Federal Government Proposes Changes to Environmental and Regulatory Reviews

Canada’s environmental and regulatory process for approving major projects such as pipelines, mines, power plants and transportation infrastructure may face a significant overhaul in the coming months, according to a discussion paper released on June 21, 2017 by the Government of Canada. The paper summarizes the federal government’s position based on 18 months of public consultation, expert panel reports and Parliamentary studies, and invites Canadians to share their views on the proposed reforms.

Contemplated changes include establishing a single government agency to oversee impact assessments of proposed projects, broadening the scope of impact assessments, increasing the role of Indigenous peoples and traditional knowledge in the assessment and monitoring of these projects, and updating legislation such as the Canadian Environmental Assessment Act, 2012, the National Energy Board Act, the Fisheries Act and the Navigation Protection Act.

The paper identifies three shortfalls in the current system:

  1. a lack of transparency around the science and evidence used to support environmental and regulatory approvals and uncertainty about the role played by Indigenous knowledge;
  2. insufficient protection of Canadian fisheries and waterways; and
  3. inadequate opportunities for meaningful participation by the public and Indigenous peoples in decision-making.

Through the proposed reforms, the government intends to regain public trust, protect the environment, advance reconciliation with Indigenous peoples and ensure good projects go ahead and resources get to market.

For major projects, the new government agency would coordinate a single, integrated impact assessment process with other existing “life-cycle regulators” (i.e. National Energy Board (“NEB”), Canadian Nuclear Safety Commission and Offshore Petroleum Boards). Project proponents would be required to initiate an early planning stage to seek the opinions of the Crown, industry, Indigenous peoples and other interested parties about how the assessment should proceed. The scope of assessments would be broadened to include environmental, economic, social and health factors as well as requiring consistent use of Gender Based Analysis Plus (GBA+), an analytical tool designed to assess how diverse groups may be impacted by the project.

To ensure government accountability, Cabinet will continue to make the final decision about whether to approve a project or not. The government will also continue to use a “one project – one assessment” model to ensure that the assessment and follow-on permitting are as closely aligned as possible.

Changes to the NEB have also been proposed.

The governance structure of the NEB would be modified to create a corporate-style executive board and separate Hearing Commissioners to review projects and provide regulatory authorizations. Board members and Hearing Commissioners would no longer be required to reside in Calgary, Alberta.

To increase opportunities for public participation, the test for “standing” would be eliminated for those wishing to participate in hearings. Indigenous representation within the NEB and Indigenous participation in monitoring pipelines and other energy infrastructure would be increased.

Proposed amendments to the Navigation Protection Act (“NPA”) and the Fisheries Act are intended to reverse some of the changes made to these statutes in 2012 by the Conservative federal government.

For the NPA, the paper proposes increased protections for the public right of navigation on Canadian waterways and a meaningful role for Indigenous peoples in the administration of the regime.

Under the proposed changes to the Fisheries Act, fish habitat protections would be strengthened by implementing modern conservation techniques and safeguards and enhancing Indigenous participation in the protection of fish habitat.  The government also promises to increase public transparency under both the NPA and the Fisheries Act.

Public feedback on the discussion paper will be collected until August 28, 2017.

The government will then reflect on this feedback and continue consulting Canadians as it prepares to make changes to Canada’s environmental assessment and regulatory processes in the fall of 2017.

Because of the general nature of the discussion paper, it is difficult to predict how the proposed changes will impact Canadians. At a minimum, projects requiring environmental and regulatory approval will likely face additional scrutiny during the assessment process. Indigenous groups can anticipate playing an increased role in the approval process for, and perhaps the ongoing monitoring of, major projects.

MLT Aikins would be pleased to assist you or your organization with understanding and navigating the opportunities and challenges presented by the federal government’s proposed reforms.

Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.