introduction canadian environmental assessment act ceaa february 16 2012 n.
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  2. Overview • Legislating CEAA: Policy and Politics • Introduction to CEAA • Purposes • Projects • Federal and Responsible Authorities • Triggers • Categories of EAs • Scoping the Project and the Assessment

  3. Legislating CEAA: Policy and Politics • First, get their attention (Rafferty-Alameda and Oldman cases) • Identify clear problem for government requiring legislation as key policy solution • Work closely with inside champions (Ray Robinson, FEARO) • Build public support and line up allies (EA Caucus of RCEN) • Neutralize bureaucratic and provincial opposition

  4. Purposes S.4(1) • Ensures projects considered in careful and precautionary manner to ensure projects do not cause significant adverse environmental effects • Encourage actions to promote sustainable development • Eliminate unnecessary duplication • Promote fed – prov cooperation and coordinated action

  5. Purposes S.4(1) • Promote communication and cooperation with Aboriginal peoples • Ensure projects do not cause extra-jurisdictional significant adverse environmental effects • Ensure opportunities for timely and meaningful public participation throughout EA process

  6. Definitions S.2.(1) • Environmental assessment • assessment of the environmental effects of a project conducted under CEAA • Environment • Land, water, air, atmosphere • All organic, inorganic matter, organisms • Interacting natural ecosystems

  7. Definitions S.2.(1) • Environmental effects • Change project causes in environment • Any effect of such change on health, socio-economic conditions, heritage, uses of lands for traditional purposes by aboriginal persons • Change to project caused by environment

  8. Does the Act Apply?

  9. Is there a Project? S. 2.(1) A project is either: • Undertaking (e.g., construction, operation, modification, abandonment) in relation to a physical work • Physical activity not relating to a physical work described in the Inclusion List Regulations (e.g., flying a supersonic aircraft)

  10. Is the Project Excluded? S.7 • Listed on Exclusion List Regulations/ Schedule (e.g., maintain physical work) • National emergency for which special temporary measures are being taken under the Emergencies Act • Emergency, and project will prevent damage to property, environment or in interest of public health or safety; • Funding but essential details not known

  11. Is there a Federal Authority? S.2(1) • A federal body such as a Minister, department, agency or parent Crown corporation. • Federal authority definition refers to Federal Authorities Regulations and to schedules I and II of Financial Administration Act

  12. Is there a Trigger? S.5 • Federal authority exercises a duty, power or function in relation to a project: • Proposes a project as its proponent • Provides financial assistance to proponent to enable project to be carried out • Disposes of interest in land to enable a project to be carried out • Exercises regulatory function in relation to a project listed in Law List Regulations

  13. Categories of EAs • Screenings • Comprehensive Studies • Panel Reviews • Mediations

  14. Screenings S. 18 • Public participation is unusual • Responsible authority ensures screening is carried out, report prepared, information on electronic registry • RA determines if follow-up program necessary

  15. Screenings S. 18 • Projects subject to CEAA subject to screening unless comprehensive study or referred to panel review or mediation • Screenings - vast majority of CEAA EAs • Identify/document environmental effects and significance, determine mitigation measures, recommend panel/mediation • Vary in time, length, depth of analysis

  16. Model Class Screenings S. 19 • Generic assessment of all projects within a class, declared by Agency • RA uses information contained in model report, prepares individual screening reports for projects within class to account for location-specific or project-specific information. • Information is accessible on registry

  17. Replacement Class Screenings S. 19 • Provides a generic assessment of all projects within a class, declared by Agency • No location-specific or project-specific information, so RA does not prepare screening reports • Statement of projects listed on the registry

  18. Comprehensive Studies S.21 • Projects listed on Comprehensive Study List Regulations • Larger projects having potential for significant or that may generate public concerns (e.g., mines, oil and gas projects, nuclear facilities) • Public participation and follow-up program mandatory

  19. Comprehensive Studies S. 21 • Agency conducts comprehensive studies, except NEB and CNSC projects • Agency coordinates with departments, provinces, ensures public participation • Required to produce comprehensive study report (CSR) with 365 days • Minister issues decision statement on significance, mitigation and follow-up

  20. Panel Reviews SS. 25, 28, 33 - 36 • Group of experts appointed by Minister based on knowledge and expertise on referral from RA or at his/her discretion • Appointed to assess, impartially, objectively project with likely significant adverse environmental effects, or where public concerns warrant • Recommendations submitted to Minister and RA

  21. Panel Reviews SS. 25, 28, 33 - 36 • Hearings held with evidence presented by proponent (Environmental Impact Statement) and members of public, with opportunities for questioning • Review panel reports made public • Funding made available to participants • Joint review panels established with provincial/federal agencies s.40

  22. Mediations SS. 29 - 30 • Voluntary process of negotiation in which an independent and impartial mediator helps resolve project issues • Interested parties must be identified and indicate willingness to participate • Mediator appointed by Minister • Mediator submits report, made public • No mediation yet under CEAA

  23. Scoping the Project and the Assessment • Scoping includes: • Determining the scope of the project S. 15 • Determining the scope of the assessment S. 16 (Factors to be considered) r

  24. Scoping the Project S. 15 • Responsible authority determines project scope for screenings, Minister for panel reviews s. 15.(1) • Two or more projects can be reviewed as single project in discretion of RA/Minister s.15.(2) • All undertakings likely to be carried out in relation to physical work to be assessed s.15(3)

  25. Project Scoping Issues Is the scope of the project: • As the proponent proposed? • Limited to the undertaking or physical activity that triggered the Act? • Limited to that triggering undertaking plus other undertakings, activities or physical works?

  26. Project Scoping Issues • What is the degree and nature of the discretion afforded to RA and Minister to determine project scope? • What is the relationship between s.15.(1) and s. 15.(3)?

  27. Scoping the Assessment S. 16 • Once project scoped, assessment scoped under s. 16 • S.16.(1) mandatory factors: environ. effects, malfunctions, accidents, cumulative effects, significance, public comments, mitigation • S.16.(2) mandatory factors (except screenings): purpose, need, alternative means, follow-up, capacity of renewable resources to meet needs

  28. Scoping Cases • Sunpine (Friends of the West Country, 1999) • True North (Prairie Acid Rain Coalition, 2006) • Red Chris (Miningwatch Canada, 2011)

  29. Sunpine • Application for NWPA permit for two bridges associated with logging road and forest cutting operations • Does s.15.(3) require RA include road and forest cutting within scoped project? • Gibson J. (FCTD) applied “independent utility test”: bridges have no indep. utility • S. 15.(3) mandatory all undertakings in relation to physical work (the bridges) to be included

  30. Sunpine • Federal Court of Appeal reversed, rejecting “independent utility test” • Applied “life-cycle test” only those undertakings relating to the life-cycle of the physical work (such as operation, abandonment of bridge) not others • But why does s. 15.(3) use “in relation to” rather than “of”?

  31. True North • Oil sands project (already provincially approved) required Fisheries Act authorization because Bragg Creek was proposed to be destroyed • Project scoped as “river destruction project” not “oil sands project” by DFO • If scoped as oil sands project, comprehensive study triggered

  32. True North • DFO - “scope of the project should be limited to those elements over which the federal government can assert authority” • FCA – DFO’s decision to scope the project as river destruction reasonable • Responsible authorities have broad discretion to scope project • But scope not limited to matters within federal jurisdiction

  33. Red Chris • Proposed B.C. copper and gold mine application for B.C. and Fisheries Act approvals • DFO initially scoped project as mine and mill project requiring comprehensive study, later as stream destruction screening

  34. Red Chris • SCC – CEAA requires that EA track be determined as per project as proposed • Generally not open to responsible authority to change that level, reduce the scope of the project • “Project” in s. 21 of the CEAA means “project as proposed” by the proponent, not “project as scoped” (former is consistent with definition of “project”)

  35. Red Chris • Where project as proposed is listed in the CSL, the requirements in s. 21 are mandatory • Tracking and scoping are distinct steps • No discretion with respect to assessment track, RA has discretion to determine the scope of the project for the purposes of assessment under s. 15(1)(a) of the CEAA