Last week, the federal government introduced Bill C-38, the 2012
Budget Bill. This draft legislation provides more detail on how the
federal government intends to implement the proposed changes
discussed in our previous Flash of April 19, 2012.
The Budget Bill would significantly affect the federal
environmental regulatory regime including the federal environmental
assessment (EA) process. The federal government proposes to repeal
the Canadian Environmental Assessment Act (the
"CEAA") and reintroduce a new Canadian Environmental
Assessment Act, 2012. The new Act would limit the number of
projects that go through a federal EA review and narrow the scope
of the environmental impacts assessed federally, giving more
responsibility to the provinces. Bill C-38 also proposes
significant changes to other federal environmental legislation
including the Fisheries Act, the Species at Risk
Act, the Canadian Environmental Protection Act, 1999,
the National Energy Board Act and the Nuclear Safety
Key changes to the federal EA regime would include:
Project List: Only environmentally significant
"designated projects" would require a CEAA assessment and
these projects would be identified on a list set out in a
regulation or by an order made by the Minister of the Environment.
The list of designated projects proposed for the regulation has not
yet been released. At a minimum, we expect that it will include the
type of projects currently included in the Comprehensive Study List
Regulations. Even for a designated project, the Minister of the
Environment could substitute a provincial process for the federal
Responsible Authorities: Federal authorities
responsible for EA would be limited to the Canadian Environmental
Assessment Agency, the National Energy Board (NEB) and the Canadian
Nuclear Safety Commission.
Fixed Timelines: Timelines would be imposed for
each step of the EA process. Standard assessments would be
conducted within a year, reviews by the NEB would be allowed to
take up to a maximum of 18 months (15 months plus a possible
three-month extension), and review panel assessments would be
allotted two years. Timelines would be retroactive, affecting
projects already in the federal EA process.
Public Participation: Public participation would
be limited to "interested parties", defined as persons
directly affected by a project and those with relevant information
or expertise. The definition is intended to limit the number of
interveners in federal EA review panel assessments.
Bill C-38 will be debated in the House of Commons from May 2 to
May 4. It will then go to the finance committee for review and
return to the House of Commons for a final vote (likely by May 14).
This would mean that Bill C-38 would become law by the end of
Parliament's spring session. Opposition parties and
environmental groups are calling for a separate bill to ensure that
the proposed regulatory reform receives a more comprehensive review
by the specialized Standing Committee on Environment and
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The Ontario Court of Appeal has recently discussed the drafting of expert reports and the nature of expert testimony (respectively in Moore v Getahun, 2015 ONCA 55 (CanLII) and Westerhof v Gee, 2015 ONCA 206 (CanLII)).