27 Sep Impact Assessment, the Canadian Energy Regulator & Navigable Waters:
Impact Assessment, the Canadian Energy Regulator & Navigable Waters:
An Overview of what was Bill C-69 and now is Law
What is Bill C-69?
In response to significant changes made to federal environmental laws in 2012 by the previous government, the Liberal Party made an election campaign promise to restore credibility and public trust in Canada’s environmental assessment processes and restore lost protections. Once elected, the federal government established Expert Panels for review of environmental assessment processes (report here) and for modernization of the National Energy Board (report here) while the Standing Committee on Transport, Infrastructure and Communities studied the Navigation Protection Act (report here). It is also worth noting that, in June 2019, the Fisheries Act was amended to reinstate some key habitat protection provisions (via Royal Assent of Bill C-68).
After receiving the recommendations of the Expert Panels and the Standing Committee, in early 2018 the federal government tabled 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. It should be noted that Bill C-69 did not wholly incorporate the recommendations made by the Expert Panels. After a rather tumultuous ride through the House of Commons and the Senate, the Bill received Royal Assent in June 2019 (for more on this, see Bill C-69 A Saga by Anita Nowinka).
What does Bill C-69 do?
Bill C-69 is divided into 4 parts:
- Part 1: Impact Assessment Act
This part repeals the Canadian Environmental Assessment Act, 2012 and replaces it with the Impact Assessment Act.
- Part 2: Canadian Energy Regulator Act
This part repeals the National Energy Board Act and replaces it with the Canadian Energy Regulator Act.
- Part 3: Canadian Navigable Waters Act
This part makes amendments to the Navigation Protection Act. As well, its renames the Act as the Canadian Navigable Waters Act.
- Part 4: Consequential Amendments
This part makes consequential amendments to other Acts of Parliament and regulations as needed.
More detail on the effects of Parts 1, 2 and 3 are discussed below.
Part 1: Impact Assessment Act
As mentioned this part repeals the Canadian Environmental Assessment Act, 2012 and replaces it with the Impact Assessment Act (the IAA). The purposes of the IAA include (s.6):
- fostering sustainability;
- establishing a fair, predictable and efficient process for conducting impact assessments;
- ensuring that projects are considered in a careful and precautionary manner to avoid adverse effects within federal jurisdiction;
- promoting cooperation and coordinated action between federal and provincial governments, and with Indigenous peoples;
- ensuring meaningful public participation in impact assessments; and
- ensuring timely impact assessment that takes into account scientific information, Indigenous knowledge and community knowledge; and
- ensuring respect for the rights of the Indigenous peoples of Canada recognized and affirmed by section 35 of the Constitution Act, 1982, in the course of impact assessments and decision-making.
Whether or not a particular activity is subject to an impact assessment under the IAA, is primarily determined by the Physical Activities Regulation. However, the Minister may direct a project that is not on the list to undergo an impact assessment (s.9). The impact assessment process is conducted either by the Impact Assessment Agency (formerly, the Canadian Environmental Assessment Agency) or by a Review Panel. A Review Panel is required if the designated project includes activities regulated by the Nuclear Safety and Control Act, the Canadian Energy Regulator Act, the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act, or the Canada-Newfoundland and Labrador Atlantic Accord Implementation Act. In addition to these particular types of designated projects, the Minister may refer the conduct of the impact assessment process for other designated projects to a Review Panel if it in the public interest to do so (s.36). In some instances, the Minister may approve substitution of a provincial impact assessment for the federal process (s. 31).
The impact assessment process consists of three phases: planning phase, assessment phase and decision-making phase. The planning phase, which includes participation of the public and relevant federal authorities, is used to determine whether or not an impact assessment is required. Each phase of the impact assessment process is subject to statutory time limits (see Information and Management of Time Limits Regulations, SOR/2019-283). Although some regulations are in place and some draft guidelines are available (for example, Practitioner’s Guide to Federal Impact Assessments under the Impact Assessment Act), there is some lack of clarity around implementation of the IAA and its process.
The impact assessment process must consider a variety of factors (s.22):
- changes to the environment or to health, social or economic conditions and the positive and negative consequences of these changes, including
- effects of malfunctions or accidents,
- cumulative effects, and
- the result of interaction between those effects;
- mitigation measures that are technically and economically feasible;
- impact on any Indigenous group and on the constitutionally protected rights of the Indigenous peoples of Canada;
- the purpose and need for the proposed project;
- alternative means of carrying out the project;
- Indigenous knowledge;
- the extent to which the project contributes to sustainability;
- any change to the proposed project that might be caused by the environment;
- the requirements of the follow-up program;
- considerations related to Indigenous cultures raised with respect to the proposed project;
- community knowledge;
- public comments;
- comments from other jurisdictions;
- any assessment that is conducted by or on behalf of an Indigenous governing body;
- any study or plan conducted or prepared by a jurisdiction or an Indigenous governing body that is respect of a region related to the proposed project;
- intersection of sex and gender with other identity factors; and
- any other relevant matter.
Once the impact assessment report is complete, the Minister or Cabinet must determine whether the project’s adverse effects within federal jurisdiction are in the public interest. In making this determination, five factors must be considered (s. 63):
- the extent to which the proposed project contributed to sustainability;
- the extent to which adverse effects are significant;
- the implementation of mitigation measures that are appropriate;
- the impact of the proposed project on any Indigenous group or the constitutionally protected rights of Indigenous peoples; and
- the extent to which the effects of the proposed project hinder or contribute to the Government of Canada’s ability to meet its environmental obligations and its commitments in respect of climate change.
If a proposed project is determined to be in the public interest and permitted to proceed, then the Minister must establish any conditions that are considered to be appropriate with respect to the adverse effects within federal jurisdiction (s. 64). A decision statement – providing reasons for the decisions and outlining any conditions imposed – must be released by the Minister (s. 65). Post-decision, the Minster maintains authority to add, remove or amend any condition included in a decision statement (s.68).
Much has been written on the changes to the federal environmental assessment regime: see for example, CELA’s Briefing Note on Bill C-69: Overview of Canada’s New Impact Assessment Act and Making the Grade: A Report Card on Canada’s New Impact Assessment Act jointly prepared by several environmental organizations.
Part 2: Canadian Energy Regulator Act
The Canadian Energy Regulator Act (CERA) establishes the successor to the National Energy Board, the Canadian Energy Regulator (CER). Although there are some changes, the CERA is very similar to the now repealed National Energy Board Act. The CERA provides a degree of separation between the day-to-day regulatory activities of the CER and its adjudicative functions which are handled by a Commission (which is established by the CER pursuant to s. 26). The role and procedures of the Commission are set out in the CERA. For example, in making its decision, the Commission is required to consider the rights and interests of Indigenous peoples.
Like its predecessor, the CER is responsible for the regulation of exploitation, development and transportation of energy within federal jurisdiction. This includes regulation of:
- pipelines, both operating and abandoned (Part 3);
- international and certain interprovincial power lines (Part 4); and
- offshore renewable energy projects and power lines.
The regulation of offshore renewable energy projects and power lines is an expansion of authority of the CER beyond that of its predecessor (the NEB). The CER also regulates the exportation of oil, gas and electricity, and the interprovincial oil and gas trade (Part 7).
As an interesting note, section 136 of the CERA has an explicit adoption of the polluter pays principle. Keep an eye out for the ELC’s forthcoming publication on the polluter pays principle in Alberta.
Part 3: Canadian Navigable Waters Act
This part of Bill C-69 makes several amendments to the Navigation Protection Act, including renaming it the Canadian Navigable Waters Act (CNWA). Although not fully restoring the protections that existed prior to 2012, those amendments do result in stronger legislation for the protection of navigable waters in Canada (for more about the 2012 changes, see here and here). Unfortunately, the historic connection between projects on navigable waters and environmental assessment remains broken.
The CNWA restores a comprehensive definition of navigable water. Approval is required for a major work in any navigable water and for any work (other than a minor work) in a navigable water listed in the Schedule to the Act. In considering an application for approval, the Minister must consider a number of factors including the characteristics of the navigable water in question, the safety of and impacts on navigation, public comments and any Indigenous knowledge provided to the Minister (s. 7).
When proposing a work – that is not a major or minor work – in a navigable water not listed in the Schedule, an approval may or may not be required. If the work will not interfere with navigation, then an approval is not needed but the proponent must provide certain information and publish notification (s.9.1). However, if such a work may interfere with navigation, then the proponent must either apply for approval OR provide the necessary information and publish notification (s.10).
Alberta’s Bill C-69 Constitutional Challenge
On September 10, Premier Kenney announced that the province has filed a constitutional challenge to Bill C-69 with the Alberta Court of Appeal (see here). The basis for the challenge is that the effect of changes made by Bill C-69, particularly the impact assessment provisions, interfere with provincial jurisdiction to control natural resources within the province.
In their blog post, Setting the Record Straight on Federal and Provincial Jurisdiction Over the Environmental Assessment of Resource Projects in the Provinces, Professors Martin Olszynski and Nigel Bankes consider the likelihood of whether or not the IAA and CERA would survive a constitutional challenge. In light of caselaw addressing jurisdiction over environmental matters, the Professors conclude that both the IAA and CERA are likely to withstand such a challenge.
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