The Canadian Environmental Assessment Act 2012 and Aboriginal Consultation

November 2012

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Outline Overview of CEAA 2012 Aboriginal consultation and expectations Key process steps of CEAA 2012 Harmonization with provinces Public participation

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EA responsibility within many departments

Applies to federal departments/Agencies with decision on a Proponent’s project

Applies broadly to many project types and sizes — 3 types of EA

Environmental effects defined broadly

Overall timeline for Comprehensive Studies

Enforcement of EA conditions done through permits and sometimes challenging

Cooperation with provinces

Major Changes in CEAA 2012

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Former Act CEAA 2012

EA responsibility within CEA Agency, NEB, CNSC

Applies to Proponents

Focus on projects with greater environmental risk — 2 types of EA (Standard and Review Panel)

Focus on federal jurisdiction with EA off ramp

Timelines for key EA steps — 10d (Project Description), 45d (Screening), 60d (Panel Referral), 365d (Standard EA) or 24mo (Review Panel)

EA Decision Statement with enforceable conditions

Cooperation, substitution and equivalency with provinces except projects referred to Review Panels

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EA Processes & Timelines

Pre-EA

55 days*

EA Commencement

Conduct the Analysis EA Report EA Decision Compliance &

Enforcement

60 days 245 days** 60 days

Max 24 months**

Revie

w Pa

nel

EA b

y th

e Ag

ency

EA starts Limit for referral to review panel

Max 365 days**

* Includes 10 days to review project description and 45 days to determine whether an EA is required** Government time only, federal clock may be stopped when the proponent is required to provide information

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Aboriginal Consultation

Crown has legal duty to consult Aboriginal peoples about potential impact on their rights of decisions associated with federal conduct

Agency will continue to integrate consultation into EA process to the greatest extent possible

CEAA 2012 includes requirement to assess changes to the environment that affect aboriginal peoples

Participant funding program will continue to provide capacity funding to enable Aboriginal groups to engage in consultations • Type of expenses covered: fees for expert advice, travel expenses, purchase of

relevant information materials, information collection and dissemination costs, among others

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Coordinated Approach to Aboriginal Consultation Agency coordinates federal Aboriginal consultation activities

during the EA process Provides Aboriginal gro ups with opportunity to comment on:

• potential environmental effects of the project and how they should be included in the EA

• the potential impacts of a project on potential or established Aboriginal or Treaty rights

• mitigation and accommodation measures • follow-up programs

May not always lead to “agreed to” accommodation

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INTEGRATION OF ABORIGINAL CONSULTATION INTO THE ENVIRONMENTAL ASSESSMENT PROCESS

Environmental Assessment Process

Key Consultation Activities for Aboriginal Groups

Phase 1:Pre-EA Planning

Phase 2:EIS Guidelines

Phase 3:EIS Review and Draft EA Report

Phase 4:EA Report

Review

Phase 5:EA Decision

Phase 6:Compliance

and EnforcementPD Review and

EA Determination

• Receive EA determination notification letter from the Agency

• Have preliminary discussions with the proponent

• Receive EA determination decision letter from the Agency

• Comment on Environmental Impact Statement (EIS) Guidelines (the terms of reference)

• Comment on EIS (technical studies and analysis)

• Comment on the proposed consultation workplan

• Receive information about participant funding program

• Participate in consultation activities, as per workplan

• Comment on the draft EA Report, including the Aboriginal consultation summary

• Participate in consultation activities, as per workplan

• Notified of the Minister’s EA Decision

Engagement as appropriate on:

• Outstanding impacts identified in the EA

• Mitigation and follow-up programs

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Environmental Effects

Change that may be caused to fish and fish habitat, aquatic species or migratory birds

Change to the environment that would occur on federal lands or in a province other than the site of the project or outside Canada

With respect to Aboriginal peoples, an effect of any change to the environment on• health and socio-economic conditions• physical and cultural heritage• current use of lands and resources for traditional purposes• elements of historical, archaeological, paleontological or architectural

significance

Changes to the environment other than those above directly linked or necessarily incidental to federal decisions

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Determining if an EA is Needed

Regulations Designating Physical Activities (“project list”) describes projects that may be subject to a federal EA

Minister of the Environment may designate a project not on the list

Proponents of designated projects must provide the Agency with a project description

• Information requirements are set out in the Prescribed Information for the Description of a Designated Project Regulations

• Includes a requirement to identify Aboriginal Groups that may be interested in, or potentially affected by, the designated project

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Determining if an EA is Needed(cont’d)

Agency has 45-days, including a 20-day public comment period, to decide whether to require an EA

Agency must consider: • description of the project,• possibility of adverse environmental effects• comments received during the comment period• results of any relevant regional studies

Once the Agency accepts a project description, Aboriginal groups will be notified in writing of the potential federal EA and will be sent a copy of the PD for their comments

CNSC/NEB regulated projects skip screening step and automatically require an EA

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Types of EA and Cooperative Mechanisms

Designated Project

*Substitution and equivalency do not apply to EAs conducted by Review Panels onr by NEB or CNSC

CEAA 2012

Environmental Assessment by

RA

Environmental Assessment by a

Review Panel

CoordinationFederal Only Federal Only Joint Review Panel

Substitution orEquivalency*

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Substitution enables a provincial process to substitute for the federal EA process

Substitution [s. 32 to 36]

Substitution does not apply to review panels or projects regulated by the CNSC or the NEB [s. 33]

Upon request, the Minister must allow a provincial process to substitute or may approve the substitution to another jurisdiction if: • of the opinion that the process will be an appropriate substitute [ss.

32(1), 32(2)], and• satisfied that conditions for substitution will be met [ss. 34(1)]

EA decision for substituted EA remains with Minister [s.36]

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Equivalency [s. 37]

If substitution to a province has been granted by the Minister, Governor in Council (GIC) may exempt a designated project from application of CEAA 2012.

Equivalency covers both EA process and decision-making GIC must be satisfied that:

• conditions for substitution are met• upon completion of the EA, the province makes determination of

significance of environmental effects• province ensures implementation of mitigation measures & implementation

of follow-up program, and• any other conditions that the Minister establishes will be met

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Regional Studies

Minister of the Environment may appoint a “committee” (similar to a review panel) to conduct regional studies• Need agreement and cooperation of other jurisdictions for

regions not entirely made up of federal lands• Will incorporate traditional knowledge and use studies

Results of a regional study created under CEAA 2012 must be considered during the screening step when determining if an EA is required and during an EA

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Public Participation

Provided for throughout the EA processes:• public comment period when the Agency is determining

whether an EA is required [s.9]• an opportunity for public participation is provided during the

conduct of EAs by the RA [s.24]• public comment period on draft EA report for projects

assessed by the Agency [par.25(1)(b)]• review panels are required to hold public hearings during

which interested parties can participate [par.43(1)(c)]• review panels also consider written comments from public

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Roles and Responsibilities

CEAA- Crown Consultation Coordination- Coordinate consultation during EA phase - Manages Aboriginal funding- Maintain crown record for EA phase

Major Project Management Officer (MPMO)- Oversees crown consultation effort post EA phase - Receives crown consultation record from CEAA

Federal Departments- Participate in consultation - Address obligations that arise during consultation relevant/appropriate for their mandate

Aboriginal and Northern Affairs Development Canada (AANDC)- Supports consultation through advice on Treaty Rights, training, development of consultation protocols and MOUs

Aboriginal Groups- Identify potential impacts on potential or established Aboriginal or Treaty Rights- Share relevant information regarding potential impacts- Participate in identifying resolution to issues

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Questions?