NEB’s regulatory process. Among other things, the application threshold for pipelines will be reduced from 75 km on new right-of-way to 40 km of new pipe whether or not it is on new right-of-way.

Physical activities to be removed from the Regulations

Among the types of projects that will be removed from the Regulations are:

  • Ground water extraction facilities;
  • Heavy oil or oil sands processing facilities;
  • Pipelines and electric transmission lines not regulated by the NEB;
  • Potash mines and other industrial mineral mines (salt, graphite, gypsum, magnesite, limestone, clay, asbestos);
  • The following industrial facilities: pulp and paper mills, steel mills, metal smelters, leather tanneries, textile mills and facilities for the manufacture of chemicals, pharmaceuticals, pressure-treated wood, particle-board and plywood, chemical explosives, lead-acid batteries and respirable natural mineral fibres.

When we compare the new list of physical activities subject to the CEAA with the list of projects subject to the environmental impact assessment and review procedure under Quebec’s Environment Quality Act,we see that there are more project types subject to an environmental assessment on the Quebec list and the application thresholds are generally lower. On the other hand, the CEAA list covers a number of physical activities that fall within the constitutional jurisdiction of the federal government, such as military activities and nuclear activities, as well as more projects involving expansions of industrial facilities than the Quebec list does.