Bill C-38 will amend a number of statutes concerning the environment including the Fisheries Act. Above, a commercial fishing fleet in Steveston Harbor, B.C. [Maxvis/iStockphoto.com]
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Perhaps no aspect of the federal government’s omnibus budget bill has attracted more attention than proposed changes to the environmental assessment process and related legislation. To this end, Bill C-38 will overhaul the Canadian Environmental Assessment Act (CEAA). It would also amend a number of other statutes governing the environment and natural resources, including the Fisheries Act, National Energy Board Act, Canadian Environmental Protection Act and Species at Risk Act.
Here are key changes.
New legislative trigger
Under the present CEAA, a project is subject to an environmental assessment if it has a federal connection, or “trigger,” such as the need for a federal permit or authorization. Under the new CEAA, a project will require a federal assessment if it is a designated project in the regulations, which have yet to be enacted. The minister will retain the jurisdiction, however, to require an environmental assessment for projects not specified by regulation.
The present “tracks” (i.e. “screenings,” “comprehensive studies” and “panel reviews”) have been recast as simply “environmental assessments” and “panel reviews.” Designated projects will now undergo an initial screening by the Canadian Environmental Assessment Agency, which will decide whether an assessment is required. All projects in which the “responsible authority” is the Canadian Nuclear Safety Commission or the National Energy Board will require an assessment, as will certain other prescribed projects.
If it is determined that a project is likely to result in significant adverse environmental effects, it will now be referred to the federal cabinet for final approval.
The new CEAA also limits consideration of the environmental effects of a project to those falling within federal jurisdiction, focusing on migratory birds, fish and other aquatic species.
One project, one review
One of the principal criticisms of the present assessment process has been its lack of integration with corresponding provincial regimes, which has resulted in unnecessary duplication and inconsistent decisions. In a much-anticipated reform, the new CEAA adopts a “one project, one review” approach, and permits the minister to recognize provincial environmental assessments as substitutes or equivalents for federal assessments where the requirements of the new CEAA have been met.
In another expected development, Bill C-38 imposes mandatory timelines for environmental assessment decisions, with the aim of ensuring a more predictable and timely review of projects.
Under the new CEAA, standard assessments must be completed in 12 months and panel reviews in 24 months. Assessments commenced under the existing CEAA will likewise be governed by mandatory timelines, depending on the type of assessment being undertaken, and the date that it was commenced.
Bill C-38 would appear to endow federal authorities with significant discretion to limit standing to participate in environmental assessment proceedings involving large-scale natural resource projects, such as the Enbridge Northern Gateway Pipeline in Alberta and British Columbia.
Currently, members of the public may attend environmental assessment proceedings and federal authorities must consider public comments before making a determination. However, only “interested parties” may participate in panel reviews and assessments conducted pursuant to the National Energy Board Act.
The new CEAA would narrow the definition of an “interested party” to any person “directly affected by the carrying out of the designated project” or any person who “has relevant information or expertise,” in the opinion of a responsible authority or review panel. (The old definition was “any person or body having an interest in the outcome of the environmental assessment for a purpose that is neither frivolous nor vexatious.”)
Bill C-38 would increase enforcement measures by giving responsible authorities greater power to monitor projects and establish administrative monetary penalties in connection with designated projects that cause damage to the environment.
Bill C-38 makes a significant and controversial amendment to the Fisheries Act that would repeal and combine the prohibitions against the “harmful alteration, disruption or destruction of fish habitat” and against the killing of fish, with a single new prohibition on any activity that results in “serious harm to fish that are part of a commercial, recreational or aboriginal fishery or fish that support such a fishery.” The new term “serious harm” is defined as “the death of fish or any permanent alteration to, or destruction of, fish habitat.”
The narrower provision has raised questions about whether the phrase “commercial, recreational or aboriginal fisheries” excludes fish in water bodies such as small streams, tributaries or wetlands. It has also raised concerns about the effect of causing damage to fish that does not actually result in death.
A fundamental overhaul
Bill C-38 represents a fundamental overhaul of the federal environmental assessment process. It is clear that the new CEAA will address many long-held complaints about the current scheme, including duplication between the federal and provincial regimes, the spectre of inconsistent results arising from separate assessments, and lengthy delays for project proponents in obtaining a decision. It remains to be seen as to what effect Bill C-38 will have on environmental protection and public consultation, in its attempt to achieve a more efficient process.
Dionysios Rossi and Brad Woods practise environmental law at the Vancouver office of Borden Ladner Gervais LLP.
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