What do you have to do to get an environmental assessment?

November 7 Committee proceedings

Helen Cutts Vice-President, Policy Development Sector, Canadian Environmental Assessment Agency

Thank you very much.

My name is Helen Cutts. I'm the vice-president of policy development at the Canadian Environmental Assessment Agency. It's my pleasure to be with you this afternoon. My opening remarks will not take 10 minutes. That will give us more time for questions.

Division 21 in part 4 of the budget implementation act makes a minor technical amendment to the Canadian Environmental Assessment Act, 2012, or CEAA 2012, as it's known in the short form.

In order to provide some context for members of the committee with respect to the amendments proposed by Bill C-45, I will briefly describe the main features of the CEAA 2012.

This new act was brought into force in July shortly after Bill C-38 received royal assent.

These recent changes to federal environmental assessment are part of the responsible resource development plan. The objectives of this plan are to provide for more predictable and timely reviews, to reduce duplication for project reviews, to strengthen environmental protection, and to enhance consultations with aboriginal groups.

CEAA 2012 focuses on major projects. “Designated projects” is the term used in the legislation. Designated projects are identified in the project list regulations. The Minister of the Environment may also require the environmental assessment of a project not on the list. This scheme replaces the “all in unless excluded” approach of the former act.

Responsibility for environmental assessment has also been consolidated with the Canadian Environmental Assessment Agency, the Canadian Nuclear Safety Commission and the National Energy Board. This replaces an approach that saw the act implemented by 40 to 50 federal authorities each year.

There are additional mechanisms for federal-provincial cooperation. A provincial environmental assessment may substitute for the federal process. At the end of the environmental assessment, the Minister of the Environment makes a decision, informed by the provincial report. Before approving substitution, the minister must be satisfied that the core requirements of CEAA 2012 will be met.

The Governor in Council may also declare a provincial environmental assessment to be equivalent, exempting the designated project from application of the act. The conditions for substitution must be met in this case as well.

The Governor in Council must also be satisfied that the province will make a determination as to whether the designated project is likely to cause significant adverse environmental effects. It will ensure implementation of mitigation measures and a follow-up program.

There are now legislative timelines for environmental assessments: 365 days for an assessment by our agency; 24 months for an assessment by a review panel.

The minister may extend timelines by three months. Additional extensions may be granted by the Governor in Council. There is authority for regional environmental assessments that move beyond a project-specific focus. These are intended to assist with the assessment of cumulative environmental effects.

Finally, unlike the former act, CEAA 2012 includes enforcement provisions.

The amendments proposed by Bill C-45 are intended to address minor inconsistencies in the text of CEAA 2012 that have come to our attention over the past four months of implementation.

Clauses 425 to 427, as well as clauses 429 and 431, are intended to ensure concordance between the French and English versions of the act.

Clause 428 corrects an oversight with respect to conditions that can be put in a decision statement. At the end of an environmental assessment, a decision statement is provided to the proponent of a project. This statement sets out the conclusion as to whether the project is likely to cause significant adverse environmental effects. It also sets out conditions that are binding on the proponent; these are mitigation measures and requirements for a follow-up program.

The amendment proposes broader language with respect to the conditions to ensure that a decision statement can include administrative requirements such as reporting on the implementation of mitigation and follow-up.

Clause 430 clarifies that the obligation for federal authorities to ensure their action with respect to projects on federal lands do not cause significant adverse environmental effects is limited to the environmental effects caused by the components of the project that are situated on federal lands.

Finally, clause 432 proposes to close a loophole in the transition provisions. Currently, there is potential for a project to be exempted under the transition provisions even though it would have required an environmental assessment under the former act and would normally be subject to the new act. Where a proponent of a project was advised under the former act that an environmental assessment was not likely required, the transition provisions in CEAA 2012 exempt it from application of the new process.

This exemption would hold, even though a trigger under the former act—that is, a federal decision about a project—might subsequently be identified. The proposed amendment would subject a designated project, exempted under current provisions, to the requirements of the act if it is determined prior to January 1, 2014, that the project requires a federal decision that would have resulted in an environmental assessment under the former act. This amendment would ensure equitable treatment of similar designated projects under two different legislative schemes.