Federal Government announces reforms to the Federal Environmental Assessment Process

April 19, 2012

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.

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.

Consolidated Responsibility for Environmental Assessments

The plan proposes reforms to consolidate responsibility for environmental assessments with the CEAA for most projects, or the Canadian Nuclear Safety Commission (CNSC) and the National Energy Board (NEB) for projects within their respective mandates. Joint review panels for projects regulated by the NEB and the CNSC will no longer be required. This proposal would constitute a significant reform as, currently, over 40 federal government departments and organizations have responsibility for project reviews.

As well, the plan proposes to give the federal government the authority to, based on recommendations from the NEB, make the ultimate “go/no go” decision on major pipeline projects in the national interest. This proposal has already attracted attention in the media and could be a major point of contention with environmental groups.

Federal-Provincial Regulatory Equivalency

The plan proposes to provide the 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 a province, the NEB or CNSC, to issue authorizations under “key” provisions of the Fisheries Act.

Aboriginal Consultation

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.

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