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INTRODUCTION TO CANADIAN ENVIRONMENTAL ASSESSMENT ACT (2012) MARCH 19, 2013

INTRODUCTION TO CANADIAN ENVIRONMENTAL ASSESSMENT ACT (2012) MARCH 19, 2013. Overview CEAA 2012. Legislating CEAA 2012 Key Features Environmental Assessment Process Decision-making Follow-up Enforcement Implications of CEAA 2012. CEAA Seven -Year Review 2010 - 2012.

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INTRODUCTION TO CANADIAN ENVIRONMENTAL ASSESSMENT ACT (2012) MARCH 19, 2013

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  1. INTRODUCTION TO CANADIAN ENVIRONMENTAL ASSESSMENT ACT (2012) MARCH 19, 2013

  2. Overview CEAA 2012 • Legislating CEAA 2012 • Key Features Environmental Assessment Process • Decision-making • Follow-up • Enforcement • Implications of CEAA 2012

  3. CEAA Seven -Year Review 2010 - 2012 CEAA (2003) s.32.(1) Within seven years after this Act receives royal assent, a comprehensive review of the provisions and operations of the Canadian Environmental Assessment Act shall be undertaken by such committee of the Senate, of the House of Commons . . . as may be designated . . . (2) The committee . . . shall, within a year after a review is undertaken . . . submit a report on the review to Parliament, including a statement of any changes that the committee recommends.

  4. CEAA Seven -Year Review • House of Commons Environment Committee initiates CEAA Seven-Year review in October 2011, issues report in March 2012 • Lack of clarity on process: • no public statement or notice of commencement of review or schedule of hearings • initial meetings were supposedly to scope review, some witnesses didn’t make substantive presentation • no public statement of scope or objectives of review • No testimony from key participants (provinces except Saskatchewan), First Nations, Parks Canada, NEB, CNSC, Major Projects Management Office • Regulatory Advisory Committee ignored

  5. Report of House Environment Committee - March 2012 • Recommendations • Single Federal Agency • Legislated Timelines • Improve Efficiency • Exemption for Provincial Regimes • Target Projects of Environmental Significance • Enforcement • NDP/Liberals issued dissenting reports

  6. Bill C-38 Omnibus Budget Bill 2012 • Repealed CEAA, enacted CEAA 2012 • Included amendments to other statutes, such as Fisheries Act • Repealed Kyoto Protocol Implementation Act • Referred to House of Commons Finance Committee • Committee did not propose even one amendment to Bill C-38

  7. Bill C-38 • ENGO Black Out, Speak Out campaign www.blackoutspeakout.ca • Bill C-38 passed by Parliament unamended on June 29, 2012 • Declared in force on July 6, 2012 together with Regulations Designating Physical Activities

  8. Comparing Legislative Processes CEAA vs. CEAA 2012 • CEAA took 6 years (including regulations) to design, legislate and develop; CEAA 2012, 6 months • CEAA had broad supportive consensus; CEAA 2012 doesn’t • Both CEAA and CEAA 2012, but CEAA 2012 replete with drafting problems • Democratic, multistakeholder approach vs. executive approach

  9. CEAA 2012 Key Features • No legal requirement to undertake EAs • Dramatic reduction in number of EAs • Constraints on public participation • Centralization of Federal EA Administration • Legislated timelines • Substitution by provincial EA processes • Exemption of substituted projects (equivalency)

  10. No Legal Requirement to Undertake Eas (Almost) • Under CEAA 2012, only projects designated by regulation or Ministerial order subject to EA • Designated projects will not necessarily be assessed: s. 10(b) CEA Agency has discretion to decide no EA required • NEB, CNSC projects must be assessed • Result: politicization of decision-making on triggering EAs

  11. Dramatic Reduction in Number of Federal EAs • Number of federal EAs has plumetted: • 5000 screenings, comprehensive studies and panel reviews under CEAA (2008) • 14 standard EAs, 0 panels initiated, 9 in screening process, under CEAA 2012 (July 6, 2012 - Feb 22, 2013) • Projects no longer being assessed: • National Parks, federally funded, most permit–triggered (Fisheries Act, Navigable Water Protection Act)

  12. Regulations Designating Physical Activities S.84.(a) • Only projects included in Regulations are subject to CEAA 2012 • Examples include: • Mines with production higher than specified thresholds • Nuclear facilities • Pipelines longer than 75 km, larger oil and gas facilities, oil sands processing facilities • Oil sands mines but not in situ facilities

  13. Constraints on Public Participation • Public participation narrowed to "interested parties", persons "directly affected by the carrying out of the Project" or having "relevant information or expertise“ • “Interested party” determinations to be made by CEAA panels, NEB, CNSC • Result: limited uneven public participation, law suits

  14. Interested Party Definition S. 2.(2) • Why put this provision into CEAA 2012? • “One of the “following entities”? • “Directly affected by the carrying out of the project”? • “Has relevant information or experience” • How broad is the discretion inherent in “In the opinion of”? • Why define “interested party” in s.2.(1) as well?

  15. Centralization of EA Administration S.14 • “Self-assessment” approach by federal departments abandoned • Federal EAs to be carried out by: • CEA Agency • National Energy Board (pipeline projects, offshore oil and gas development) • Canadian Nuclear Safety Commission (nuclear power projects) • Result: Streamlining

  16. Legislated Timelines S.54 • Legislated timelines (defined through regulation) for federal EAs where the Agency is responsible authority and for all review panels • Environment Minister may terminate review panel if timelines not being met; Agency then completes review

  17. Substitution by Provincial EA Processes SS.32-36 • Mandatory if province requests substitution, Minister of opinion process is “appropriate substitute” (s. 32, 34) • Include consideration of s. 19(1) factors • Public has opportunity to participate • Public has access to records to allow meaningful participation • Report submitted to RA and publicly available

  18. Substitution by Provincial EA Processes SS.32-36 • Individual/class of designated projects • Not for panel or NEB/CNSC reviews • Approved process deemed to meet CEAA 2012 EA requirements • RA/Minister makes project decision based on substitute process report • March 15 Report of CAN – BC Substitution Agreement

  19. Exemption of Substituted Projects (Equivalency) • Cabinet may exempt a designated project from CEAA 2012 if provincial process is equivalent (s.37) • Provincial process first approved for substitution • Province must identify significant adverse effects, ensure mitigation • No link to federal decision-making

  20. CEAA 2012 PROCESS

  21. CEAA 2012 Designated Project Definition S. 2.(1) • Doesn’t apply to projects outside Canada • Includes any physical activity that is incidental to those physical activities • What does “incidental” mean? • Application of CEAA scope of project cases such as Red Chris?

  22. Purposes S. 4 • (a) “protect the components of the environment that are within the legislative authority of Parliament from significant adverse environmental effects caused by a designated project” • “Protect” stronger than verbs in CEAA purposes? Connotes a positive duty? • Components of the environment? S.2.(1) defines environment as “components of the Earth”?

  23. Purposes S. 4 • Some “components of the environment” set out in s. 5.(1)(a) • S.5.(3) Governor in Council may amend Schedule 2 “Components of the environment” to add or remove components of the environment

  24. Purposes S. 4 • (b) similar to CEAA s.4.(a) “careful and precautionary manner” • (e) “opportunities for meaningful public participation” (but not timely?) • (g) “ensure that projects . . . to be carried out on federal lands . . . are considered in a careful and precautionary manner so as to avoid significant adverse environmental effects”

  25. Environmental Effects S. 5.(1) • (1) “in relation to an act or thing, a physical activity, a designated project or a project” • (1)(a) components of the earth include fish, aquatic species at risk, migratory birds, other component on Schedule 2 • (1)(b) “a change that may be caused to the environment that would occur (i) on federal lands” (ii) another province or (iii) outside Canada

  26. Environmental Effects S. 5.(2) • (2) Other environmental effects to be taken into account where federal authority required “to exercise a power or perform a duty or function conferred on it” under another statute • (a) a change “that is directly linked or necessarily incidental to a federal authority’s exercise of a duty or function” permitting the carrying out of that physical activity

  27. Environmental Effects S. 5.(2) • (b) “an effect . . . of any change . . . on” (i) health and socio-economic conditions, (ii) physical and cultural heritage, or (iii) historical, archaeological structures etc.

  28. Project Decision-making • Determination as to likely significant adverse environmental effects s.5.(1), (2) remains key • Determination made by Minister (for EAs and panel reviews) • If significant adverse effects determination, Cabinet determines whether those effects are justified in the circumstances

  29. Project Decision-making • What does significance mean? • What does justified in the circumstances mean?

  30. Determinations of “Significance”Reference Guide 1994 • Only effects that are both likely and adverse can be considered • Includes mitigation measures • Factors include: • Magnitude • Geographic Extent • Duration and Frequency • Reversibility • Ecological Context

  31. Justified in the Circumstances • Projects rarely are determined to have significant adverse environmental effects • Result – decision-makers rarely called upon to justify project “in the circumstances” • Project that makes net positive contribution to sustainability may be justified even if significant adverse environmental effects

  32. Project Decision-making • Decision Statement required to be issued by decision-maker to proponent within 24 months after referral to panel review s. 54.(1) • Decision Statement must be made public, include conditions for mitigation measures, follow-up programs s.54.(1) • Decision Statement to refer to significance, justify significant effects, set approval conditions

  33. Project Decision-making • RA/Minister then determines conditions for project approval not Cabinet • Conditions limited to those “directly linked or necessarily incidental to the exercise of a power or performance of a duty or function by a federal authority

  34. Project Decision-making • In case of an equivalency finding under section 37 with respect to a provincial EA process • no federal project decision under CEAA 2012 • no requirement to consider results of the equivalent provincial EA process (may still be federal regulatory decisions) • Results of provincial EA may not be available for federal decision-making

  35. Significance and Sustainability • CEAA 2012 limits decision-making to determinations of significance of adverse environmental effects, mitigation, justification (unlike CEAA) • Shouldn’t assessment be informing decision makers about broader contribution of project to sustainability (whether net positive or net negative)?

  36. Follow-up Programs • “A program for (a) verifying the accuracy of the environmental assessment of a project, and (b) determining the effectiveness of any mitigation measures” s.2.(1) • Not used for compliance purposes • Don’t require that proponents/regulators to adjust mitigation measures in case of serious unanticipated effects

  37. Follow-up Programs • Requirements of follow-up program mandatory factor for EAs s.19.(1)(e) • Review panels required to include follow-up program in report s. 43.(1)(d) • Results may be used for implementing adaptive management measures or improving quality of future EAs

  38. Failure to Learn from EAs, Follow-up Program • Failure to learn and apply lessons learned from EAs to achieve better predictions of effects and better mitigation measures is perhaps the biggest failure of CEAA • Follow-up programs are rarely serious, rarely affect project operation beyond early post-approval stage • How can follow-up programs work if proponents not required to disclose data?

  39. Ekati Diamond Mine (BHP Billiton)

  40. Ekati Diamond Mine (BHP Billiton)

  41. Independent Environmental Monitoring Agency • Public watchdog for environmental management of NWT Ekati Diamond Mine • Established under 1997 agreement that followed on 1996 NWT Diamonds Mine Project Review Panel recommendations • Agreement is legal instrument to ensure BHPB, governments respect/protect land, water, wildlife, way of life essential to well-being of Aboriginal Peoples • www.monitoringagency.net

  42. Independent Environmental Monitoring Agency • Compiles environmental information using indicators such as water quality • Publishes annual monitoring reports since 1999-2000 as well as newsletters • Recommends changes to environmental management regime, and is now advising on mine closure plan

  43. Enforcement and Compliance • CEAA: Few legal tools for compliance • Judicial review was key tool, no appeals • Self-assessment approach for screenings resulted in highly fragmented approach and minimal quality control • CEAA 2012: better tools for compliance

  44. Enforcement and Compliance • Any federal decision can be challenged if it relied on a legally deficient EA (Cheviot case) • EA report can be challenged for legal deficiencies even if no federal decision yet (Cheviot case) • Scoping decisions are subject to judicial review (Citizens Mining Council case) program

  45. Prohibitions S. 6 “The proponent of a designated project must not do any act or thing in connection with the carrying out of the designated project . . . if that act or thing may cause an environmental effect unless” • Agency decision • Proponent complies with “conditions included in decision statement • CEAA – no prohibition sections

  46. Offence for Violating S.6 Prohibitions S. 99.(1) “Any proponent who contravenes section 6 is guilty of an offence punishable on summary conviction and is liable, for a first offence, to a fine of not more than $200,000 and for any subsequent offence, to a fine of not more than $400,000”

  47. Prohibitions S. 7 “A federal authority must not exercise any power or perform any duty . . . that would permit a designated project to be carried out” unless • Agency decision • Decision statement “indicates that the designated project is not likely to cause significant adverse environmental effects . . .”

  48. Injunctions S.96 Minister may apply for, and competent court may grant injunction if a “person has done, is about to do, or is likely to do any act constituting or directed toward the commission of an offence under section 99”

  49. CEAA 2012 – Justifiable under Federal Criminal Law Power? • S. 6 and 7 Prohibitions • SS. 89 – 102 Administration and Enforcement powers (appointment and powers of enforcement officers, warrants, order, offences penalties) • Provide basis for validating CEAA 2012 as valid federal legislation pursuant to federal criminal law power under s. 91 Constitution Act?

  50. IMPLICATIONS • Federal EA process politicized • Federal EA activity reduced by order of magnitude or more • Opportunities to influence federal environmental assessment process expanded • Substitution and exemption features further weaken federal EA role, and fragment EA across Canada

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