This week, the Government of Canada (Canada) tabled sweeping reforms to federal regulatory regimes relating to the environment and major projects in Canada. Bill C-69, announced on February 8, 2018, proposes several significant changes, including proposals to replace the Canadian Environmental Assessment Act, 2012 with a new Impact Assessment Act, creating a new Canadian Energy Regulator to replace the National Energy Board, and enlarging the protections for navigable waters found in the current Navigation Protection Act (to be re-named the Canadian Navigable Waters Act). Bill C-68, announced just two days earlier on February 6, 2018, proposes significant changes to the federal Fisheries Act, which will, among other things, strengthen the fish protection and pollution-prevention provisions in that Act.
Canada has marketed these changes as an effort to restore public trust in the federal approval process for major projects and the robustness of federal environmental protections. Bill C-68 and C-69 together represent significant changes to the federal regulatory scheme in respect of the environment and major projects in Canada, of which all stakeholders and project proponents should be aware.
New Impact Assessment Act and Impact Assessment Agency
Under Bill C-69, the Canadian Environmental Assessment Act will be replaced by the Impact Assessment Act. The legislation is aimed at broadening project reviews from current environmentally-focused assessments to include a broader focus on sustainability, with enhanced transparency, increased opportunities for public participation and more consultation required with Indigenous peoples throughout the impact assessment process. A wider range of effects will be considered in the impact assessment process and when final approvals are being considered - including impacts to health, society, gender, climate change, Indigenous peoples, jobs, and the economy.
In many cases, impact assessments in respect of designated projects will be conducted by a new Impact Assessment Agency (Agency) established under the Act, which will take a more active role in directing the impact assessment process as compared to the existing Canadian Environmental Assessment Agency. Alternatively, a designated project may be referred to another jurisdiction’s environmental assessment process through substitution or to a joint review panel. All final decisions to approve a designated project will be made by the Minister or the federal Cabinet, depending on the circumstances.
New Canadian Energy Regulator
Also under Bill C-69, the National Energy Board (NEB) will be replaced by the Canadian Energy Regulator (CER). Like the NEB, the CER will be tasked with regulating interprovincial pipelines, international and interprovincial power lines and offshore renewable energy projects and offshore power lines. The CER will also regulate the traffic, tolls, and tariffs related to the transportation of oil and gas products through interprovincial pipelines, and will be responsible for issuing licences for the international export of oil, natural gas or electricity. The outward goal of this reorganization is to, among other things, shift the NEB’s former role with respect to the approval of major projects to a review panel under the Impact Assessment Act (see above). Like the NEB, the CER will be based in Calgary.
Expansion of the Canadian Navigable Waters Act
Under Bill C-69, the Navigation Protection Act will be renamed the Canadian Navigable Waters Act and will further regulate activities that potentially obstruct travel on navigable waters in Canada (including rivers, lakes, and other waterways). Existing requirements to seek approval before constructing works in or across navigable waters will be extended, covering more projects and more navigable waters. The factors that the Minister must consider when deciding whether to issue an approval have expanded to include consideration of traditional knowledge of Indigenous people as well as comments received from interested persons. Additional protections are proposed for waterways of significance to Indigenous peoples, and there will be increased transparency requirements for any project that may interfere with navigation (including dams). Community members will be given opportunities to comment on a wider range of proposed works, and, in some cases, proponents who are able to address expressed concerns raised by community stakeholders can avoid applying for approval. The Bill provides for additional regulatory enhancement tools and potential liabilities for contraventions are increased.
Changes to the Fisheries Act
The proposed amendments to the Fisheries Act contained in Bill C-68 provide new tools to the federal government to manage fisheries and to safeguard fish and fish habitat from potential environmental harms. In respect of fisheries, Bill C-68 introduces changes to allow the government to respond on a short term and long term basis to protect fish stocks or to pass regulations to benefit independent operators in the inshore commercial fishing industry. More broadly, the proposed amendments also give the federal government greater powers to protect fish habitat and to regulate activities that could potentially harm fish populations and fisheries. The proposed amendments also modernize the federal government’s permitting powers related to potential environmental harms to fish and fish habitat, as well as expand its options to respond creatively when faced with breaches of the Fisheries Act.
Looking Ahead
The changes proposed in Bill C-68 and Bill C-69 must still be passed by Parliament. Until the new rules come into effect, existing laws will continue to apply.
The federal government has stated that this new legislation will increase certainty and strengthen and restore statutory protections that have been loosened or eliminated over time. This may be so, but at the same time the proposed amendments may lessen certainty for investors and project proponents by adding new areas of regulatory attention and substantially altering established processes and regulatory regimes.
Stay tuned for an in-depth series of updates from Fasken on these amendments and their potential impacts on projects, project proponents, Indigenous peoples, and the public.
