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Federal Committee Releases Report on Proposed Changes to Canadian Environmental Assessment Act

Fasken
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Environmental Bulletin

The Standing Committee on Environment and Sustainable Development has issued its report on the statutory review of the Canadian Environmental Assessment Act (CEAA), titled Statutory Review of the Canadian Environmental Assessment Act: Protecting the Environment, Managing our Resources.  The report summarizes the observations made by the Standing Committee during its mandated review of CEAA during which the Committee received both written submissions and oral testimony.  The Committee highlighted that key to their deliberations was whether the current federal process for environmental assessments realised the stated goal of CEAA, namely, to provide an effective means of integrating environmental factors into planning and decision-making processes in a manner that promotes sustainable development.

The Committee's report identified a number of perceived failings of the current process and makes 20 recommendations that relate to the broad themes of improving efficiency and improving outcomes, focusing mainly on the improvement of efficiency.

The lengthiest discussion relates to the need for improved timelines of the CEAA process; noting various testimony referencing concerns with delays and uncertainty in the federal EA process.  In response, the Committee recommended that the Canadian Environmental Assessment Agency (CEA Agency) be made a single point source regulator with the powers and duties of the responsible authority, unless it is determined that another regulator is better suited to perform this role in a given case.

The Committee also identified what it called unnecessary steps in the assessment process.  To address this, the Committee recommended that the roles of the CEA Agency and the Minister be better delineated to eliminate the current two-step process that exists following a Comprehensive Study, under which the Minister is required to make an EA decision and then the responsible authority is required to make a further EA decision on the same project.  The Committee also recommended the elimination of a number of current requirements including the need to provide information on an alternative to a project, and the need for a review to include consideration of the effects of the project on the capacity of renewable resources to meet current and future needs; the latter on the basis that this is a matter that is addressed through provincial laws and regulations. 

Significantly, the Committee recommended the use of binding timelines for all federal environmental assessments.  The Committee found that the current CEAA process is not engaged early enough in the project planning stage; noting that the determination of whether or not a project must be assessed at all is not easily made, and when an assessment is triggered by the need for a federal permit or licence, this is often at the tail end of the project.  Therefore, the Committee recommended that the government ensure that federal decisions relating to triggering are made at the start of review processes. To address the confusion over which projects trigger CEAA, the Committee recommended the replacement of the current triggering provisions with a list of projects that would be subject to assessment, similar to what exists in other EA legislation. 

A further significant concern that was raised in submissions to the Committee was the duplication of work carried out under provincial assessments. To address this, the Standing Committee recommended: that the CEA Agency be empowered to determine that another jurisdiction's assessment process fulfils the requirements of, and therefore is equivalent to, the federal process;  that CEAA be amended to exempt projects from federal assessment where an environmental assessment is required to be conducted under prescribed provincial legislation; and that the federal government work towards improved coordination of post-EA permitting by federal and provincial authorities. Other efficiency improvements include the possibility of using strategic environmental assessments to facilitate project assessments; the broader use of class screenings; and previously conducted environmental assessments.

The Committee also addressed the relationship between Aboriginal consultation and CEAA review, and recommended that the federal government modify the assessment process to better incorporate, coordinate and streamline Aboriginal consultation; work with Aboriginal groups, provinces and territories to define the roles and responsibilities of parties; and design a consultation process that minimizes duplication.

In its discussion of improved outcomes, the Standing Committee identified a need for, and recommended that, environmental assessments include consideration of positive environmental effects of a project in order to promote sustainable development.  The Standing Commission also identified a need to use learnings from past assessments to improve future assessments and recommended that the federal government explore means to ensure that follow-up programs are being implemented and making information from such programs available.

The Report is controversial and, if implemented, many of the Committee's recommendations would result in a dramatic shift in both the federal government's role in EAs and the way that federal EAs under CEAA are conducted.  

In response to the Committee's Report, both the NDP and Liberal Party issued dissenting opinions, effectively suggesting that the Committee did not undertake its review in an appropriate manner. 

The Committee's Report and the dissenting opinions can be found here.

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