Government announces overhaul of Environmental Assessments in Canada

On February 8, 2018, the federal government’s Bill C-69 - An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigation Protection Act and to make consequential amendments to other Acts – was given First Reading.

The new legislation – part of the largest overhaul of Canada's environmental assessment process in a generation – aims to streamline the approval process for major natural resources projects, scrapping the National Energy Board and empowering a new body to conduct more extensive consultation with groups affected by development.

The 340-page Bill is in 4 parts:

• Part 1 enacts the Impact Assessment Act and repeals the Canadian Environmental Assessment Act, 2012.
• Part 2 enacts the Canadian Energy Regulator Act, which establishes the Canadian Energy Regulator and sets out its composition, mandate and powers.
• Part 3 amends the Navigation Protection Act to, among other things, require that an owner apply for an approval for a major work in any navigable water.
• Part 4 makes consequential amendments to Acts of Parliament and regulations.

Part 1 enacts a new Impact Assessment Act (IAA). Among other things, the new Act:

• establishes the Impact Assessment Agency of Canada as the authority responsible for impact assessments;
• provides for a process for assessing the environmental, health, social and economic effects of designated projects with a view to preventing certain adverse effects and fostering sustainability;
• prohibits proponents, subject to certain conditions, from carrying out a designated project if the designated project is likely to cause certain environmental, health, social or economic effects, unless the Minister of the Environment or Governor in Council determines that those effects are in the public interest, "taking into account the impacts on the rights of the Indigenous peoples of Canada, all effects that may be caused by the carrying out of the project, the extent to which the project contributes to sustainability and other factors";
• establishes a planning phase for a possible impact assessment of a designated project, which includes requirements to cooperate with and consult certain persons and entities and requirements with respect to public participation; and
• authorizes the Minister to refer an impact assessment of a designated project to a review panel if he or she considers it in the public interest to do so, and requires that an impact assessment be referred to a review panel if the designated project includes physical activities that are regulated under the Nuclear Safety and Control Act, the Canadian Energy Regulator Act, the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act and the Canada–Newfoundland and Labrador Atlantic Accord Implementation Act.

• establishes time limits with respect to the planning phase, to impact assessments and to certain decisions, in order to ensure that impact assessments are conducted in a timely manner;
• provides for public participation and for funding to allow the public to participate;
• sets out the factors to be taken into account in conducting an impact assessment, including the impacts on the rights of the Indigenous peoples of Canada;
• provides for cooperation with certain jurisdictions, including Indigenous governing bodies, through the delegation of any part of an impact assessment, the joint establishment of a review panel or the substitution of another process for the impact assessment;
• requires that scientific and other information taken into account in an impact assessment, as well as the reasons for decisions, be made available to the public through a registry that is accessible via the Internet;
• provides that the Minister may set conditions, including with respect to mitigation measures, that must be implemented by the proponent of a designated project; and
• provides for the assessment of cumulative effects of existing or future activities in a specific region through regional assessments and of federal policies, plans and programs, and of issues, that are relevant to the impact assessment of designated projects through strategic assessments.

Part 2 enacts the Canadian Energy Regulator Act, which establishes the Canadian Energy Regulator and

sets out its composition, mandate and powers. T

Part 3 amends the Navigation Protection Act to, among other things:

• rename it the Canadian Navigable Waters Act;
• provide a comprehensive definition of navigable water;
• require that, when making a decision under that Act, the Minister must consider any adverse effects that the decision may have on the rights of the Indigenous peoples of Canada;
• require that an owner apply for an approval for a major work in any navigable water;
• set out the factors that the Minister must consider when deciding whether to issue an approval;
• provide a process for addressing navigation-related concerns when an owner proposes to carry out a work in navigable waters that are not listed in the schedule;
• provide the Minister with powers to address obstructions in any navigable water;
• amend the criteria and process for adding a reference to a navigable water to the schedule;
• require that the Minister establish a registry; and
• provide for new measures for the administration and enforcement of the Act.

For reference a naviagable water is now defined as:

navigable water means a body of water, including a canal or any other body of water created or altered as a result of the construction of any work, that is used or where there is a reasonable likelihood that it will be used by vessels, in full or in part, for any part of the year as a means of transport or travel for commercial or recreational purposes, or as a means of transport or travel for Indigenous peoples of Canada exercising rights recognized and affirmed by section 35 of the Constitution Act, 1982, and

(a) there is public access, by land or by water;

(b) there is no such public access but there are two or more riparian owners; or

(c) Her Majesty in right of Canada or a province is the only riparian owner. (eaux navigables)

 

Access Bill C-69 at: http://www.parl.ca/DocumentViewer/en/42-1/bill/C-69/first-reading

 

Implications   The bill will undoubtedly impact CWWA members, both with the changes to the criteria to determine when an assessment is required, the changing process for the actual assessment and permitting when projects are being under taken in a navigable water. CWWA will be discussing the changes with our technical committees for a more complete analysis of the proposed changes, and will keep our members up to date on the legislative process.