May 3, 2012
Federal Government announces reforms to the federal environmental assessment process
Patrick Duffy and Sean Gibson*
The federal government announced on April 17, 2012 its plan for "Responsible Resource Development" which contains a number of proposals to reform key aspects of the review process for federal environmental assessments.
The reforms are of interest to mining companies operating in Canada as they promise to reduce regulatory burden and provide greater certainty around the timing of regulatory reviews. As an example of the need for reform, the plan notes that the start of the environment review for Areva Resources Canada's uranium mine in Saskatchewan was delayed by 19-months and was further complicated when the lead federal department changed midway through the review.
Simplified and Set Timelines for Environmental Assessments
The government's plan proposes to simplify the current structure of environmental assessments and replace it with two kinds of reviews: 1) a standard environmental assessment, or 2) a review panel. Though details on this proposal are currently lacking, it appears this reform is meant to allow appropriate projects to proceed in a more streamlined fashion through a standard environmental assessment.
The plan also proposes a set of timelines for the government to act within to speed up the environmental assessment process:
While the establishment of binding timelines is a welcome step, our experience with similar timelines in provincial environmental assessment regimes is that they are difficult for a proponent to enforce where a project meets with significant opposition.
- Decisions by the Canadian Environmental Assessment Agency (CEAA) on whether a federal environmental assessment is required will be made within 45 days.
- Standard environmental assessments led by CEAA will have specific timelines of 365 days.
- Panel reviews in regards to projects under the Canadian Environmental Assessment Act will have a 24 month beginning-to-end timeline.
- There will be binding (though currently undefined) timelines for key regulatory permitting processes, including the Fisheries Act, the Species at Risk Act, the Navigable Waters Protection Act, the Canadian Environmental Protection Act and the Nuclear Safety and Control Act.
Consolidated Responsibility for Environmental Assessments
The plan proposes reforms to consolidate responsibility for environmental assessments with the CEAA for most mining projects. This proposal would constitute a significant reform as, currently, over 40 federal government departments and organizations have responsibility for project reviews.
Federal-Provincial Regulatory Equivalency
The plan proposes to provide the federal government the authority, through substitution and equivalency provisions, to allow provincial environmental assessments that meet the substantive requirements of the Canadian Environmental Assessment Act to replace federal assessments, effectively allowing the integration of federal and provincial regulatory regimes. This proposal appears to go further than the agreements for environmental assessment cooperation that are currently in place between the federal government and several provinces.
The need for permits under the federal Fisheries Act is a frequent trigger for a federal environmental assessment. The plan includes a specific commitment to enable equivalency of Fisheries Act regulations with provincial regulations and to allow a single regulator, which could be provincial or federal, to issue authorizations under "key" provisions of the Fisheries Act.
The plan proposes to designate a lead department or agency as a single Crown consultation coordinator for specific project reviews. The plan also proposes to establish specific consultation protocols or agreements with Aboriginal groups in order to clarify the expectations and level of consultation that will/should occur in project reviews. As well, the plan calls for agreements to be executed between the federal and provincial governments to, presumably, create a unified approach to consultation. These proposals should help further two laudable goals: 1) improved relations between the federal/provincial government(s) and Aboriginal groups, and 2) the reduction of delays and uncertainties arising from the legal risks associated with the Crown fulfilling its duty to consult with Aboriginal peoples in regards to conduct that might adversely affect potential or established Aboriginal or Treaty rights.
* Sean Gibson is a Student-at-Law at Stikeman Elliott LLP
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