Canada: The Liberal Government Plans To Change Canada's Environmental Legislation

On February 8, 2018, Catherine McKenna, Minister of Environment and Climate Change tabled Bill C-69 (the "Bill"), 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. The stated purpose of the Bill is to protect the environment and health and safety of Canadians, taking action consistent with achieving reconciliation with First Nations, the Metis and the Inuit, to build an early engagement and consultation process that is to include scientific knowledge, traditional knowledge of the Indigenous peoples of Canada and community consultation.

Most significantly, the Bill proposes to enact two new Acts, the Impact Assessment Act and the Canadian Energy Regulator Act, and to repeal the Canadian Environmental Assessment Act1 and the National Energy Board Act, respectively. This summary will highlight the major legislative changes between the proposed Acts and the current Acts and identify some of the implications such changes may have.

Impact Assessment Act ("IAA")

Purpose and Overview

The stated purpose of the IAA includes the stated purpose of the CEAA but also includes greater recognition for the rights of the Indigenous peoples of Canada and an aim of ensuring that an impact assessment takes into account scientific information, traditional knowledge of the Indigenous peoples of Canada and community knowledge. The proposed Act provides broad discretionary powers to the Minister. The Minister may designate a physical activity as a "designated physical activity", even if not mandated by the regulations if the Minister believes that the carrying out of that physical activity may cause adverse effects.2 In other words, the Minister has discretion to determine whether an assessment is required for any physical activity.

Participation

Although the CEAA contained some opportunities for public participation in environmental assessments, the proposed Act mandates greater initial consultation in the planning phase of the impact assessment.  The new Impact Assessment Agency (the "Agency") must ensure that the public is provided with an opportunity to participate in preparation for a possible impact assessment of a designated project,3 and the Agency must offer to consult with any jurisdiction that has powers in relation to an impact assessment and any Indigenous group that may be affected by the project.4

Consultation with any jurisdiction includes the government of a province, a federal authority, any agency that is established under an Act of a province, or an Indigenous governing body that has powers, duties, or functions in relation to an assessment of the environmental effects of a project. The Agency or the Minister (in the case of referral to a review panel) must offer to consult and cooperate with such jurisdictions. 

Requirement of an impact assessment

The CEAA contained factors that must be considered by the Agency when determining whether an environmental assessment was required. The proposed Act contains additional factors with respect to considerations that must be taken when the Agency is determining whether an impact assessment is necessary. Specifically, the Agency must consider any adverse impact that the project may have on rights of Indigenous peoples of Canada affirmed by section 35 of the Constitution Act, 1982 and any study conducted or plan prepared by a jurisdiction with respect to a region related to the designated project.5 Upon deciding that an impact assessment is required, the Agency must provide the proponent with a notice of commencement of the impact assessment outlining the necessary information to complete the assessment within 180 days of posting the description of the designated project.6 The information provided in the notice of commencement must be provided to the Agency within three years after the day on which the notice of commencement is posted on the website.

Impact assessment report – considerations

With respect to the assessment itself, the proposed Act includes the following additional factors that must be taken into account as part of an impact assessment by the Agency:

  • impact on any Indigenous group and any adverse impact on the rights of indigenous peoples of Canada affirmed by section 35 of the Constitution Act;
  • traditional knowledge of the Indigenous peoples of Canada with respect to the project;
  • the extent to which the designated project contributes to sustainability;
  • the extent to which the effects of the project hinder or contribute to the Government of Canada's ability to meet its environmental obligations and commitments in respect of climate change;
  • considerations related to Indigenous cultures raised with respect to the project;
  • community knowledge provided with respect to the project;
  • comments from a jurisdiction received in the course of consultations;
  • any assessment of the effects conducted on behalf of an Indigenous governing body; and
  • the intersection of sex and gender with other identity factors.7

The scope of the factors is determined by the Agency or the Minister if the impact assessment is referred to a review panel.

Under the proposed Act, the Agency cannot conduct assessments respecting designated projects that are also regulated by either the Nuclear Safety and Control Act or the Canadian Energy Regulator Act. Such matters must be sent directly to a review panel and there are specific duties enumerated for each of these regulators under the proposed Act.8

Protection and preservation of traditional knowledge is also contained in the proposed Act, in that any traditional knowledge of the Indigenous peoples of Canada that is provided in confidence to the Regulator under the Act is confidential and must not knowingly be or permitted to be disclosed without written consent.9

With respect to penalties, the new Act provides for minimum fines when an individual or a corporation commits an offence under the Act. The CEAA does not contain minimum fines.

Appeals

The appeal process under the proposed Act has not changed from the CEAA. If written notice of appeal is provided within 30 days after the day on which written reasons are provided for a decision by the designated officer, the party to whom the decision or order was directed may appeal to the Federal Court.

Important timelines

The proposed Act, in the interest of expediency has implemented timelines by which certain activities mandated by the Act must be completed:

  • Where an impact assessment is required, the Agency must provide the proponent of the project a notice of commencement containing assessment requirements within 180 days. The Minister has the authority to extend the time limit by any period up to a maximum of 90 days;
  • The Agency must finalize the impact assessment report and submit it to the Minister no later than 300 days after the date on which the notice of commencement was posted. The Minister has the authority to extend this timeline up to maximum of 90 days;
  • If the Minister is of the opinion that it is in the public interest to refer the impact assessment to a review panel, she must do so within 45 days of the notice of commencement being posted;
  • If the impact assessment is referred to a review panel, the review panel must submit a report to the Minister no later than 600 days after the day on which the minimum number of members are appointed to the panel;
  • The Minister must issue a decision statement no later than 30 days after the day on which the report with respect to the impact assessment is posted;

Interaction with the National Energy Board ("NEB")

For projects that include activities regulated under the Canadian Energy Regulator Act, the review panel may exercise powers conferred on the Commission (as defined in the Canadian Energy Regulator Act. Under the new Canadian Energy Regulator Act, if an application to the Regulator (hereinafter defined) for a certificate relates to a designated project and subject to an impact assessment per the Act, the Commission's powers, duties and functions to prepare a report and submit it to the Minister, are to be performed with the review panel as described in the Impact Assessment Act. The report is to contain a recommendation as to whether or not the certificate should be issued in respect of a pipeline.

Current Assessments

Depending on what stage of the assessment a proponent is at will determine whether the assessment shall be continued under the former CEAA or the new IAA. If the Agency has not collected the necessary information or studies required by the former CEAA before the day on which the new IAA comes into force, the Agency is deemed to have provided the proponent a notice of commencement, and the assessment shall continue as an impact assessment under the IAA.

Canadian Energy Regulator Act ("CERA")

Structure

Under the new CERA, a new corporation would be established called the Canadian Energy Regulator (the "Regulator"). The Regulator's mandate is to make transparent decisions, orders and recommendations with respect to pipelines, power lines, off-shore renewable energy projects and abandoned pipelines; to oversee the construction, operation and abandonment of pipeline and interjurisdictional powerlines; to advise and report on energy matters and to provide alternative dispute resolution processes. The board of directors of the Regulator will be composed of five to nine directors, one of whom must be an Indigenous person.10

The Regulator is to have a Commission of up to seven full-time commissioners, one of whom must be an Indigenous person.11 The Commission, like the current NEB, is proposed to be a court of record and would have all the powers, rights and privileges vested in a superior court of record with respect to any matters within its jurisdiction.12 The Commission would have the power to inquire into, hear and determine any matter under the Act on its own initiative. Under the proposed Act, the Commission must issue written reasons for each recommendation it makes to the Governor in Council or the Minister, and each decision or order it makes.13

Duty to consider

Pursuant to the proposed Act, the Commission has a duty to consider any adverse effects that the decision, order or recommendation may have on the rights of the Indigenous peoples of Canada recognized and affirmed by section 35 of the Constitution Act, 1982. Further, any traditional knowledge of the Indigenous peoples of Canada that is provided in confidence to the Regulator is confidential and must not knowingly be disclosed without written consent.14

Abandonment of facilities

The new Act would enact specific legislative provisions with respect to the operation and abandonment of regulated facilities. Specifically, the Commission may, by order, direct the holder to repair, reconstruct or alter part of the regulated facility and direct that the affected part of the regulated facility not be used or be used in accordance with any conditions until the work is done.15 The Regulator may make regulations respecting the design, construction and operation of pipelines and international powerlines, the abandonment of pipelines, respecting surveillance or monitoring of pipelines, respecting abandoned facilities.

The new Act also contains a section dedicated to regulating the abandonment of pipelines. Under that section, a company must not abandon a pipeline unless it obtains an order from the Commission, granting it leave to do so. If a company submits an application to abandon a pipeline, there are requirements to notify owners of lands and hold a public hearing should there be opposition to the abandonment. The company's liability for the abandoned pipeline continues even after leave to abandon has been granted by the Commission.16

Under the new Act, the Orphan Pipelines Account shall be established in the accounts of Canada.17 The surplus generated from an abandoned pipeline shall be calculated in accordance with the Act and subsequent regulations, and paid into the Consolidated Revenue Fund to be credited to the Orphan Pipelines Account, if the Commission considers it appropriate.

Commission's Report

As is the case with the NEB, if the Commission is of the opinion that an application for a certificate in respect of a pipeline is complete, it shall make a report to the Minister containing its recommendation as to whether or not the certificate should be granted. The new legislation requires that the Commission make more extensive considerations than the Board had to under the NEB Act. These additional considerations include:

  • the environmental effects, including any cumulative environmental effects;
  • the safety and security of persons and the protection of property and the environment;
  • the health, social and economic effects, including with respect to the intersection of sex and gender with other identity factors;
  • the interests and concerns of the Indigenous peoples of Canada, including with respect to their current use of lands and resources for traditional purposes;
  • the effects of the rights on the Indigenous peoples of Canada recognized and affirmed by section 35 of the Constitution Act; and
  • environmental agreements entered into by the Government of Canada.18

As was the case with the NEB Act, the Governor in Council must direct the Commission, by order, as to whether or not a certificate be issued.19

A person must not carry on any work or activity to carry on any work related to an offshore renewable energy project or an offshore power line unless that person has been issued authorization by the Commission.20 Further, the Governor in Council may make regulations respecting offshore renewable energy projects and offshore powerlines.21

With respect to lands, the NEB Act stated that consent of Cabinet was required where a company was to occupy or take possession of lands in a First Nations reserve. The new Act removes this power from Cabinet, and instead requires consent of the council of the band when a company is seeking to take possession of, use or occupy lands in a reserve.22

Final decision maker

As mentioned, pipeline projects that require an impact assessment under the IAA are referred to the review panel formed under the IAA, and a report is delivered to the Minister containing a recommendation. Under the new CERA, Cabinet has authority to direct the Commission to approve, deny, or reconsider the application for a certificate or any of its conditions and send back to Cabinet for reconsideration.

Appeals

Appeals from decisions of the designated officer may be brought before the Commission and the Commission has the authority to dismiss or allow the appeal. An appeal from a decision of the Commission on a question of law or jurisdiction only may be brought before the Federal Court of Appeal with the leave of that Court. Leave to appeal must be sought within 30 days after the date of the decision or order appealed from. The new Act would further require that an appeal be brought within 60 days after the day on which leave to appeal is granted.23

Under the Act, proponents may make an application for judicial review with respect to any order made by Cabinet by making an application for leave to the Federal Court of Appeal.

Timelines

  • Reports of the Commission with respect to the granting of certificates must be submitted to the Minister by a time specified by the Lead Commissioner, which must be no longer than 450 days;
  • An order must be made by Cabinet, directing the Commission with respect to the approval, denial or reconsideration of a certificate within 90 days after the day on which the report is submitted to Cabinet;
  • The Commission must comply with Cabinet's order regarding an application for a certificate within 7 days after the day on which it is made;
  • The Commission must decide on whether a licence for the exportation of oil and gas shall be issued within 180 days after the day the applicant has submitted a complete application.

Current Projects

Certificates, licenses and permits issued by the NEB shall continue and unless suspended or revoked under the CERA, shall remain in force as it would have had the CERA not come into force. Applications that are pending before the commencement day are to be taken up before the new Commission and continued in accordance with the old National Energy Board Act.

Summary

In summary, the Bill has largely expanded the scope of considerations that must be taken by both the Agency or the Regulator when considering and conducting impact assessments and issuing certificates to proponents. There has been broad implementation of consideration of the rights of the Indigenous peoples of Canada across both proposed Acts. The structure of the energy regulator in Canada is proposed to have a different structure administratively, but appears to in substance be the same, with Cabinet often having final decision making authority. The Bill has empowered the Minister and Cabinet to enact regulations to expand on some of the provisions in this Act, which will provide for further details to come.

Footnotes

1 SC 2012, c 19, s 52 ("CEAA").

2 S 9.

3 S 11.

4 S 12.

5 S 16(2).

6 S 18.

7 S 22.

8 Part 1, s 43.

9 Part 1, s 58.

10 Part 2, s 14.

11 Part 2, s 26(2).

12 Part 2, s 31.

13 Part 2, s 53, 63.

14 Part 2, s 58.

15 Part 2, s 95.

16 Part 2, s 241.

17 Part 2, s 246.

18 Part 2, s 183.

19 Part 2, s 186.

20 Part 2, s 297.

21 Part 2, s 312.

22 Part 2, s 317.

23 Part 2, s 72.

About BLG

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions