November 22, 2012 – Canada Continues Rollback of Environmental Regulation

In our posts dated June 27, 2012 and July 12, 2012, we discussed the impact of Canada’s federal omnibus budget implementation bill, Bill C-38, on environmental regulatory protection and Aboriginal environmental rights. This post brings the story up to date with details of the federal government’s new budget implementation Act and regulations.

On October 18 2012, Canada’s federal government introduced a second omnibus budget implementation bill, Bill C-45. That bill has now completed its second reading in the House of Commons and has been referred to committee.

Although the second omnibus bill is longer than the first, its changes are more technical in nature. This is what it has to say about environmental and Aboriginal regulation.

Navigation Protection Act: is amended to limit that Act’s application to works in certain navigable waters that are set out in its schedule. Elizabeth May, leader of the Green Party of Canada,  notes that protected navigable waters have been reduced to a list: three oceans, 97 lakes and 62 rivers. “If a waterway is not listed by name in the schedule to the Act, it no longer has any rights to navigation… For the first time in Canada’s history, most of our waterways have been removed from federal oversight.”

Fisheries Act: “Aboriginal fishery” (one of three types of fishery designated by Bill C-38 as subject to fisheries protections) is redefined to make it consistent with the definition used in land claim agreements. Bill C-45 also changes the administration of the Environmental Damages Fund, which collects fines for Fisheries Act violations. In the future, the money will be spent to “further enhance the conservation and protection of Canada’s fisheries resources.”

Environmental Assessment Act: Bill C-45 makes technical amendments to the Canadian Environmental Assessment Act, 2012 (CEAA 2012) and amends one of its transitional provisions to apply to “designated projects” for which an environmental assessment would have been required under the former Act.

Earlier this year, the government released the following three new regulations under the CEAA 2012:

Prescribed Information for the Description of a Designated Project Regulations (Prescribed Information Regulations)

CEAA 2012 requires that the proponent of a Designated Project submit a project description to the Canadian Environmental Assessment Agency (Agency). Submitting a project description was voluntary under the previous regime.

The purpose the Prescribed Information Regulations is to identify the information that must be included in a project description to enable the Agency to reach a decision on whether an environmental assessment of the project is required.

The required information is divided into five categories: general information, project information, project location information, federal involvement and environmental effects.

Once the Agency is satisfied that the description of the designated project includes all of the required information as per this regulation, it conducts a screening to determine whether an environmental assessment of the designated project will be carried out. The Agency has 10 days to make this determination based on the information provided by the projects proponents.

These regulations relate to designated projects, which are not subject to an environmental assessment linked to the National Energy Board or Canadian Nuclear Safety Commission or designated subject to an environmental assessment by Ministerial order.

The information required in a project description is similar to the type of information that must be provided to provincial authorities, with an emphasis however, on effects on areas of federal jurisdiction. Therefore, a proponent may be able to submit a single project description to both the Agency and the appropriate provincial authority, which would meet the requirements of both jurisdictions.

The Prescribed Information Regulations no longer require:

  • A description of the effect on non-aquatic species at risk under the federal Species at Risk Act
  • Consideration of the impact of the project on the critical habitat of species at risk
  • A description of the project’s purpose (making it more difficult to assess need)
  • A description of the project’s proximity to other projects (making it more difficult to assess cumulative effects)
  • Descriptions of the “components of the environment that are likely to be affected by the project and a summary of potential environmental effects.”  (Although description of physical and biological settings is added)

By contrast, the Prescribed Information Regulations now require information on the effects on Aboriginal peoples of changes to the environment resulting from the project, including effects on health and socio-economic conditions, physical and cultural heritage, the current use of lands and resources for traditional purposes or on any structure, site or thing that is of historical, archaeological, paleontological or architectural significance.

Regulations Designating Physical Activities (RDPA)

CEAA 2012 shifts from a “trigger” approach under the former Act to a “project list” approach in which environmental assessments are required only for designated projects.

The RDPA sets out a list of physical activities that will or may require an environmental assessment. A project that includes one or more physical activities described in the RDPA will be subject to CEAA 2012.

If an activity is not identified in RDPA but has the potential to cause adverse environmental effects, CEAA 2012 allows the Minister of the Environment to designate that project for a federal environment assessment.

Participant funding will be made available for all designated projects that are subject to an environmental assessment.

The list of proposed activities is similar to the list of activities found under the Comprehensive Study List Regulations (CSLR) under the predecessor Act, but

  • Change, alteration or decommissioning  of certain  existing offshore oil and gas facilities, generating stations and oil refineries are exempted
  • The list no longer includes certain activities relating to national parks or national park reserves
  • Types of activities are linked to specified agencies
  • While all activities listed in the CSLR were required to undergo an environmental assessment, not all activities listed in the RPDA will actually require an assessment.

Cost Recovery Regulations

The purpose of this regulation is to support the cost recovery provisions of CEAA 2012 by prescribing the costs in relation to the environmental assessment of a project that the Agency can recover from the proponent of the project

Prescribed rates charged to proponents for third-party services will be replaced by actual market rates for those services and the addition of amounts related to the exercise of the Agency’s responsibilities.

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2 Responses to November 22, 2012 – Canada Continues Rollback of Environmental Regulation

  1. Wendy says:

    thank you for highlighting these important issues

    Like

  2. January 8, 2013 – Two native bands are attempting to challenge parts of the federal government’s omnibus budget bill in court. The bands are the Mikisew Cree and the Frog Lake First Nation, both from Alberta.

    They are asking for a judicial review of the environmental provisions in two budget bills — Bill C-38 and Bill C-45 — because of proposed changes to the Fisheries Act and the Navigable Waters Protection Act.

    http://www.cbc.ca/news/politics/story/2013/01/07/pol-two-bands-duty-to-consult-court-challenge.html

    Like

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