In 2016, the government of Canada began reviews of federal environmental legislation and the National Energy Board (NEB). At the same time, Parliamentary standing committees undertook reviews of changes to federal fisheries and navigable waters laws. Reports from those four processes were released earlier in 2017.
The government released a discussion paper in June that outlines the legislative changes Canada is contemplating in response to the reports. This article highlights key changes in the four areas of potential significance for project proponents.
The discussion paper states that the changes under consideration will be guided by five principles:
- Fair, predictable and transparent environmental assessment and regulatory processes that build on what works;
- Enhanced participation of Indigenous peoples to advance Canada’s commitment to the United Nations Declaration on the Rights of Indigenous Peoples;
- Inclusive and meaningful public engagement;
- Timely and evidence-based decision-making; and
- One project – one assessment, with the scale of assessment aligned with the scale of the project and its potential impacts.
Key changes under consideration in this area include:
- Establishing a single agency for federal environmental assessments, but providing for single, integrated assessments for major energy projects subject to separate regulatory authority;
- Enhanced consideration of cumulative effects of development, through mechanisms like strategic and regional environmental assessments as well as development of national environmental frameworks;
- Maintaining the current project list approach, but providing for processes to revie
- and amend the project list;
- Maintaining legislated assessment timelines, but with flexibility for exceptional circumstances;
- Requiring assessment of impacts on Indigenous peoples, and providing for greater Indigenous participation on assessment boards and revie
- Broadening the scope of environmental assessments to consider economic, social and health impacts;
- Implementing a ne
- early engagement and planning stage that would be led by proponents under direction from Canada;
- Direct engagement between Canada and Indigenous peoples;
- Eliminating the standing test that the NEB has used for decades to determine who can participate in assessments;
- Improving participant funding; and
- Allowing for substitution arrangements with provinces, territories and Indigenous governments.
National Energy Board
The report on modernization of the National Energy Board proposed sweeping changes to the NEB. The discussion paper indicates that Canada is considering adopting a structure for the NEB similar to the Alberta Energy Regulator, with a corporate- style board to direct the NEB, and separate hearing commissioners to revie
projects and make regulatory decisions. The NEB’s legislation would provide for Indigenous representation on the board and among hearing commissioners, and provide for an expanded role for Indigenous peoples in monitoring of pipelines and other energy infrastructure.
The discussion paper proposes expanding the authority to cover renewable energy projects and NEB’s infrastructure in offshore areas under federal jurisdiction. Unlike the modernization report, it does not propose moving NEB headquarters to Ottawa.
The discussion paper does not propose to undo the 2012 changes implemented by the Navigation Protection Act, principally the introduction of a list of waterways subject to the Act’s requirements.
However, the discussion paper does indicate that a process will be added to provide for clear criteria and a transparent process for adding other navigable waters to the schedule.
The discussion paper proposes a return to prohibition of the harmful alteration, disruption or destruction (HADD) of fish habitat without approval. It also proposes clarification of when Fisheries Act authorizations are needed for projects and when they are not, identification of measures to avoid and mitigate harm to habitat through development and enforcement of standards and codes of practice. The paper also indicates that project proponents will be subject to increased reporting requirements in relation to activities affecting fish and fish habitat.
The government is seeking comment on the proposed changes prior to Aug. 28, with the introduction of proposed legislative changes expected in fall 2017.
John Olynyk is partner at Lawson Lundell LLP and a member of the firm’s Aboriginal law, Environmental, and Project Development practice groups. He can be reached at firstname.lastname@example.org.