COUNTRY REPORT: CANADA Canadian Environmental Asessment Reform: A Glimpse at Regressive Reforms in Canadian Environmental Law Pierre Cloutier de Repentigny*

COUNTRY REPORT: CANADA
 Canadian Environmental Asessment Reform:
A Glimpse at Regressive Reforms in Canadian Environmental Law
Pierre Cloutier de Repentigny*


I derive two main conclusions from this reform relevant for jurists, whether advocates or
academics. The first is that due to the limited scope of CEAA 2012, both in terms of covered
projects and of considered environmental effects, we will have to increasingly pay attention
to provincial environmental assessments. The benefit of a federal state is that federal lacuna
can be partially mitigated through provincial action. Moreover, some provincial governments
might be more willing to lead on environmental matters than the current federal government.
The recent decisions of the Superior Court of Québec concerning the protection of beluga
whales and works conducted for the Energy East pipeline show how provincial regulations
can potentially act as a safeguard for federal inaction.41
The second conclusion is broader. It is easy to think that established environmental
legislation are secured (in French “les aquis”) and to focus our mind on what the next step
forward can be. However, those aquis are, as demonstrated by this report, much more
fragile than one might have thought. We must, as members of the public and as jurists, be
mindful of how quickly decades of progress can be set aside. For the road ahead, it is
worthwhile to start thinking about the best way to protect the environmental aquis from the
changing whims of governments, such as constitutional protection or special parliamentary
procedures, and ensure that environmental reforms, even in times of economic downturn,
does not equate with regression..159 5 IUCNAEL EJournal
One Step Forward, Ten Steps Backward: CEAA 2012
While CEAA 1995 was not perfect, the regime had the advantage of covering a large
number of projects. For example, during the fiscal year of 2004-2005, the federal
government conducted over 6000 screenings and 11 comprehensive studies.23 The first key
change brought by the 2012 reform is the drastic reduction in the number of projects subject
to an environmental assessment. This was firstly done through modification of other
statutes, mainly the Fisheries Act and the Navigable Waters Protection Act (now known as
the Navigation Protection Act), which would have triggered federal environmental
assessments through various approval processes under the old regime.24 Secondly, CEAA
2012 changes completely the scope of environmental assessment by moving away from a
regime applicable to all federal decisions to one where only projects designated by the
government are subject to an assessment. 25 Even when a project is designated, the
Canadian Environmental Assessment Agency has considerable discretion to determine if an
assessment is warranted.26 Environmental assessments used to be the norm, now it seems
they are the exception.27
The second change brought by the enactment of CEAA 2012 is the limitation of
environmental effects to be considered by the responsible authority. While under CEAA
1995 all environmental effects had to be considered, now only effects within the legislative
authority of Parliament are taken into account.28 This is a considerable change to the regime
which limits substantially the effectiveness of federal environmental assessment. 29