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 DecisionCompliance & Enforcement
60 days 245 days** 60 days
Max 24 months**
Revie
w Pa
nel
EA b
y th
e Ag
ency
EA startsLimit 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 PROCESSEnvironmental 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?