The federal government’s long-awaited overhaul of key environmental laws (Bill C-69, which implements the new Impact Assessment Act, the Canadian Energy Regulator Act and the Canadian Navigable Waters Act and related regulations) will take effect on August 28, 2019. The Impact Assessment Act will replace the Canadian Environmental Assessment Act, 2012, (CEAA 2012) overhauling the federal environmental assessment (now impact assessment) system. The new regime includes a revised list of activities that will trigger an impact assessment (see the Physical Activities Regulations (Project List)); and some other details of how the impact assessment process will work.
For more information on Bill C-69, please see our February 2018 Blakes Bulletin: Federal Government Overhauls Canadian Environmental Legislation and June 2019 Blakes Bulletin: Federal Government Passes Controversial Environmental Legislation and Tanker Ban.
IMPACT ASSESSMENT TRIGGERS: THE PROJECT LIST
The federal government has released an unofficial version of the Project List with an official version to be published on August 21, 2019, prior to coming into force on August 28, 2019. While the Project List maintains many of the existing categories in CEAA 2012, the list also expands the categories of projects subject to an impact assessment. For example, there is a new trigger for in-situ oil sands extraction facilities or expansions of in-situ oil sands extraction facilities if the facility is located in a province that has not limited the amount of greenhouse gas emissions produced by oil sands sites in that province or, if a greenhouse gas emissions limit exists, but has been reached. Further, many of the thresholds of projects caught by CEAA 2012 have changed. While new thresholds have been introduced (i.e., more projects will be caught), somewhat surprisingly, other thresholds have increased (meaning fewer of these categories of projects will be caught). For example, the trigger for assessment of a new pipeline is now 75 km or more of new right of way, as opposed to 40 km under the CEAA 2012 regime.
After much speculation, discussion and consultation, the publication of the Project List provides some greater certainty to project proponents regarding whether an impact assessment will be required. However, considerable uncertainty remains as the Minister has the ability to, on request or on his or her own initiative, designate a physical activity that is not contained in the Project List if the Minister is of the opinion either that the activity “may cause adverse effects within federal jurisdiction or adverse direct or incidental effects, or public concerns related to those effects warrant the designation”. It remains to be seen what public concerns may warrant such a designation.
PROJECTS THAT DON’T REQUIRE ASSESSMENT, TIME LIMITS AND REQUIRED INFORMATION
The federal government has also released an unofficial version of the Information and Management of Time Limits Regulation (IMTLR). Time limits under the Impact Assessment Act may be suspended (1) upon the proponent’s request; (2) to undertake additional studies or collect additional information related to changes in the design, construction or operation plans for a designated project; and (3) for the collection of certain fees and costs if they are not paid by the proponent within the required time limits. The IMTLR also sets out what information is required to be provided by proponents in the initial description of a designated project. The required information includes a list of all Indigenous groups that may be affected by the project, a summary of engagement undertaken with Indigenous Peoples and the key issues raised during the engagement.
Still to come is clarification of what projects will not require an impact assessment. The Canadian Environmental Assessment Agency is currently seeking input on a ministerial order that will designate proposed classes of projects on federal lands and outside Canada that will only cause insignificant adverse environmental effects and will not be required to undergo an impact assessment. Comments will be accepted until August 21, 2019.
The overhaul of federal environmental laws has been many years in the making, with the most significant being the new impact assessment regime. The release of draft regulations, including the Project List, provide some clarity on the new impact assessment system. However, the Impact Assessment Act contains many discretionary provisions and new mandatory considerations that leave many questions unanswered about how the new system will work in practice.