A(nother) New Federal Regime for Assessing Interprovincial Pipeline Projects: The Proposed Impact Assessment Act

I. INTRODUCTION

On February 8, 2018, after nearly two years of expert panel and parliamentary committee review,1 the federal Liberal government tabled 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.2 As further set out below, the proposed Impact Assessment Act (IAA) can be described as a bulked-up version of the current Canadian Environmental Assessment Act, 20123 (CEAA, 2012). Like CEAA, 2012, the IAA is built around a designated project list rather than being triggered by federal decision-making generally (as the original Canadian Environmental Assessment Act was).4 The main differences include a new “planning phase” where before there was only a screening decision,5 the elimination of any standing test for public participation,6 and an expansion of the scope of assessments, including not just environmental effects but also social, economic, and health effects that fall within Parliament’s legislative jurisdiction.7 The federal government will also have to consider, among other things, a project’s contribution to sustainability8 and whether it contributes to or hinders Canada’s ability to meet its climate change commitments.9

There has already been considerable commentary about Bill C-69, most of which is focused on the IAA and the Canadian Energy Regulator Act (CERA).10 The Standing Committee on Environment and Sustainable Development (ENVI) began its own review of the legislation at the end of March 2018 and was scheduled to complete its clause-by-clause review by May 24, 2018.11 The purpose of this article is to explore those changes that are relevant to the assessment of interprovincial pipelines. Bearing in mind that Bill C-69 is ultimately a response to the previous Conservative government’s 2012 omnibus budget bills,12 it should not come as a surprise that the IAA will undo many of the changes brought about by that legislation, including the exclusive role that it gave the National Energy Board (NEB) (soon to be the Canadian Energy Regulator, or CER) with respect to the assessment of interprovincial pipeline projects.

The paper is organized as follows. The next part sets out the relevant provisions of the current CEAA, 2012 regime as well as the jurisprudence with respect to those provisions. This is followed by an overview of the proposed regime under the IAA. The paper concludes with some commentary with respect to both regimes.

II. THE ASSESSMENT OF INTER-PROVINCIAL PIPELINE PROJECTS PURSUANT TO CEAA, 2012

As noted above, pursuant to section 15 of CEAA, 2012, the NEB is one of four “responsible authorities,” alongside the Canadian Environmental Assessment Agency (the Agency) and the Canadian Nuclear Safety Commission (CNSC), responsible for conducting environmental assessments. Sections 17 – 27 set out various rules of general application including the factors that must be considered in an environmental assessment,13 who determines the scope of those factors,14 a duty of assistance on federal authorities with expert or specialist knowledge,15 and the power to require the collection of additional information.16 Sections 28 – 32, however, set out specific rules for assessments by the NEB.

Section 28 requires the NEB to ensure that any “interested party” is provided with an opportunity to participate in the environmental assessment. CEAA, 2012 defines interested parties as those that, in a responsible authority’s opinion, are directly affected by the carrying out of the designated project or if, in its opinion, the person has relevant information or expertise.”17 The term “directly affected” is common in much of Alberta’s environmental legislation and is generally understood as describing some kind of personal interest, such as an effect on private land, with a certain degree of proximity to a project.18 Confronted with essentially the same wording,19 the Federal Court of Appeal in Forest Ethics Advocacy Assn. v. National Energy Board20 held that the NEB “is entitled to a significant margin of appreciation in the circumstances…”21 and upheld the NEB’s denial of participation to Ms. Donna Sinclair. Ms. Sinclair’s concerns with respect to Enbridge’s Line 9 project were primarily in relation to climate change, which the NEB had determined to be “irrelevant” to its review.22

Section 29 requires the NEB to prepare a “report concerning the environmental assessment” of the project, setting out its recommendation with respect to the likelihood, or not, of the project resulting in significant adverse environmental effects and any follow-up programs to be implemented. It also directs that this report be submitted to the Minister of Natural Resources at the same time as the NEB submits its report pursuant to National Energy Board Act subsection 52(1) (recommending, or not, the issuance of a Certificate of Public Convenience and Necessity).23 Finally, and as further discussed below, subsection 29(3) sets out a privative clause, stating that with the exception of the processes set out in section 30 and 31, the NEB’s environmental assessment report is “final and conclusive.”24

Section 30 sets out a process for the Governor in Council (i.e. Cabinet) to refer back to the NEB any of its recommendations for reconsideration, and gives Cabinet the power to direct the NEB to take into account any specified factors, as well as to impose a time limit within which the NEB must complete its reconsideration. As in section 29, subsection 30(5) states that the NEB’s reconsideration report is “final and conclusive.”25

These provisions were interpreted in Gitxaala Nation v. Canada26 – the litigation surrounding Enbridge’s Northern Gateway pipeline.27 As noted by the Federal Court of Appeal, Cabinet had three options upon receipt of both the CEAA, 2012 and NEBA reports with respect to that project: (1) it could “direct the Board to issue a certificate in respect of the pipeline or any part of it and to make the certificate subject to the terms and conditions set out in the report”; (2) it could “direct the Board to dismiss the application for a certificate”; or (3) it could ask the Board to reconsider its recommendations in its report or any terms and conditions, or both.28

The-then federal Cabinet proceeded with the first option.29 The NEB’s Joint Review Panel report, Cabinet’s decision based on that report, and Northern Gateway’s section 52 certificates were all subsequently challenged by First Nations and environmental groups.30 As is now widely know, the Federal Court of Appeal ultimately allowed the First Nations’ applications for judicial review, finding that the federal government had failed to meet its constitutional duty during the post-report consultation stage.31 The environmental groups’ applications, however, were all dismissed. According to Stratas J.A. for the majority, the statutory scheme is such that the federal Cabinet alone determines whether the NEB’s environmental assessment report meets the requirements of CEAA, 2012:

[120] The legislative scheme shows that for the purposes of review the only meaningful decision-maker is the Governor in Council…

[122] In particular, the environmental assessment under the Canadian Environmental Assessment Act, 2012 plays no role other than assisting in the development of recommendations submitted to the Governor in Council so it can consider the content of any decision statement and whether, overall, it should direct that a certificate approving the project be issued.

[123] This is a different role—a much attenuated role—from the role played by environmental assessments under other federal decision-making regimes. It is not for us to opine on the appropriateness of the policy expressed and implemented in this legislative scheme. Rather, we are to read legislation as it is written.

[124] Under this legislative scheme, the Governor in Council alone is to determine whether the process of assembling, analyzing, assessing and studying is so deficient that the report submitted does not qualify as a “report” within the meaning of the legislation:

In the case of the report or portion of the report setting out the environmental assessment, subsection 29(3) of the Canadian Environmental Assessment Act, 2012 provides that it is “final and conclusive” …

[125] In the matter before us, several parties brought applications for judicial review against the Report of the Joint Review Panel. Within this legislative scheme, those applications for judicial review did not lie. No decisions about legal or practical interests had been made. Under this legislative scheme, as set out above, any deficiency in the Report of the Joint Review Panel was to be considered only by the Governor in Council, not this Court. It follows that these applications for judicial review should be dismissed.32

As further discussed in Part IV, this approach represents a significant departure from the established jurisprudence that, as prerequisites to subsequent government approvals, environmental assessment reports are directly reviewable for the purposes of determining their lawfulness.33 A very restricted scope of review (e.g. to certain questions of law) could perhaps be defended on the grounds of a strong privative clause,34 but then the privative clause contained in CEAA, 2012 is not particularly strong. More importantly, Stratas J.A. appeared less influenced by privative clauses than by the fact that the Cabinet was the sole decision-maker. This, however, is generally the case in the environmental assessments: they are primarily recommendatory but their lawful completion is also required to confer jurisdiction on subsequent decision-makers.35

In any event, the only decision to review, according to Stratas J.A., was Cabinet’s NEBA section 54 Order-in-Council directing the NEB to grant Enbridge its certificates. With respect to this decision, several of the parties sought to apply the Federal Court of Appeal’s decision in Council of the Innu of Ekuanitshit v. Canada (Attorney General)36 as setting out the applicable legal framework for challenging Cabinet decision-making following a CEAA panel report. Stratas J.A., however, distinguished Ekuanitshit and chose not to follow it.37 In addition to what he thought were two very different legislative regimes, Stratas J.A. was of the view that Cabinet approval of a hydroelectric dam project found likely to result in significant adverse environmental effects (as in Ekuanitshit) was somehow different than the approval of an interprovincial pipeline that was also found likely to result in significant adverse environmental effects:

[138] The standard of review of the decision of the Governor in Council in Ekuanitshit may make sense where this Court is reviewing a decision by the Governor in Council to approve a decision made by others based on an environmental assessment. The Governor in Council’s decision is based largely on the environmental assessment. A broader range of policy and other diffuse considerations do not bear significantly in the decision…

[139] In the case at bar, however, the Governor in Council’s decision—the Order in Council—is the product of its consideration of recommendations made to it in the report. The decision is not simply a consideration of an environmental assessment. And the recommendations made to the Governor in Council cover much more than matters disclosed by the environmental assessment—instead, a number of matters of a polycentric and diffuse kind.

[140] In conducting its assessment, the Governor in Council has to balance a broad variety of matters, most of which are more properly within the realm of the executive, such as economic, social, cultural, environmental and political matters. It will be recalled that under subsection 52(2), matters such as these must be included in the report that is reviewed by the Governor in Council.38

Consequently, the majority concluded that it “must give the Governor in Council the widest margin of appreciation over these questions,” and was “not persuaded that the Governor in Council’s decision was unreasonable on the basis of administrative law principles.”39

III. THE ASSESSMENT OF INTER-PROVINCIAL PIPELINE PROJECTS PURSUANT TO THE PROPOSED IMPACT ASSESSMENT ACT

As noted at the outset, probably the most significant difference between CEAA, 2012 and the IAA is that the NEB will no longer be a responsible authority with exclusive jurisdiction over the assessment of interprovincial pipelines. This part of the paper begins with this difference and then considers the main elements of each of the proposed impact assessment phases: planning, assessment, and decision-making.

A. Joint Review Panels with the Canadian Energy Regulator

Under the IAA, designated projects regulated by the Canadian Energy Regulator will be assessed by review panels.40 Pursuant to subsection 39(2), such panels would be federal only, without the option of joint review panels with other interested jurisdictions.41 Sections 47 – 50 set out several additional rules, including the creation of a roster of commissioners under the Canadian Energy Regulator Act who would be eligible to sit on such panels.42 Like CEAA, 2012, subsection 51(3) of the IAA makes clear that such panels will carry out their duties in conjunction with their duties under the proposed Canadian Energy Regulator Act.43

While obviously a departure from CEAA, 2012, it should be noted that this scheme is essentially a return to the pre-2012 status quo. Northern Gateway, it bears recalling, was assessed by a joint review panel. With respect to impact assessment, panels’ duties will be as follows:

  1. conduct an impact assessment of the designated project;
  2. ensure that the information that it uses when conducting the impact assessment is made available to the public;
  3. hold hearings in a manner that offers the public an opportunity to participate in the impact assessment;
  4. prepare a report with respect to the impact assessment that
    1. sets out the effects that, in the opinion of the review panel, are likely to be caused by the carrying out of the designated project,
    2. indicates which of the effects referred to in subparagraph (i) are adverse effects within federal jurisdiction and which are adverse direct or incidental effects, and specifies the extent to which those effects are adverse,
    3. sets out a summary of any comments received from the public, and
    4. sets out the review panel’s rationale, conclusions and recommendations, including conclusions and recommendations with respect to any mitigation measures and follow-up program;
  5. submit the report with respect to the impact assessment to the Minister; and
  6. on the Minister’s request, clarify any of the conclusions and recommendations set out in its report with respect to the impact assessment.44

Amongst other things, the return to review panels should mean that Stratas J.A.’s unique approach to reviewing assessments by the NEB, i.e. that they are not directly reviewable, will no longer apply. There is some ambiguity on this front, however, because of related provisions in the proposed CERA, and sections 183 to 185 in particular.

Section 183 sets out the general rules for applications for certificates of public convenience and necessity, including additional direction to the CER in terms of the factors to be considered,45 opportunities for “representations by the public,”46 time limits,47 and – of particular relevance to the discussion here – a privative clause at 183(11) to the effect that, subject to a reconsideration process at section 184,48 CER reports are “final and conclusive.”49 Section 185 then modifies those rules for projects that are designated under the IAA, as follows:

185If the application for a certificate relates to a designated project, as defined in section 2 of the Impact Assessment Act, that is subject to an impact assessment under that Act,

  1. the Commission’s powers, duties and functions under section 182, subsections 183(1) and (2) and section 184 are to be exercised and performed by a review panel established under subsection 47(1) of that Act;
  2. in subsections 183(1) and 184(5), a reference to the Minister is to be read as a reference to the Minister and the Minister of the Environment;
  3. the report referred to in subsection 183(1) is to be submitted within the time limit established under section 37 of that Act;
  4. subsections 183(3) to (10) do not apply; and
  5. subsection 189(1) applies with respect to the review panel.50

Thus, the review panel tasked with the assessment under the IAA will also carry out the CER’s duties with respect to reviewing applications for certificates of public convenience and necessity, with some modifications. While subsections 183(3) – (10) will cease to apply (including the CERA-specific rules for public participation and timelines), the rules with respect to reconsideration at section 184 and the privative clause at subsection 183(11) will continue to apply, presumably to a single report that is intended to fulfill the requirements of both the IAA and the CERA. Whether this regime is sufficiently different from the CEAA, 2012 regime to displace Gitxaala’s posture of extreme deference is unclear and will probably only be resolved by litigation, if and when the time comes.

B. The Planning Phase

In what appears to be one of the few substantive recommendations of the Expert Panel on Environmental Assessment adopted by the federal government,51 impact assessment in Canada will soon have three phases as opposed to the conventional two: a new planning phase, an assessment phase, and a decision-making phase. According to the Expert Panel on Environmental Assessment Processes,

[a] Planning Phase should lead to a more effective and efficient process. In the development of projects today, some proponents may already undertake a conceptual Planning Phase, prior to the initiation of the current assessment process. Bringing this conceptual Planning Phase into the formal IA process would aid both proponents and communities by helping facilitate relationship building and trust. It would also provide clarity to the proponent early in the process with regard to the main issues of concern. For communities and Indigenous Groups, the Planning Phase would allow them to identify important information that can be inputted into the IA.52

As captured in the IAA, this new planning phase appears to be primarily a bulked-up version of the initial “screening decision” made under the current regime with respect to designated projects other than pipelines.53 Pursuant to sections 8 – 10 of CEAA, 2012, the proponent of a designated project has an obligation to submit a project description to the Agency, following which the Agency makes a determination as to whether an environmental assessment is required. Under the IAA, this determination will apply to all projects, will involve a greater degree of public participation54 and will require an offer to consult with other relevant jurisdictions and Indigenous groups.55 Following such consultation, the Agency will provide the proponent with a list of issues that it considers relevant. The list will be posted on the Registry and the proponent will be required to respond with a detailed description of its project, including any information set out in the relevant regulations.56

At this juncture (and as is currently the case under CEAA, 2012), the Agency will make a decision, following consideration of specified factors,57 as to whether an impact assessment is required. If one is required, the entire planning phase is to take 180 days from the time that the proponent posted its initial project description.58 This stands in contrast to the current screening decision under CEAA, 2012, which must be made 45 days after a project description is deemed complete. It is hard to glean much else from the legislation, but further details are currently being sorted out (e.g. the Agency is currently consulting on proposed Information and Time Management Regulations).59

In some respects, this new planning phase appears similar not only to CEAA, 2012 but also to the process that applied to “comprehensive studies” under the original CEAA following amendments in 2003. This included public consultation on the scope of the project to be assessed, the scope of factors to be considered, and the “ability of the comprehensive study to address issues relating to the project.”60

C. The Assessment Phase

As foreshadowed by its title, the proposed regime is no longer focused primarily on adverse environmental effects and their significance. Pursuant to section 2, “effects within federal jurisdiction” include not only environmental effects but also “any change to a health, social or economic matter that is within the legislative authority of Parliament that is set out in Schedule 3.”61 Schedule 3 has yet to be populated.

The mandatory list of factors to be considered in the course of an impact assessment has also been expanded.62 Table 1 compares the list of factors to be considered pursuant to both CEAA, 2012 and the IAA:

Table 1: Factors to be Considered under CEAA, 2012 and the IAA

 

CEAA, 2012 IAA
  1. the environmental effects of the designated project, including the environmental effects of malfunctions or accidents that may occur in connection with the designated project and any cumulative environmental effects that are likely to result from the designated project in combination with other physical activities that have been or will be carried out;
  2. the significance of the effects referred to in paragraph (a);
  3. comments from the public — or, with respect to a designated project that requires that a certificate be issued in accordance with an order made under section 54 of the National Energy Board Act, any interested party — that are received in accordance with this Act;
  4. mitigation measures that are technically and economically feasible and that would mitigate any significant adverse environmental effects of the designated project;
  5. the requirements of the follow-up program in respect of the designated project;
  6. the purpose of the designated project;
  7. alternative means of carrying out the designated project that are technically and economically feasible and the environmental effects of any such alternative means;
  8. any change to the designated project that may be caused by the environment;
  9. the results of any relevant study conducted by a committee established under section 73 or 74; and
  10. any other matter relevant to the environmental assessment that the responsible authority, or — if the environmental assessment is referred to a review panel — the Minister, requires to be taken into account.
  1. the effects of the designated project, including
    1. the effects of malfunctions or accidents that may occur in connection with the designated project,
    2. any cumulative effects that are likely to result from the designated project in combination with other physical activities that have been or will be carried out, and
    3. the result of any interaction between those effects;
  2. mitigation measures that are technically and economically feasible and that would mitigate any adverse effects of the designated project;
  3. the impact that the designated project may have on any Indigenous group and any adverse impact that the designated project may have on the rights of the Indigenous peoples of Canada recognized and affirmed by section 35 of the Constitution Act, 1982;
  4. the purpose of and need for the designated project;
  5. alternative means of carrying out the designated project that are technically and economically feasible, including through the use of best available technologies, and the effects of those means;
  6. any alternatives to the designated project;
  7. traditional knowledge of the Indigenous peoples of Canada provided with respect to the designated project;
  8. the extent to which the designated project contributes to sustainability;
  9. the extent to which the effects of the designated project hinder or contribute to the Government of Canada’s ability to meet its environmental obligations and its commitments in respect of climate change;
  10. any change to the designated project that may be caused by the environment;
  11. the requirements of the follow-up program in respect of the designated project;
  12. considerations related to Indigenous cultures raised with respect to the designated project;
  13. community knowledge provided with respect to the designated project;
  14. comments received from the public;
  15. comments from a jurisdiction that are received in the course of consultations conducted under section 21;
  16. any relevant assessment referred to in section 92, 93 or 95;
  17. any assessment of the effects of the designated project that is conducted by or on behalf of an Indigenous governing body and that is provided with respect to the designated project;
  18. any study or plan that is conducted or prepared by a jurisdiction, that is in respect of a region related to the designated project and that has been provided with respect to the project;
  19. the intersection of sex and gender with other identity factors; and
  20. any other matter relevant to the impact assessment that the Agency or — if the impact assessment is referred to a review panel — the Minister requires to be taken into account.

 

Some of these factors, such as impacts on Indigenous rights (paragraph 22(1)(c)), are essentially a codification of current law,63 while others do expand that which is currently considered when reviewing a project, including alternatives to the project (paragraph 22(1)(f)) (rather than merely alternative means, as under CEAA, 2012), traditional knowledge of Canada’s Indigenous peoples (paragraph 22(1)(g)) (discretionary under CEAA, 2012), a project’s contribution to sustainability (paragraph 22(1)(h)) and whether it hinders or contributes to Canada’s attainment of its climate change commitments (paragraph 22(1)(i)). As noted above, climate change was explicitly excluded from the NEB’s review of Enbridge’s Line 9 project.

Determining the scope of these factors, however, will remain at the discretion of the Agency or the Minister.64 And notwithstanding the additional factors to be considered, the IAA imposes a 600 day time limit on review panels.65

D. The Decision-Making Phase

Finally, with respect to the decision-making stage, the IAA more or less retains CEAA, 2012’s political decision-making structure. Review panels will submit their reports to the Minister of Environment and Climate Change (and, in the case of pipelines, the Minister of Natural Resources), who must then refer the matter of determining whether the project is “in the public interest” to Cabinet.66 However, the IAA has abandoned both CEAAs’ concept of “significance” as the dividing line here. Rather, Cabinet will have to consider the following factors:

(a) the extent to which the designated project contributes to sustainability;

(b) the extent to which the adverse effects within federal jurisdiction and the adverse direct or incidental effects that are indicated in the impact assessment report in respect of the designated project are adverse;

(c) the implementation of the mitigation measures that the Minister or the Governor in Council, as the case may be, considers appropriate;

(d) the impact that the designated project may have on any Indigenous group and any adverse impact that the designated project may have on the rights of the Indigenous peoples of Canada recognized and affirmed by section 35 of the Constitution Act, 1982; and

(e) the extent to which the effects of the designated project hinder or contribute to the Government of Canada’s ability to meet its environmental obligations and its commitments in respect of climate change.67

These factors are essentially a subset of the factors that need to be assessed pursuant to section 22 (see Table 1, on page 19), and their consideration will need to be demonstrated through reasons required as part of any subsequent decision-statement.68 As is currently the case under CEAA, 2012, the conditions set out in such decision-statements will form part of the CER’s certificate of public convenience and necessity.69

IV. COMMENTARY

The major differences between CEAA, 2012 and the proposed IAA, insofar as the assessment of interjurisdictional pipelines is concerned, may be summarized as follows:

  • Whereas under CEAA, 2012, the NEB had exclusive responsibility for such assessments, under the IAA that responsibility will be carried out jointly under the terms of a review panel;
  • CEAA, 2012 included a standing test to restrict the extent of public participation, whereas the IAA does not;
  • According to the Federal Court of Appeal in Gitxaala (at least), the effect of sections 29 – 31 of CEAA, 2012 was to immunize the NEB’s environmental assessment reports from judicial scrutiny, whereas the return to review panels under the IAA could re-instate the long and well-established line of jurisprudence that such reports are directly reviewable;7
  • A new planning phase intended to assist in the early identification of key issues and build relationships will be superimposed onto the current CEAA, 2012 screening decision;
  • The scope of assessment under the IAA will be broader, to include not just economic, health and social effects, but also a project’s contributions to sustainability, and whether it will help or hinder Canada’s commitments with respect to climate change;
  • Government decision-making under the IAA will be more robust and transparent than the current “justified in the circumstances” test under CEAA, 2012.

It is, of course, too soon to tell what most of these changes will mean in practice. One exception may be the elimination of the standing test. Professor Shaun Fluker and University of Calgary LLM graduate Nitin Kumar Srivastava examined the application of the CEAA, 2012 standing test across four projects (the New Prosperity Mine, Shell’s Jackpine Mine Expansion, Site C, and Kinder Morgan’s Trans-Mountain Expansion) and found “inconsistent rulings on public participation.”71 The New Prosperity Panel, for example, applied the relatively generous “public interest” standing test from the Supreme Court of Canada’s decision in Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society.72 Even the Kinder Morgan panel granted some degree of public participation opportunities to the vast majority of the over 2,000 individuals who sought it.73 In other words, this may be a case of nothing gained, nothing lost — or not much in any event.

Another change that may already be ripe for comment is the discarding of CEAA, 2012’s specialized regime for assessments by the NEB (sections 28-31, as discussed above), together with Stratas J.A.’s interpretation of it. As noted by Keith B. Bergner at the time, “[r]eframing the NEB/JRP report as a mere recommendation greatly diminishes the role of the regulator and importance of the regulatory hearing process. This seems regrettable. The regulatory processes for such major projects typically occupy a lengthy period of time and require enormous effort from a large number of participants.”74 In addition to seeming regrettable, it also seems wrong: review panels under both the original CEAA and CEAA, 2012 have always played a recommendatory role (i.e. were not actual decision-makers), and yet their reports have always been reviewable.75

Finally, it may be what will remain the same that is as – or perhaps even more – important than what will change. Like all of its predecessors, the IAA refuses to draw an environmental, or any other, bottom line. Consistent with the original theory of environmental assessment, it merely requires government agencies to consider a project’s effects in a transparent manner – on the increasingly shaky assumption that such consideration usually leads to better decision-making.76

 

*Martin Z. Olszynski is an Associate Professor at the University of Calgary, Faculty of Law. He is grateful to Professors Nigel Bankes and David Wright for their comments and suggestions on an earlier draft of this article.

  1. See Canada, Minister of Environment and Climate Change, Building Common Ground: A New Vision for Impact Assessment in Canada, by the Expert Panel for the Review of Environmental Assessment Processes, (Ottawa: Canada Environmental Assessment Agency, 2017), online: <https://www.canada.ca/en/services/environment/conservation/assessments/environmental-reviews/environmental-assessment-processes/building-common-ground.html> [Building Common Ground]; Natural Resources Canada, Forward, Together: Enabling Canada’s Clean, Safe and Secure Energy Future, by the Expert Panel on the Modernization of the National Energy Board, (Ottawa: NRCan, 2017), online: <https://www.nrcan.gc.ca/sites/www.nrcan.gc.ca/files/pdf/NEB-Modernization-Report-EN-WebReady.pdf>; House of Commons, Standing Committee on Fisheries and Oceans, Review of Changes Made in 2012 to the Fisheries Act: Enhancing the Protection of Fish and Fish Habitat and the Management of Canadian Fisheries (February 2017) (Chair: Scott Simms); House of Commons, Standing Committee on Transport, Infrastructure and Communities, A Study of the Navigation Protection Act (March 2017) (Chair: Hon. Judy A. Sgro).
  2. 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, 1st Sess, 42nd Parl, 2018 (current version) [referred to herein as IAA or CERA, as the case may be].
  3. Canadian Environmental Assessment Act, 2012, SC 2012, c 19, s 52 [CEAA, 2012].
  4. Canadian Environmental Assessment Act, SC 1992 c 37 [CEAA].
  5. For the new planning phase, see IAA, supra note 2, ss 10 – 20, further discussed in Part IV of this article. For the screening provisions of CEAA, 2012, see ss 8 – 10.
  6. See CEAA, 2012, supra note 3, subs 2(2) for the definition of “interested party,” which is further discussed in Part II.
  7. IAA, supra note 2, s 2 (definition of effects).
  8. Ibid, ss 22, 63. Sustainability is defined in s 2 as “the ability to protect the environment, contribute to the social and economic well-being of the people of Canada and preserve their health in a manner that benefits present and future generations.”
  9. Ibid.
  10. See e.g. Martin Olszynski “In Search of #BetterRules: An Overview of Federal Environmental Bills C-68 and C-69” (15 February 2018), ABlawg (blog), online: <http://ablawg.ca/wp-content/uploads/2018/02/Blog_MO_Bill68_Bill69.pdf>; Nigel Bankes, “Some Things have Changed but Much Remains the Same: the New Canadian Energy Regulator” (15 February 2018), ABlawg (blog), online: <http://ablawg.ca/wp-content/uploads/2018/02/Blog_NB_Much_Remains_The_Same.pdf> ; Martin Ignasiak, Sander Duncanson & Jessica Kennedy, “Changes to federal impact assessments, energy regulator and waterway regulation (Bills C-68 and C-69)” (12 February 2018), Osler (blog), online: <https://www.osler.com/en/resources/regulations/2018/changes-to-federal-impact-assessments-energy-regulator-and-waterway-regulation-bills-c-68-and-c-1>.
  11. Readers should therefore note that the IAA may still be amended from its current form.
  12. Jobs, Growth and Long-TermProsperity Act, SC 2012, c 19.
  13. CEAA, 2012, supra note 4, subs 19(1).
  14. Ibid, subs 19(2).
  15. Ibid, s 20.
  16. Ibid, subs 23(2).
  17. Ibid, s 28, subs 2(2).
  18. See Jody Saunders and Jessica Lim, “The National Energy Board’s Participation Framework: Implementing Changes Resulting from the Jobs, Growth and Long-Term Prosperity Act” (2014) 52:2 Alta L Rev 366.
  19. See s 55.2 of the National Energy Board Act, RSC 1985, c N-7 [NEBA].
  20. Forest Ethics Advocacy Assn v Canada (National Energy Board), 2014 FCA 245 [Forest Ethics].
  21. Ibid, at para 72.
  22. Ibid., at para 64.
  23. CEAA, 2012, supra note 4, s 29.
  24. Ibid, subs 29(3).
  25. Ibid, s 30.
  26. Gitxaala Nation v Canada, 2016 FCA 187 [Gitxaala]. The Federal Court of Appeals’ approach was recently affirmed in Bigstone Cree Nation v. Nova Gas Transmission Ltd., 2018 FCA 89 at para 23: “The legislative scheme for pipeline approvals set out by Parliament in the NEB Act has been aptly summarized in Gitxaala […].”
  27. For commentary on this decision, see Keith B. Bergner, “The Northern Gateway Project and the Federal Court of Appeal: The Regulatory Process and the Crown’s Duty to Consult” (2016) 4:1 Energy Regulation Q, online: < http://www.energyregulationquarterly.ca/case-comments/the-northern-gateway-project-and-the-federal-court-of-appeal-the-regulatory-process-and-the-crowns-duty-to-consult#sthash.5MrRFERk.dpbs>.
  28. Ibid, at para 113.
  29. Gitxaala, supra note 26 at paras 60 – 65.
  30. Ibid at paras 68 – 70.
  31. Ibid at para 327.
  32. Ibid at paras 120 – 125.
  33. See infra note 75. It is also doubtful that ss 29 – 31 had any application in this case, as the Northern Gateway project was commenced as a Joint Review Panel and continued as such pursuant to transitional provisions contained within the Jobs, Growth and Long-Term Prosperity Act, supra note 12. See Martin Olszynski, “Northern Gateway: Federal Court of Appeal applies Wrong Provisions” (5 July 2016), ABlawg (blog), online: <https://ablawg.ca/2016/07/05/northern-gateway-federal-court-of-appeal-wrong-ceaa-provisions/>.
  34. Dunsmuir v. New Brunswick, 2008 SCC 9 at para 31: “The legislative branch of government cannot remove the judiciary’s power to review actions and decisions of administrative bodies for compliance with the constitutional capacities of the government.”
  35. See CEAA, 2012, supra note 4, s 7, IAA supra note 2, s 8, which prohibit federal authorities from exercising any power or performing any duty with respect to a project before an assessment has been completed.
  36. Council of the Innu of Ekuanitshit v Canada (Attorney General), 2014 FCA 189 [Ekuanitshit].
  37. Gitxaala, supra note 26 at paras 132 – 140.
  38. Ibid at paras 138 – 140.
  39. Ibid at paras 155 – 156.
  40. IAA, supra note 2, s 43: “The Minister must refer the impact assessment of a designated project to a review panel if the project includes physical activities that are regulated under … (b) the Canadian Energy Regulator Act.
  41. Ibid, subs 39(2).
  42. Ibid, ss 47-50.
  43. Ibid, subs 51(3).
  44. Ibid, subs  51(1).
  45. CERA, supra note 2, s 183(2)
  46. Ibid, s 183(3).
  47. Ibid, s 183(4).
  48. Ibid, s 184.
  49. Ibid, s 183(11).
  50. Ibid, s 185.
  51. Building Common Ground, supra note 1.
  52. Ibid.
  53. CEAA, 2012, supra note 3, ss 8 – 12. The screening provisions do not apply to projects regulated by the NEB, which automatically required assessment.
  54. IAA, supra note 2, s 11.
  55. Ibid, s 12.
  56. Ibid, subs 14(2).
  57. Ibid, subs 16(2). These are essentially the same factors as under the current CEAA, 2012 regime, with the explicit addition of Indigenous rights.
  58. Ibid, s 18.
  59. See Government of Canada, Public Notice, “Public Comments Invited to support the Development of Regulations under the proposed Impact Assessment Legislation” (8 February 2018), online: <https://www.canada.ca/en/environmental-assessment-agency/news/media-room/public-comments-invited-development-regulations-impact-assessment-legislation.html>.
  60. CEAA, supra note 4 s 21, as it existed between Jun 11, 2006 and Jul 11, 2010. This wording proved pivotal in the Supreme Court of Canada’s decision in MiningWatch Canada v. Canada (Fisheries and Oceans), 2010 SCC 2, and the Court’s conclusion that responsible authorities did not have the power to “scope” projects in such a manner so as to avoid having to carry out a comprehensive study rather than a screening-type assessment.
  61. IAA, supra note 2, s 2.
  62. Ibid, subs 22(1).
  63. See Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, and most recently Clyde River (Hamlet) v. Petroleum GeoServices Inc., 2017 SCC 40.
  64. IAA, supra note 2, subs 22(2).
  65. Ibid, subs 37(1).
  66. Ibid, s 61.
  67. Ibid, s 63.
  68. Ibid, subs 65(2).
  69. Ibid, subs 67(2).
  70. Gitxaala, supra note 26.
  71. Shaun Fluker and Nitin Kumar Srivastava, “Public Participation in Federal Environmental Assessment under the Canadian Environmental Assessment Act 2012: Assessing the Impact of ‘directly affected’” (2016) 29 J Env L & Prac 65.
  72. Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45.
  73. Fluker and Srivastava, supra note 71.
  74. Bergner, supra note 27.
  75. See e.g. Ontario Power Generation Inc v Greenpeace Canada, 2015 FCA 186, Pembina Institute for Appropriate Development v Canada (Attorney General), 2008 FC 302, and especially Alberta Wilderness Assn. v Canada (Fisheries and Oceans Canada), [1999] 1 FCR 483.
  76. See Dan Tarlock, “Is There a There There in Environmental Law” (2004) 19 J Land Use & Envtl L 213.

Leave a Reply