Canada’s Federal Environmental Assessment Regime

1. Canada’s Federal Environmental Assessment Regime Presentation to the Forum of Federations Environmental Assessment Conference Ottawa, Canada September 14, 2009

2. Constitutional context • The “environment” is not mentioned in Canada’s Constitution, but the courts have confirmed it is a matter of shared responsibility • Each order of government has responsibilities relevant to the environment and environmental assessment • Federal: Navigation and shipping, fisheries, “Indians and land reserved for Indians”, federal lands, migratory birds, nuclear projects, criminal law, and transboundary matters including interprovincial and international pipelines and power transmission lines • Provincial: Local works and undertakings, natural resources and matters of a local or private nature

3. Federal environmental assessment • Original process set out in a 1974 Cabinet Directive • Canadian Environmental Assessment Act (CEAA) came into force in 1995 and is triggered by federal decisions about proposed projects as the proponent, source of funds, land or as a regulator • Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals is a non-legislated process that requires federal departments to conduct strategic environmental assessments • CEAA has limited application North of the 60th parallel where processes arising out of constitutionally protected land claim agreements with Aboriginal peoples have or are being enacted through federal legislation

4. Environmental assessment in Canada’s North FOUR EA REGIMES YESAA – Yukon Environmental & Socio-Economic Assessment Act IFA – Inuvialuit Final Agreement MVRMA – Mackenzie Valley Resource Management Act NLCA – Nunavut Land Claims Agreement

5. Key features of CEAA • Self-assessment process where the federal authority with a decision to make about a project is also responsible for ensuring an environmental assessment is conducted • All projects require an environmental assessment unless otherwise excluded through regulation • About 6000-7000 environmental assessments per year – over 99% as “screenings” • More significant projects assessed through comprehensive study or review panel • Responsible authority determines the “scope” of the project to be assessed – nature of the federal decision and extent of jurisdiction may see assessment limited to a specific project component

6. Key features of CEAA • Use of independent review panels, including joint review panels with other jurisdictions, that conduct public hearings to assess large, controversial projects • Participant funding for assessments of larger projects via comprehensive study or review panel • Requirement to assess cumulative environmental effects • Recent efforts to integrate, into environmental assessments, the legal duty to consult Aboriginal peoples about potential impacts on their existing or potential rights

7. Managing federal-provincial interactions Canada-wide Accord on Environmental Harmonization (1998) Environmental Assessment Sub-Agreement Bilateral Agreement with Quebec (which did not sign the Canada-wide Accord) Bilateral Agreements with 5 provinces Project-specific arrangements with all provinces (joint review panels, integrated information requirements, etc)

8. Managing federal-provincial interactions • Cooperative model where a single environmental assessment is intended to meet the requirements of both jurisdictions • Both federal and provincial governments make decisions based on results of cooperative assessment • Canadian Environmental Assessment Agency is the “federal coordinator” when projects involve both orders of government • Six regional offices have close and productive relationships with their provincial counterparts

10. Challenges • Working with ten jurisdictions that have different requirements and approaches to environmental assessment. Examples include • Different legislated timelines that apply at various points in the process • Variations in public participation opportunities • Some jurisdictions rely heavily on public hearings/review panels for significant projects while others are reluctant to use this form of assessment • Different technical requirements – e.g. whether assessment of cumulative environmental effects is required • Federal diffusion of responsibility means several departments may interact with a province and the project proponent during an assessment • Federal delays can put the CEAA assessment out of sequence with provincial reviews making it difficult to coordinate

11. Recent federal efforts to improve status quo • Cabinet Directive on Implementing the Canadian Environmental Assessment Act • Cabinet Directive on Improving the Performance of the Regulatory System for Major Resource Projects and establishment of the Major Projects Management Office in Natural Resources Canada • Regulations temporarily (until March 2011) allow provincial processes to substitute for federal requirements for public infrastructure projects under the government’s Economic Action lan

12. Possible options for the longer-term 1. Maintain current cooperative model with adjustments to the federal and provincial processes to prevent delays 2. Allow the process of one jurisdiction to substitute for the requirements of another leaving the environmental assessment to the government that is “best situated” 3. Nationally consistent environmental assessment process(es) or standard

13. Considerations • Some provinces are calling for transfer of decision making in addition to substitution of process • Certain observers have noted that a single national process or standardization is potentially the most desirable approach to inter-jurisdictional coordination (e.g. External Advisory Committee on Smart Regulation 2004; Fitzpatrick and Sinclair, 2009) • However, standardization has historically been inhibited by existing variability in approaches across Canada and jurisdictions’ relative comfort with their processes • Stakeholder groups are split on optimal approach for federal-provincial cooperation and integration

14. Looking ahead • Forthcoming Supreme Court decisions on two cases (Vanadium, Red Chris) may bring additional clarity as to what constitutes federal jurisdiction • Canadian Council of Ministers of the Environment will be considering a report on options to further achieve the goal of “one project-one assessment” • Comprehensive review of CEAA by Parliamentary Committee in 2010-2011 will provide an opportunity to examine different models