In 2012, the Harper government made a series of draconian changes to Canada’s environmental protection legislation, not least the rules on federal environmental assessment and those dealing with the review of pipeline applications by the National Energy Board (NEB).
In January of this year we reported on the Trudeau government’s introduction of its interim approach to environmental assessment, in anticipation of its broader strategy to review Canada’s environmental assessment processes, and the announcement of interim measures for the review of pipeline projects by the NEB.
The Trudeau government has now announced a comprehensive review of environmental and regulatory processes that will focus on:
- Rebuilding trust in environmental assessment processes;
- Modernizing the National Energy Board; and
- Restoring lost protections and introducing modern safeguards to the Fisheries Act and the Navigation Protection Act.
This article gives some of the highlights of and background to the government’s announcement.
Review of Environmental Assessment Processes
There are currently three responsible authorities that conduct federal environmental assessments: the Canadian Environmental Assessment Agency, the National Energy Board and the Canadian Nuclear Safety Commission.
The Review Process
The Minister of Environment and Climate Change is establishing an Expert Panel to review federal environmental assessment processes associated with the Canadian Environmental Assessment Act, 2012.
The Expert Panel will engage broadly with Canadians, Indigenous groups and key stakeholders and develop recommendations to the Minister of Environment and Climate Change for restoring public confidence in environmental assessment processes.
Indigenous and public input is invited until July 20, 2016 on the draft Terms of Reference for the Expert Panel – a document that outlines its proposed mandate, timelines and procedures.
Consultations
Canadians will be consulted broadly throughout the review, both online and in-person. The public is invited to share their views.
Consultation opportunities are being planned across Canada and will begin in September 2016. Dates and locations will be available shortly.
As part of the government’s commitment to renewing its relationship with Indigenous people based on trust, respect, and cooperation, the Expert Panel will work directly with Indigenous groups to ensure that their concerns are heard and taken into account throughout the review.
Participant funding will be made available to assist Indigenous people in participating in the process and expressing their views.
Next Steps
Following the consultation period on the Expert Panel’s Terms of Reference, members and details on the participant funding application process for Indigenous people will be announced.
National Energy Board Modernization
The Minister of Natural Resources has been mandated by the Prime Minister to modernize the National Energy Board (NEB) and to ensure its composition reflects regional views and has sufficient expertise in such fields as environmental science, community development, and Indigenous traditional knowledge. Modernization of the NEB will ensure it is able to continue to effectively regulate energy developments in Canada in a way that has the confidence of Canadians.
Scope
This review will look at issues that are specific to the NEB and fall outside the separate review of Canada’s federal environmental assessment processes. It is an opportunity to strengthen the regulatory process and ensure that Canada continues to have a modern, efficient and effective regulator. Specifically, the review will focus on:
- Governance and structure
- Mandate and future opportunities
- Decision-making on major projects
- Compliance, enforcement, and ongoing monitoring
- Engagement with Indigenous peoples
- Public participation
The Review Process
The Government will establish an Expert Panel this summer that will be tasked with consulting Indigenous peoples, key stakeholders and Canadians across the country and providing advice on potential reforms that need to be undertaken. The Expert Panel is expected to provide a report with recommendations to the Minister of Natural Resources by January 31, 2017, which will be made public.
The draft Terms of Reference for the Expert Panel are available for public review and comment for 30 days, until July 20, 2016. Panel members will be announced following this comment period.
Consultations
Indigenous peoples:
- The specific views of Indigenous peoples and communities will be sought as part of this process. Participant funding will be made available.
- These engagement activities are supplementary to the Government’s pledge to hear more widely the views of Canadians, including more meaningful consultations with Indigenous peoples on existing projects.
Public and stakeholder engagement:
- All interested Canadians will have the opportunity to provide input, including industry, non-governmental organizations, academia, the different levels of government and others as required.
- Canadians can share their initial views on this and other mandated reviews here, in one place, to ease the burden of multiple engagement processes.
Next Steps
As announced by the Prime Minister in February 2016, future NEB appointments will follow an open and competitive process for appointing new Board members. These additional members will help ensure the NEB is representative of the diverse views of Canadians, including Indigenous peoples.
Fish Habitat Protection
The Fisheries Act gives the government authority to manage Canadian fisheries and to protect the habitat that supports them. The government has committed to reviewing the recent changes to the Act to restore any lost protections and to incorporate modern safeguards.
This review will engage parliamentarians and consult broadly with Canadians, Indigenous groups, provinces and territories, and a range of stakeholders including industry and environmental groups.
The Review Process
Parliament’s Standing Committee on Fisheries and Oceans and Standing Committee on Transport, Infrastructure and Communities will examine recent changes made by the Harper government to the Fisheries Act and the Navigation Protection Act.
As an independent and public forum, a parliamentary committee can hear from witnesses including experts. All Canadians are welcome to submit briefs or ask to appear as witnesses. They can also attend the hearings in person.
When the committee has finished its work, it will report to Parliament with recommendations on how to address concerns about the protection of fish and fish habitat.
Consultations
Indigenous Consultations
Fisheries and Oceans Canada will work directly with Indigenous peoples to ensure that their concerns are heard and taken into account.
Participant funding will be available to make sure they are able to participate and express their views.
Public and stakeholder consultations
In addition to the work of the parliamentary committee, Fisheries and Oceans Canada will seek and consider input from the public through an online questionnaire.
In the coming weeks, Canadians will be invited to visit this website to find out more about ways they can contribute their thoughts and suggestions. Regularly updated information about the work of the parliamentary committees and other consultation activities can also be found here.
Next Steps
While the review is underway, the government will continue to ensure that fish and fish habitat are protected to support sustainable fisheries. It will also implement new processes to monitor the development of projects and report on how fish and fish habitat are being protected.
When all of the reviews are completed, the government will bring forward new environmental assessment processes, restore lost protections, and introduce modern safeguards.
Navigation Protection
The Government of Canada has committed to restoring lost protections and introducing modern safeguards to the Navigation Protection Act.
The Navigation Protection Act gives the Government of Canada the authority to regulate interferences (e.g., bridges and dams) with the public’s right to navigate in Canada’s busiest waterways. The Act also prohibits dewatering navigable waters and depositing or throwing materials into them that risk impacting navigation.
This review will consult broadly with Canadians, Indigenous peoples, provinces and territories, and a range of stakeholders including industry and environmental groups.
The Review Process
A Parliamentary committee will examine the recent changes made by the Harper government to the previous Navigable Waters Protection Act (now the Navigation Protection Act) and to hear from Canadians.
As an independent and public forum, the parliamentary committee will invite witnesses, including experts, to present their views. All Canadians are welcome to submit briefs or ask to appear as a witness.
When the committee has finished its work, it will report to Parliament with recommendations on how to address concerns about protecting navigation.
Consultations
Indigenous Consultations
Transport Canada will work directly with Indigenous groups to ensure that their concerns are heard and taken into account.
Participant funding will be available to make sure they are able to participate and express their views.
Public and Stakeholder Consultations
Listening to the experience and views of Canadians is at the core of this review. In addition to the work of the parliamentary committee, Transport Canada will seek and consider input from the public through an online questionnaire.
Canadians are invited to visit this webpage to find out more about how they can contribute their thoughts and suggestions.
Regularly updated information about the work of the parliamentary committee and other consultation activities can also be found here.
Next Steps
During this review, Transport Canada will continue to review projects under the existing law, while continuously working to modernize existing standards and procedures.
When all of the reviews are completed, Transport Canada will propose changes to the legislation, as appropriate, to restore lost protections and introduce modern safeguards.
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Manning Environmental Law is a Canadian law firm based in Toronto, Ontario. Our practice is focussed on environmental law, energy law and aboriginal law.
Paul Manning is a certified specialist in environmental law. He has been named as one of Canada’s leading Environmental Lawyers by Who’s Who Legal: Canada and ranked by Lexpert as one of Canada’s Leading Energy Lawyers.
As always, these posts are provided only as a general guide and are not legal advice. If you do have any issue that requires legal advice please get in touch. Our contact details can be found here
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