Bill streamlines environmental act

On April 26, the federal government introduced Bill C- 38, the 2012 budget bill. Among other things, it included a proposed new Canadian Environmental Assessment Act, the central piece of federal environmental impact review legislation that was enacted in 1992. The new act follows on the heels of a statutory review by the federal Standing Committee on Environment and Sustainable Development, which suggested a number of reforms to streamline the federal environmental assessment process.

The purposes of the act remain substantially unchanged. They include the purpose of ensuring that designated projects that require federal approval are considered “in a careful and precautionary manner to avoid significant adverse environmental effects.” Coordination between provincial and federal environmental assessment authorities has long been an objective of the environmental assessment process. Practically speaking, much of what the federal government has proposed will, if passed in its current form, bring the federal system in line with what the province of British Columbia and other jurisdictions are already doing. For project proponents working in the mining, energy and oil and gas sectors, among others, these changes are largely positive and will lend a degree of certainty and predictability to the environmental review process.

First, environmental assessments will be triggered based on the type and size of a project. The current federal act and regulations require an environmental assessment for any project that might require a federal licence, permit or approval, regardless of the size of the project. The new approach will factor in the size of a project in order to determine whether an assessment is required. This is essentially the system that is in place with respect to the British Columbia Environmental Assessment Act.

Second, federal environmental assessments will be managed by a dedicated agency — the Canadian Environmental Assessment Agency ( the National Energy Board and Canadian Nuclear Safety Commission will still complete environmental assessments for projects within their respective mandates). Currently, responsibility for federal environmental assessment rests with any one of the 40 different federal departments and agencies with potential responsibility for decision making powers in relation to projects. The advantage of a single agency is to bring expertise, consistency and efficiency to the environmental assessment process. The single agency approach is already in place in British Columbia under the Environmental Assessment Office.

Third, the federal legislation will include express timelines for completion of the environmental assessment and regulatory process: 365 days for standard assessments, 18 months for reviews by the National Energy Board and 24 months for assessments by a review panel. These timelines may be extended by the Minister and/ or federal cabinet. Again, this is similar to the British Columbia approach, which stipulates a 180- day time frame for decision once all of the studies necessary for the completion of environmental review have been submitted.

Fourth, public and aboriginal consultation will be incorporated expressly into the environmental assessment process. Currently, federal consultation with first nations is often conducted ad hoc and separately from the environmental assessment process. Coordinated and integrated consultation by the Crown will bring some certainty to the process and ensure that the duties to consult and where necessary, accommodate, impacts to aboriginal rights and title, are discharged within the same time frame as the environmental assessment process. In British Columbia, the Environmental Assessment Office processes are designed to incorporate and fulfil consultation requirements with first nations.

Fifth, and potentially the most significant change from the perspective of proponents, is the concept of “one project, one assessment.” Currently, project proponents can be faced with separate provincial and federal environmental assessment processes, resulting in significant duplication and delay, and the risk of conflicting results. The “one project, one assessment” approach is already applied in many Canadian jurisdictions, including Yukon, Northwest Territories and Nunavut.

It is important to note that none of these streamlining initiatives is intended to reduce the scope or rigour of environmental assessment required for major projects. Projects located in British Columbia will continue to undergo a robust and public environmental assessment process before they are permitted to proceed.