BUSINESS LAW

Changes to Federal Environmental Assessment and Regulatory Legislation

EnviroTech Regulatory Workshop

April 3, 2018

Shailaz Dhalla

Why are we here today?

• February 6, 2018 - Bill C-68, An Act to amend the Fisheries Act …

• February 8, 2018 - Bill C-69, An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigation Protection Act …

Why are we here continued…

• October 2015 – Federal Election Liberals and the end of the Harper-Era

• January 2016 – Interim principles for major projects

• June 2016 -- Government of Canada review:

− Fisheries Act – (Feb. 2017; Standing Committee)

− Navigation Protection Act – (March 2017; Standing Committee)

− CEAA, 2012 – (April 2017; Expert Panel)

− National Energy Board Act – (May 2017; Expert Panel)

So What Will Change?

1. CEAA, 2012 Impact Assessment Act

2. Fisheries Act Fisheries Act

3. Navigation Protection Act Canadian Navigable Waters Act

4. National Energy Board (Act) Canadian Energy Regulator (Act)

The Brief History Lesson …

Introduction:

A (very) Brief History of Federal Environmental Assessment Processes

(1973-present)

Historical context – federal EA in Canada

• 1973/74 – Federal Environmental Assessment Review Office (FEARO) Environmental Assessment Review Process (EARP)

• 1992 – Canadian Environmental Assessment Act (1992)• Thousands of projects per year assessed by Federal

departments

• 2012 – Canadian Environmental Assessment Act, 2012• List-Based Assessments

• Responsible authorities (CEA Agency, NEB or CNSC)

2018 – New Legislation

• 2018 – Two Bills

− February 6, 2018 - Bill C-68, An Act to amend the Fisheries Act …

− February 8, 2018 - Bill C-69, An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigation Protection Act …

Part 1:

CEAA, 2012 Impact Assessment Act

Part 1: CEAA, 2012 Impact Assessment Act

What has changed? -- Start with the name

Canadian Environmental Assessment Act (1992 and 2012) Impact Assessment Act (2018)

Canadian Environmental Assessment Agency (1992 and 2012) Impact Assessment Agency (2018)

Part 1: CEAA, 2012 Impact Assessment Act

What has changed? -- Whose job is it?Canadian Environmental Assessment Act, 2012

− Canadian Environmental Assessment Agency

− National Energy Board (soon to be Canadian Energy Regulator) and

− Canadian Nuclear Safety Commission

Impact Assessment Act (2018)− Impact Assessment Agency -- yes

− Canadian Energy Regulator and the Canadian Nuclear Safety Commission will no longer have sole responsibility for assessments of projects falling under their regulatory mandates

Part 1: CEAA, 2012 Impact Assessment Act

What has not changed? – Basic Process

Both CEAA, 2012 and Impact Assessment Act have the same two basic process options:

−a “standard” assessment or −a Review Panel.

Part 1: CEAA, 2012 Impact Assessment Act

Does my Project require an impact assessment?

• Like CEAA, 2012, based on a “Project List”.

• Federal government is consulting with the public until April 15, 2018 on the approach to the Project List.

• Draft Project List will be circulated in Fall of 2018 for public consultation, with regulatory process to follow in 2019.

• The Consultation Paper suggests that additional types of projects could be designated such as mines, large wind power facilities and in situ oil sands facilities.

Part 1: CEAA, 2012 Impact Assessment Act

What steps in the Process?

Three phases as opposed to two:

1. A Planning Phase (*new*),• public participation (section 11) and

• an offer to consult with other relevant jurisdictions and Indigenous groups (section 12).

2. An Assessment Phase, and 3. A Decision-Making Phase.

Part 1: CEAA, 2012 Impact Assessment Act

What Factors are Considered?

• Assessment is not limited to only environmental effects, but also “any change to a health, social or economic matter that is within the legislative authority of Parliament that is set out in Schedule 3.”

• Schedule 3 not yet produced.

Part 1: CEAA, 2012 Impact Assessment Act

What Factors are Considered?

List of mandatory factors expanded (s.22(1)), including:

(g) relevant traditional knowledge of Indigenous peoples;

(h) the extent to which the project contributes to sustainability; and

(i) the extent to which the effects of the project hinder or contribute to Canada’s ability to meet its “environmental obligations and its commitments in respect to climate change.”

Part 1: CEAA, 2012 Impact Assessment Act

Reconciliation with Indigenous Peoples (Part 1)

• Preamble:“Whereas the Government of Canada is committed…to ensuring respect for the rights of the Indigenous peoples of Canada recognized and affirmed by section 35 of the Constitution Act, 1982, and to fostering reconciliation and working in partnership with them.”

• New legislated requirements of the consideration of potential project impacts to:

− Indigenous rights and culture (IA Act, ss. 2, 16 and 63)

− Traditional knowledge (IA Act, ss. 22, 84)

Part 1: CEAA, 2012 Impact Assessment Act

Reconciliation with Indigenous Peoples (Part 2)

• Indigenous representation:

− Expert committee to advise the Agency – at lease one member must be an Indigenous person (IA Act, s. 157).

− Indigenous Advisory Committee - Membership must include Indigenous persons (IA Act, s. 158).

Part 1: CEAA, 2012 Impact Assessment Act

How long will this all take?

• Maximum time for some phases of assessments reduced:− Standard assessments: 365 days 300 days

− review panels: 720 days 600 days

• Further phases (e.g. planning phase) added

• Additional regulations on timelines (e.g. circumstances where the Minister may “stop the clock”) will be forthcoming

Part 1: CEAA, 2012 Impact Assessment Act

But we are already underway…?Ongoing Assessments (by Agency or Review Panel): Has the proponent provided the required information and studies (in the pre-panel phase)?

• No continued under the IAA

• Yes continued under CEAA, 2012

Assessment being conducted by the Canadian Nuclear Safety Commission or the former National Energy Board continued under CEAA, 2012.

Part 2:

National Energy Board Canadian Energy Regulator

Part 2: NEBA CERA

What has changed? -- Start with the name

• “National Energy Board” – since 1959

“Canadian Energy Regulator”

• Gives the impression of a wholesale replacement of the NEB rather than mere amendment

Part 2: NEBA CERA

What has not changed?

A “pipeline” is still a “pipeline”

“pipeline” means a line … that connects at least two provinces or extends beyond the limits of a province…

• See: Westcoast Energy Inc. v Canada (National Energy Board), [1998] 1 SCR 322.

Part 2: NEBA CERA

Encore: Meet the New Boss……(almost) the same as the Old Boss.

• The responsibilities of the “Lead Commissioner” look much like the responsibilities of the current “Chair”

• minimum of 1 director and 1 commissioner must be an Indigenous person (CERA, ss. 14(2) & 26(2)).

• must consider any adverse effects on the constitutional rights of Indigenous peoples (CERA, s. 56) .

• The responsibilities of the “Commission” look much like the responsibilities of the current “Board”…

…except in respect of “designated projects” ; …and “offshore renewable projects”.

Part 2: NEBA CERA

What has not changed? – Basic Lifecycle Responsibilities

• overseeing the construction, operation and abandonment of pipelines and most interjurisdictional powerlines;

• oversees matters with respect to traffic, tolls and tariffs on pipelines;

• maintaining an energy information service;

• obligations under the Canada Oil and Gas Operations Act and the Canada Petroleum Resources Act, among other statutes;

• contemplates processes for funding public participation;

Part 2: NEBA CERA

What Factors are Considered for CPCN?

s 52(2) of NEBA vs. CERA, s. 183 (2):

a) cumulative environmental effects;

b) safety and security of persons and protection of property and the environment;

c) health, social and economic effects, including with respect to the intersection of sex and gender with other identity factors;

d) the interests and concerns of the Indigenous peoples of Canada;

e) the effects on the rights of the Indigenous peoples of Canada recognized and affirmed by section 35 of the Constitution Act, 1982; …

Part 2: NEBA CERA

Who makes the final decisions?

• Pre-2012 = National Energy Board

• NEB, 2012 = Governor-in-Council (Cabinet)

• CER (2018) = Governor-in-Council (Cabinet)

= No change

Part 3:

Fisheries Act Fisheries Act

Part 3: Fisheries Act Amendments

Return of the HADD … We’ve HADD it!

• Pre-2012 = “harmful alteration, disruption or destruction”

• 2012 = “serious harm to fish”

• 2018 = “harmful alteration, disruption or destruction”

Part 3: Fisheries Act Amendments

Back to the Future (i.e. pre-2012)

• No longer limiting the protection of fish to “commercial, recreational or Aboriginal fisheries”

• Restoration of HADD and Prohibition on Fish Killing

• Protection of “fish habitat” including “waters frequented by fish”

• All fish (and their habitat) are equal and protected, whether fished or not

Part 3: Fisheries Act Amendments

Recognition of Indigenous Rights

• Strengthened role of Indigenous peoples in project reviews, monitoring and policy development

• Act is subservient to the constitutional protection provided for the rights of Indigenous peoples pursuant to section 35 of the Constitution Act, 1982

Part 4:

Navigation Protection Act Canadian Navigable Waters Act

Part 4: NPA CNWA

What’s new?

• Broadened definition of 'navigable water' now includes consideration of means of transport or travel of Indigenous peoples of Canada (CNWA, s. 2).

• New approval scheme for minor and major works (CNWA, ss. 3-10).

• New list of assessment factors for approvals.

• Enhanced enforcement powers with respect to obstructions on navigable water.

DISCUSSION / QUESTIONS

SOLELY FOR INFORMATIONAL PURPOSES, NO LEGAL ADVICE SOUGHT OR GIVEN.

© 2017, Lawson Lundell LLP. All Rights Reserved.Lawson Lundell LLP is a British Columbia Limited Liability Partnership

Thanks for ListeningPresented by

Shailaz Dhalla

Email: sdhalla@lawsonlundell.com

Direct Line: (403) 218-7522