• The Federal Government’s Plan to Overhaul Environmental Assessment
  • May 1, 2012 | Author: Patrick Garon-Sayegh
  • Law Firm: Miller Thomson LLP - Montreal Office
  • On April 17th, the Minister of Natural Resources announced the Harper Government’s plan to streamline the environmental assessment process for major economic projects.

    According to the Government, more then 500 projects representing $500 billion in new investments will be proposed across Canada in the next 10 years, and it is against this backdrop that the “Responsible Resource Development” plan was announced.

    The plan contains a series of measures centered on four themes: (1) making the review process more predictable and timely, (2) reducing duplication in the review process, (3) strengthening environmental protection and (4) enhancing consultations with aboriginal peoples.

    Ultimately, the Government aims to create a system of “one project, one review, in a clearly defined time period”. The goal is to facilitate and encourage investment in major projects across the country, while making smaller projects easier and less expensive to execute.

    What follows are a few examples of the measures found under each of the plan’s four themes.

    (1) Making reviews more predictable and timely:

    • Simplifying the current assessment structure and replacing it with two kinds of reviews: standard environmental assessment, or review panel;

    • Setting specific timelines for hearings and assessments: 24 months for panel reviews, 18 months for National Energy Board hearings and 12 months for standard environmental assessments;

    • Enacting legally binding timelines for regulatory permitting processes, namely those under the Fisheries Act, the Species at Risk Act, the Navigable Waters Protection Act, the Canadian Environmental Protection Act, and the Nuclear Safety and Control Act;

    • Decisions by the Canadian Environmental Assessment Agency as to whether or not a federal environmental assessment is required will be made within 45 days.

    (2) Reducing duplication in the review process:

    • Allowing provincial environmental assessments that meet the requirements of the Canadian Environmental Assessment Act to replace federal assessments;

    • Enabling equivalencies between Fisheries Act regulations and provincial regulations;

    • Reducing the number of departments and agencies responsible for environmental assessments (currently more than 40) to three responsible authorities: the Canadian Environmental Assessment Agency, the National Energy Board and the Canadian Nuclear Safety Commission;

    • Eliminating the requirement of joint review panels for projects regulated by the National Energy Board and the Canadian Nuclear Safety Commission.

    (3) Strengthening environmental protection

    • Focusing on major projects that represent a greater risk to the environment;

    • Introducing enforceable environmental assessment decision statements and providing federal inspectors with the authority to examine whether or not the conditions of a decision statement are being met;

    • Imposing administrative monetary penalties for violations of the Canadian Environmental Assessment Act, the Nuclear Safety and Control Act and the National Energy Board Act.

    (4) Enhancing consultations with aboriginal peoples

    • Integrating Aboriginal consultations more fully into the new environmental assessment and regulatory processes;

    • Funding consultations with Aboriginal people and establishing consultation protocols or agreements with Aboriginal groups.

    A substantial part of these measures will be implemented as part of the 2012 federal budget. The Government has just tabled Bill C-38, An Act to Implement Certain Provisions of the Budget Tabled in Parliament on March 29, 2012 and Other Measures, also titled the Jobs, Growth and Long-term Prosperity Act.

    This Bill completely replaces the Canadian Environmental Assessment Act by enacting the Canadian Environmental Assessment Act, 2012. The Bill also amends the National Energy Board Act, the Canada Oil and Gas Operations Act, the Nuclear Safety and Control Act, the Fisheries Act, the Canadian Environmental Protection Act, 1999, and the Species at Risk Act.