Environmental, Indigenous and Natural Resources Blog

Over the past 14 months, the Federal Government has been working to review environmental and regulatory processes and to rebuild public trust in these systems. Our posts of June 26, 2016 and April 7, 2017 discuss the Federal Government’s proposed scope of the review and highlight the recommendations provided by an expert panel with respect to the review. The review focused on three areas: the federal environmental assessment process, modernization of the National Energy Board, and improving protections under the federal Fisheries Act and Navigation Protection Act.

On February 6, 2018, the Federal Government introduced Bill C-68, An Act to amend the Fisheries Act and other Acts in consequence, which includes proposed amendments to restore protections and incorporate safeguards to the Fisheries Act. Two days later, on February 8, 2018, the Federal Government introduced Bill C-69, An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigation Protection Act and to make consequential amendments to other Acts, which, among other things, would enact the Impact Assessment Act and the Canadian Energy Regulator Act, and repeal the National Energy Board Act and the Canadian Environmental Assessment Act, 2012 (“CEAA 2012”). In addition, we anticipate the Federal Government will introduce changes to the triggers for environmental assessments, which are currently prescribed in the Regulations Designating Physical Activities, enacted under CEAA 2012.

This post provides a summary of the key amendments introduced by the Federal Government this week. Over the coming days, we will be posting more in-depth blogs on a range of these topics.

The proposed amendments to the Fisheries Act include:

• restoring protections by returning to comprehensive protection against harming all fish and fish habitat
• strengthening the role of Indigenous peoples in project reviews, monitoring and policy development
• recognizing that decisions can be guided by principles of sustainability, precaution and ecosystem management
• promoting restoration of degraded habitat and rebuilding of depleted fish stocks
• allowing for the better management of large and small projects impacting fish and fish habitat through a new permitting framework and codes of practice
• creating full transparency for projects with a public registry
• creating new fisheries management tools to enhance the protection of fish and ecosystems
• strengthening the long-term protection of marine refuges for biodiversity
• helping ensure that the economic benefits of fishing remain with the licence holders and their community by providing clear ability to enshrine current inshore fisheries policies into regulations
• clarifying and modernizing enforcement powers to address emerging fisheries issues and to align with current provisions in other legislation

The proposed amendments to the federal Environmental Assessment process include:

• creating a new Impact Assessment Agency to review all major projects, assessing environmental, health, social and economic impacts
• shifting from an environmental to a broader impact based assessment process
• establishing a single agency responsible for all assessments, with a goal of one review through coordination with provinces
• updating the project list based on clear criteria
• adding a new early planning and engagement stage
• creating a more predictable and timely process
• making project decisions based on robust science and evidence
• introducing mandatory consideration and protection of Indigenous traditional knowledge alongside science and other evidence

Under CEAA 2012, the Regulations Designating Physical Activities prescribe the physical activities that constitute a “designated project” which may require an environmental assessment.

The proposed amendments to the Navigation Protection Act (renamed the Canadian Navigable Waters Act) include:

• providing a comprehensive definition of navigable water
• introducing mandatory consideration of any adverse effects on the rights of Indigenous peoples of Canada
• providing a list of factors the Minister must consider when deciding whether to issue an approval
• providing a process for addressing navigation-related concerns when an owner proposes to carry out a work in navigable waters that are not listed in the schedule;
• requiring approvals for major work in any navigable water
• providing the Minister with powers to address obstructions in any navigable water

The modernization of the National Energy Board includes:

• restricting the mandate of the National Energy Board
• creating a new body (the Canadian Energy Regulator) to conduct consultation with groups affected by development and will provide regulation of:
• pipelines, abandoned pipelines, and traffic, tolls and tariffs relating to the transmission of oil or gas through pipelines;
• international power lines and certain interprovincial power lines;
• renewable energy projects and power lines in Canada’s offshore; and,
• access to lands.

Throughout the parliamentary process, Canadians have an opportunity to file written submissions to parliamentary committees or contact their Member of Parliament to comment on the proposed amendments.

We recognize that many of our clients and others may wish to submit comments. If you would like assistance in that regard, please contact any of the following lawyers: Brad Armstrong, QC, Christine Kowbel, or Keith Bergner.