This
document was prepared by the staff of the Parliamentary Research Branch
to provide Canadian Parliamentarians with plain language background and
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constitute legal advice or opinion. Please note, the Legislative Summary
describes the bill as of the date shown at the beginning of the document.
For the latest published version of the bill, please consult the parliamentary
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LS-402E
BILL C-19: AN ACT TO AMEND
THE CANADIAN
ENVIRONMENTAL ASSESSMENT ACT
Prepared by:
Monique Hébert
Law and Government Division
17 April 2001
LEGISLATIVE HISTORY OF BILL
C-19
HOUSE
OF COMMONS
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SENATE
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Bill
Stage |
Date |
Bill
Stage |
Date |
First
Reading: |
20 March
2001
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First
Reading: |
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Second
Reading: |
4 June 2001
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Second
Reading: |
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Committee
Report: |
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Committee
Report: |
|
Report
Stage: |
|
Report
Stage: |
|
Third
Reading: |
|
Third
Reading: |
|
Royal Assent:
Statutes of Canada
N.B. Any substantive changes in this Legislative
Summary which have been made since the preceding issue are indicated
in bold print.
|
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TABLE
OF CONTENTS
BACKGROUND
BASIC FEATURES
OF THE CURRENT CANADIAN ENVIRONMENTAL ASSESSMENT ACT
A.
The Project Requirement
B.
The Federal Authority Requirement
C.
The Federal Duty or Function Requirement (the Trigger)
D.
Types of Environmental Assessment
E.
The Factors to be Assessed
F.
The Decision
G.
The Follow-Up Program
H.
The Public Registries
I.
Participant Funding
J.
The Agency
THE
FIVE-YEAR REVIEW AND BILL C-19
DESCRIPTION
Clause
1: Definitions
Clause
2: Purposes of the Act
Clause
3: Excluded Projects
Clause
4: New Heading
Clauses
5 and 6: Assessments by Crown Corporations, Harbour and Port Authorities,
Band Councils,
the
Canadian International Development Agency and Other Designated Entities
Clause
7: Ministerial Orders and Injunctions
Clause
8: Federal Environmental Assessment Coordinator
Clause
9: Community Knowledge, Aboriginal Traditional Knowledge and Regional
Studies
Clause
10: Screenings
Clause
11: Class Screenings
Clause
12: Decision Following a Screening
Clause
13: Comprehensive Studies
Clause
14: Ministers Decision Regarding Projects Subject to a Comprehensive
Study
Clause
15: Mediation
Clause
16: Linguistic Change
Clause
17: Closed Hearings and Non-Disclosure of Harmful Evidence
Clause
18: Decision following a Comprehensive Study, Mediation or Panel
Review
Clause
19: Follow-Up Programs
Clause
20: The Establishment of Joint Review Panels
Clause
21: Attributes of Joint Review Panels
Clauses
22 to 24: Projects with Transboundary Environmental Effects
Clause
25: International Agreements
Clause
26: Canadian Environmental Assessment Registry
Clauses
27 and 28: Quality Assurance Program
Clause
29: Expansion of the Participant Funding Program
Clause
30: Regulation-Making Authority
Clauses
31 and 32: Expanded Objects and Powers of the Canadian Environmental
Assessment Agency
Clause
33: Transitional Provision
Clause
34: Coming into Force
COMMENTARY
APPENDIX:
Selected Sections from the Access to Information Act
BILL C-19, AN ACT TO AMEND
THE CANADIAN
ENVIRONMENTAL ASSESSMENT ACT*
Bill C-19, an
Act to amend the Canadian Environmental Assessment Act, was given first
reading on 20 March 2001. Sponsored by the Minister of the Environment,
this bill amends the Canadian Environmental Assessment Act which
was passed in 1992 and proclaimed in force in 1995.
BACKGROUND
The current
Canadian Environmental Assessment Act (hereinafter the CEAA
or the Act) was initially introduced in the House of Commons as Bill C-78
in June 1990 and was referred for pre-study to a Special Committee of
the House. The bill died in committee when Parliament was prorogued
in May 1991, but it was reinstated as Bill C-13 on 29 May 1991. Bill C-13
was passed and given Royal Assent on 23 June 1992.
The CEAA
replaced the Environmental Assessment and Review Guidelines Order (the
EARP Guidelines), passed by Order in Council on 21 June 1984. These guidelines
governed environmental assessments at the federal level until the new
legislation was brought in.
At the time,
the EARP Guidelines were considered to be mere administrative directives
whose application was discretionary. In the 1992 landmark case of Friends
of the Oldman River Society v. Canada, however, the Supreme
Court of Canada held otherwise. It ruled that the Guidelines had the force
of law and had to be complied with in all cases to which they applied.
This decision
was important not only because of what the Court said about the application
of the EARP Guidelines, but also because of what it said about the constitutional
jurisdiction over environmental assessments in Canada. Having noted that
the environment was not a discrete head of power under the Constitution,
and describing it as an abstruse matter that did not fit comfortably
within the existing division of powers without considerable overlap and
certainty, the Supreme Court of Canada held that the environment was a
shared area of responsibility and that both orders of government could
validly enact environmental measures that related to their respective
spheres of legislative authority under the Constitution.
The Oldman
decision was hailed as a victory for the federal government because, until
then, questions had persisted about whether the federal government could
carry out an environmental assessment of projects thought to be purely
provincial in nature. The issue was laid to rest in
Oldman: if a proposal impinged upon a federal head of power (for
example, the construction by a province of a power dam that might interfere
with the federal responsibility over navigable waters), the federal Parliament
could legitimately enact measures to assess the environmental effects
of such projects, as a valid exercise of its constitutional jurisdiction
over navigation and shipping.
Although federal
legislation to replace the EARP Guidelines was introduced (as Bill C-78)
about 18 months before the Oldman decisionwas rendered,the Courts
judgement provided Parliament with added impetus to pass Bill C-13 which
was still before the House of Commons when the ruling was handed down
on 23 January 1992.
Bill C-13, the
current Canadian Environmental Assessment Act, was passed on 23 June
1992. However, it was not proclaimed in force until January 1995 because
regulations essential to the Acts application had to be developed
beforehand.
BASIC
FEATURES OF THE CURRENT CANADIAN ENVIRONMENTAL ASSESSMENT ACT
The Act requires
that a federal environmental assessment be carried out in relation to
a project for which a federal authority exercises
one or more of the functions set out under section 5.
A.
The Project Requirement
In order for
the Act to apply, there must first be a project. Not all proposals
qualify as a project, only those that come within the definition
of that term in section 2, namely:
-
any proposed
construction, operation, modification, decommissioning, abandonment
or other undertaking in relation to a physical work; or
Even if a proposal
qualifies as a project, it may not be subject to a federal
environmental assessment if it has been excluded under the Exclusion
List Regulations made pursuant to section 59(c). Projects may be excluded
under this section:
B.
The Federal Authority Requirement
As a rule, only
projects involving a federal authority are subject to a federal
environmental assessment. Defined in section 2 of the Act, this term includes
Ministers of the Crown and federal departments, but excludes specified
entities, such as Crown corporations, harbour and port authorities, and
native band councils. However, there is authority to develop regulations
in relation to the excluded entities under section 59(j) to (l).
Projects having
transboundary effects within the meaning of sections 46 to 48 are an exception
to the rule. In their case, an environmental assessment may be carried
out at the Ministers discretion only if there is no federal
authority involvement with the project.
C.
The Federal Duty or Function Requirement (the Trigger)
Projects involving
one or more federal authorities are subject to an environmental assessment
only if the federal authority (or federal authorities) exercises or performs
one or more of the powers, duties or functions (known as triggers)
specified in section 5 of the Act. The requisite triggers include:
-
The land
trigger, where the federal authority grants an interest
in land to enable a project to be carried out (i.e., sell, lease or
otherwise transfer control of land). This trigger accounts for about
11% of federal environmental assessments.
-
The law
list trigger, where in relation to a project thefederal
authority exercises a power or performs a duty or function specified
in the Law List Regulations
made pursuant to section 59(f) (e.g., issues a permit or licence,
etc.). This trigger accounts for about 34% of federal environmental
assessments.
Where the foregoing
requirements (project, federal authority and trigger) are met, section
5 requires that an environmental assessment be carried out on a mandatory
basis. In such cases, the federal authority becomes the responsible
authority for the purposes of the Act (section 11). Where two or
more responsible authorities are involved, they together must determine
the manner in which they propose to discharge their obligations under
the Act. Should they disagree, the Canadian Environmental Assessment Agency
(the Agency), established under section 61, is empowered to advise them
(section 12).
D. Types of Environmental
Assessment
If a project
is subject to an environmental assessment, section 14 of the Act provides
for several types of assessment, the most important of which are:
-
The screening
assessment. The screening, required by section 18 in relation
to all eligible projects that are not on the Comprehensive Study
List Regulations (discussed next) or the Exclusion List Regulations
(discussed earlier), is the most flexible type of assessment. It accommodates
both simple, routine projects as well as larger projects and is done
in over 99% of cases. Pursuant to section 19, a class screeningmay
also be conducted in relation to projects that have common characteristics
and predictable and mitigable environmental effects (e.g., culvert
installations), where the Agency has determined and declared that
a screening report can be used as a model in conducting screenings
of other projects within the same class. So far, the Agency has made
the requisite declaration in relation to only two class screening
reports, although another 15 are currently under development.
-
The comprehensive
study. Governed by sections 21 to 24, the comprehensive study
involves a more in-depth assessment, usually reserved for larger-scale
projects that are likely to have significant adverse environmental
effects and that have been prescribed in the Comprehensive Study
List Regulations made under section 59(d). A total of 27 comprehensive
studies were completed between January 1995 and January 2000, and
19 others were under way.
it is uncertain whether the project is likely to cause significant adverse
environmental effects;
the project is likely to cause significant adverse environmental effects
and it must be determined whether these effects are justified in the
circumstances; or
public concerns warrant investigation by a review panel.
Review panels
may also be established in relation to projects believed to have significant
transboundary adverse environmental effects. Five panel reviews
were completed between January 1995 and January 2000, whereas five more
were under way.
In addition
to these basic types of assessment, section 40 provides for a joint
review panel,where two or more entities carry out an assessment on
a given project. Provision is also made under section 43 for substitute
panels, where another federal authority is authorized to conduct an
environmental assessment under its own process in substitution for a review
panel under the Act.
E.
The Factors to be Assessed
Pursuant to
section 16, all basic forms of assessment (screening, comprehensive study,
panel review or mediation) must include consideration of the following
factors:
Provision
is also made for consideration of the need for the project and alternatives
to it, but this factor is discretionary. Where a comprehensive study,
panel review or mediation is carried out, the following additional factors
must be considered:
F.
The Decision
There are basically
three types of decisions that a responsible authority can make following
a screening assessment (section 20) or a comprehensive study
(section 37):
-
allow the
project to proceed (e.g., provide the funding, issue the permit, etc.)
where, with mitigation, the project is not likely to cause significant
adverse environmental effects;
-
refer the
project to the Minister for mediation or a review panel under specified
circumstances (uncertain adverse environmental effects, public concerns,
significant adverse environmental effects that can be justified in
the circumstances).
In cases involving
mediation or a panel review, the appropriate action (allow or disallow
the project) may be taken only with the approval of the Governor in Council
(sections 37 and 37(1.1)).
G.
The Follow-Up Program
Where, following
the assessment, it is decided that a project should be given the go-ahead
because, with mitigation, the project is not likely to cause significant
adverse environmental effects, or it is likely to cause such effects but
they can be justified in the circumstances, the responsible authority
is required by section 38 to design any follow-up program considered appropriate
and to arrange for the programs implementation. The follow-up
program must comply with any regulations made for this purpose under section
59, but none have been developed.
H.
The Public Registries
Section 55 requires
the establishment of a public registry in relation to every project for
which an environmental assessment was carried out, containing all records
of the assessment except for specified types of third party
information. The responsible authority is required to maintain the public
registry, except where a mediation or panel review has been established,
in which case the Agency is responsible for maintaining the public registry
until the mediator or review panel submits its report to the Minister.
I.
Participant Funding
The Act, although
not yet proclaimed in force, was amended in 1994 (Bill C-56, passed on
15 December 1994) to require the establishment of a participant funding
program in relation to mediations and panel reviews (section 58(1.1)).
Prior to this amendment, the Act left the establishment of such a fund
to the Ministers discretion. It is noteworthy, however, that a participant
funding program was launched in 1990 under the old regime to provide financial
assistance to members of the public and organizations to prepare for and
participate in panel reviews.
J.
The Agency
The Canadian
Environmental Assessment Agency was established under section 61
of the Act to advise and assist the Minister in carrying out his or her
duties and functions under the Act. The Agencys role, set out in
sections 62 and 63, includes the following objects and duties:
THE
FIVE-YEAR REVIEW AND BILL C-19
Section 72 of
the current Act requires the Minister to undertake a comprehensive review
of the provisions and operation of the Act five years after its coming
into force. Within one year after the review is undertaken, the Minister
must submit a report on the review to Parliament, including a statement
of any recommended changes.
The statutory
five-year review was launched on 14 December 1999 with the release of
a discussion paper, entitled Review of the Canadian Environmental Assessment
Act, A Discussion Paper for Public Consultation. A series
of more in-depth studies on specific topics for example, the discussion
paper on the section 5 triggers and the discussion paper on
the assessment of cumulative effects were also made
available to the public.
More than 1,200
Canadians participated in broad public consultations that took place between
December 1999 and March 2000. Parallel discussions were also held with
Aboriginal organizations. In addition, the Minister and the Agency worked
closely on the five-year review with the Regulatory Advisory Committee
(RAC), a multi-stakeholder advisory body to the Minister, comprising representatives
from industry, environmental organizations, Aboriginal communities and
governments. The provincial and territorial governments also made
a number of specific recommendations for change.
Following these
consultations, the Minister tabled his report in Parliament on 20 March
2001. Entitled Strengthening Environmental Assessment for Canadians,
this report was accompanied by the tabling on the same day of Bill C-19,
An Act to Amend the Canadian Environmental Assessment Act.(1)
The amendments
proposed in Bill C-19 are based on a consideration of the views presented
during the consultation phase. In addition to addressing some of the problems
identified during the Acts five years of operation, the amendments
also take into account the changed political climate for conducting environmental
assessments in this country. Notably, a Sub-agreement on Environmental
Assessment was developed under the Canada-Wide Accord on Environmental
Harmonization, an environmental cooperation framework agreement signed
in 1998 by all of Canadas Environment Ministers, except that of
Quebec.
The Sub-agreement
on Environmental Assessment applies where two or more governments are
required under their respective legislation to assess the same proposal.
It includes provisions for shared principles, common information elements,
a defined series of assessment stages, and a single assessment and public
hearing process. The Sub-agreement is implemented through bilateral agreements
negotiated between the federal government and individual provinces and
territories. To date, bilateral agreements have been signed with Alberta,
British Columbia, Manitoba and Saskatchewan.
Clause 2 of
Bill C-19 gives effect to this harmonization initiative by specifying
that one of the purposes of the Act is to promote cooperation and
coordinated action between federal and provincial governments with respect
to environmental assessment processes for projects.
The news release
issued on 20 March to announce the tabling of Bill C-19 indicated that
the proposed changes in the bill would meet the Ministers three
goals for renewing the federal process, namely to:
The goals, it
was stated, would be achieved through proposed changes in key areas, including
the following:
DESCRIPTION
Clause 1: Definitions
Clause 1(1)
revises the definitions of comprehensive study and exclusion
list under current section 2(1) of the Act by adding a reference
to the additional sections that are proposed in the bill to deal with
these matters.
Clause 1(2),
in turn, amends the definition of federal entities in current
section 2(1) by revising the list of entities that are not federal
authorities. In this regard, it eliminates the current reference
to the Toronto Harbour Commissioners constituted pursuant to The Toronto
Harbour Commissioners Act, 1911 from that part of the
definition.
Clause 1(3)
revises paragraph (a) under the current definition of federal lands
by deleting the following words appearing at the end of paragraph (a):
and lands the management of which has been granted to a port authority
under the Canada Marine Act or a not-for-profit corporation that
has entered into an agreement under subsection 80(5) of that Act.
Finally, clause
1(4) introduces a new definition under the Act, that of Registry,
which means the Canadian Environmental Assessment Registry established
under section 55.
Clause 2: Purposes of the
Act
In keeping with
the Ministers stated goals of improving coordination among participants
and of better incorporating Aboriginal perspectives in the assessment
process, clause 2 adds two new legislative purposes to the five purposes
currently set out in section 4 of the Act. The additional purposes
are:
Clause 3: Excluded Projects
Clause 3 amends
section 7 of the Act. This section exempts projects from an environmental
assessment where:
Clause 3 amends
this section by providing that an environmental assessment is also not
required under the foregoing exemptions (emergencies, exclusion list or
funded projects whose basic details have yet to be specified), if the
project involves one of the entities mentioned in new sections 8 to 10.1,
and that entity is required by regulation to carry out an environmental
assessment in relation to the project. The entities to which the exemptions
in section 7 would also apply if all conditions were met are:
Clause 4: New Heading
Clause 4 adds
the following new heading Assessments of Environmental Effects
before new section 8 of the Act.
Clauses 5 and 6:
Assessments by Crown Corporations, Harbour and Port Authorities,
Band Councils,
the
Canadian International Development Agency and Other Designated Entities
Clauses 5 and
6 apply to the following specified federal entities that are not federal
authorities within the meaning of the bill: Crown corporations,
harbour and port authorities, band councils, the Canadian International
Development Agency and other entities designated by regulations made under
new section 59(k.3).
Clause 5 of
the bill amends section 8 of the Act which requires selected Crown corporations
(or any corporations controlled by them) that exercise a specified power
or perform a specified duty under section 5 of the Act to carry out an
environmental assessment in accordance with any regulations made for this
purpose, as early as is practicable in the planning stages of the project
and before irrevocable decisions are made.
Clause 5 revises
this section by specifying that the applicable regulations must not only
be made but must also have come into force. It also adds new section
8(1.1), which replaces the section 5 triggers referred to
in existing section 8 of the Act with an alternative set of triggers
that are better adapted to Crown corporations, as opposed to federal
authorities. The first three triggers are variations
of the triggers (proponent, funding and land triggers) currently referred
to in section 8 of the Act, whereas the last two triggers are new.
Subject to the applicable regulations, Crown corporations (or corporations
controlled by them) would thus be required under new section 8(1.1) to
carry out an environmental assessment where:
-
the Crown
corporation (or a corporation controlled by it) sells, leases or otherwise
disposes of federal lands or any interests in those lands, for the
purpose of enabling the project to be carried out in whole or in part
(similar to the land trigger in s. 5 (1) (c));
-
where pursuant
to a provision prescribed under new section 59(j.2), the Crown corporation
(or a corporation controlled by it) issues a permit or licence, grants
an approval or takes any other action for the purpose of enabling
the project to be carried out in whole or in part (new; similar
to the law list trigger in s. 5(1)(d)); or
-
where in
circumstances prescribed by regulations made under new section 59(j.3),
a project is to be carried out in whole or in part on federal lands
that are held, owned, administered or managed by the Crown corporation
(or a corporation controlled by it), or in relation to which it has
any right or interest specified in those regulations (new;
no comparable trigger in s. 5).
Clause 6 amends
several existing sections in the Act and adds new ones. First, it
amends section 9 by dropping the reference to the Toronto Harbour Commissioners,
thus making this section apply only to the Hamilton Harbour Commissioners,
a harbour commission, a port authority or a not-for-profit corporation
that enters into an agreement under the Canada Marine Act.
It further amends this section by specifying that any regulations made
under section 59(k) with respect to these entities must have come
into force. It also adds new subsection 9(2), which sets out
the triggers under which the entities in question are to conduct an environmental
assessment, if the requisite regulations are promulgated. The first
four triggers are virtually identical to those proposed in relation to
Crown corporations under clause 5, but there is a variation in the fifth
trigger. This trigger requires an environmental assessment of projects
carried out in whole or in part on federal lands over which the entity
has administration or management. In contrast, Crown
corporations would have to conduct an environmental assessment not only
in relation to projects carried out on federal lands managed or administered
by them, but also in relation to projects carried out on federal lands
owned or held by them or in which they had a right or an interest specified
in the regulations.
Clause 6 also
adds new section 9.1, which sets out provisions similar to those above-noted
ones, but which apply to authorities prescribed by regulations
made under section 59(k.3) that have come into force. Like
Crown corporations and harbour/port authorities, these prescribed
authorities would be required to conduct an environmental assessment
in accordance with the regulations made in relation to them, as early
as is practicable in the planning stages of the project and before irrevocable
decisions are made. The environmental assessment triggers, set out
in new section 9.1(2), are similar to those proposed for harbour/port
authorities under new section 9(2), except that under the first two proposed
triggers (the proponent trigger and the funding
trigger), the project must be carried out on federal lands.
The requirement that the project be carried out on federal lands is not
made in relation to projects proposed or funded by harbour/port authorities
under section 9(2).
As well, clause
6 amends current section 10 of the Act, which deals with the environmental
assessment of federally funded projects carried out on reserve lands subject
to the Indian Act. The proposed amendment drops the current
requirement in section 10 that the project receive financial assistance
from a federal authority, thus allowing an environmental assessment to
be conducted in relation to any project carried out on reserve lands,
irrespective of the funding source, provided regulations applicable to
the band in question have been made under section 59(l) and have come
into force. In addition, clause 6 deletes (implicitly) current section
10(2) of the Act which stipulates that, notwithstanding section 5(1)(b)
(i.e., the funding trigger), an environmental assessment of
a project is not required by reason only of the provision of financial
assistance to projects carried out on Indian reserves under current section 10(2).
Finally, clause
6 adds new section 10.1, which applies to the Canadian International Development
Agency (CIDA). If regulations have been made under section 59(l.01)
and are in force, new section 10.1(1) requires CIDA to carry out an environmental
assessment of designated projects, in accordance with those regulations,
as early as practicable in the planning stages of the project and before
irrevocable decisions are made. Section 10.1(2) sets out the following
two triggers for environmental assessment:
New clause 10.1(3)
stipulates, in turn, that the application of section 5(1) of the current
Act (i.e., the triggers applicable to federal authorities)
is suspended while the CIDA regulations are in force.
Clause 7: Ministerial Orders
and Injunctions
Under existing
section 11, the federal authority to which one of the section 5 triggers
applies assumes the title of responsible authority and becomes
responsible for carrying out the environmental assessment in accordance
with the Act.
Clause 7 adds
new section 11.1 which empowers the Minister to whom the responsible
authority is answerable before Parliament (or the Ministers together,
where there is more than one responsible authority) to issue
an order prohibiting a project proponent from doing anything to carry
out the project that would alter the environment until the responsible
authority decided whether the project should go ahead (new s. 11.1(1)).
The ministerial order takes effect immediately, but it expires 14 days
later, unless it is approved by the Governor in Council (new s. 11.1(2)
and (3)). The order is exempt from selected procedural requirements
in the Statutory Instruments Act dealing with the making of regulations,
but it would have to be published in the Canada Gazette within
23 days after being approved by the Governor in Council (new s. 11.1(4)).
Where an order was issued against a particular proponent prohibiting him
or her from doing a particular act or thing, no further order could be
issued against that proponent in relation to the prohibited act or thing
(new s. 11.1(5)).
Where an order
issued under new section 11.1 was about to be contravened or was likely
to be contravened, new section 11.2 empowers the court, on the application
of the Attorney General of Canada, to issue an injunction against the
relevant party or parties, enjoining them from doing any act or thing
that would contravene the order until the responsible authority had decided
whether the project should go ahead (new s. 11.2(1)). A minimum
48-hour notice of the application would have to be given to the relevant
party(s) before the issuance of the injunction unless the urgency of the
situation was such that the delay involved in giving the notice would
not be in the public interest (s. 11.2(2)).
Clause 8: Federal Environmental
Assessment Coordinator
In recognition
of the difficulties that may arise where more than one entity is involved
in a project, clause 8 creates the office of the federal environmental
assessment coordinator (the hereinafter coordinator).
New section 12.1 sets out the coordinators role, which is to:
-
facilitate
communication and cooperation among federal authorities and other
participants, such as the provinces, Crown corporations, harbour/port
authorities, band councils and other specified Aboriginal governments
or governing bodies, foreign governments and international organizations
of states.
Under new section
12.2, the coordinator is required to carry out the following duties, in
accordance with any regulations that may be made under new section 59(a.1):
-
ensure that
the federal authorities that are or may become responsible authorities,
as well as those that are or may be in possession of specialist or
expert information or knowledge regarding the project, are identified;
In carrying
out the foregoing duties, new section 12.3 stipulates that the coordinator
may, in accordance with any regulations made under new section 59(a.1),
establish and chair a committee composed of federal authorities that are
or may become responsible authorities, as well as those who have or may
have specialist or expert information or knowledge regarding the project.
After consulting these parties, the coordinator may establish time lines
regarding the project. In consultation with the federal authorities
that are or may become responsible authorities, the coordinator may also
determine the timing of any public participation.
New section
12.4(1) specifies that the Canadian Environmental Assessment Agency (the
Agency) is to be the coordinator in relation to projects described in
the comprehensive study list, or projects that are subject to the environmental
assessment process of another specified jurisdiction (i.e., provincial
governments, selected Aboriginal governments or governing bodies, foreign
governments and international organizations of states). With regard
to other projects, new section 12.4(2) provides that if only one responsible
authority is involved in the project, that authority is the coordinator;
where more than one responsible authority is involved, the coordinator
is, in accordance with any regulations made under new section 59(a.1),
the one that the responsible authorities select, or the one that is designated
by the Agency should the responsible authorities fail to make their selection
within a reasonable time.
New section
12.4(3) allows the coordinator to be changed by agreement under specified
conditions. New section 12.4(4) adds that such agreements may apply
generally and not specifically to a particular project.
New section
12.5 requires every federal authority to comply in a timely manner with
requests and determinations made by the coordinator in the course of carrying
out its duties or functions.
Clause 9: Community Knowledge,
Aboriginal Traditional Knowledge and Regional Studies
Clause 9 adds
two new sections (ss. 16.1 and 16.2) after current section 16 of the Act,
which lists the factors to be considered in carrying out an environmental
assessment.
New section
16.1 provides that community knowledge and Aboriginal traditional knowledge
may be considered in conducting an assessment.
New section
16.2 stipulates in turn that where the environmental effects of possible
future projects in a region have been studied and a federal authority
participated in the study, outside the scope of this Act, with a specified
jurisdiction (provincial government, Aboriginal government or other Aboriginal
governing body), the results of such a study may be taken into account
in conducting an environmental assessment of a project in that region,
particularly in considering any cumulative effects that are likely to
result from the project in combination with other projects or activities
that have been or will be carried out.
Clause 10: Screenings
Section 18(1)
of the current Act requires that a screening be conducted
in relation to projects that are not described in the comprehensive study
list or the exclusion list. Clause 10(1) amends this section by
specifying that the exclusion list is the one made by regulations under
section 59(c). This amendment reflects the fact that the bill proposes
two exclusion lists:
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the exclusion
list in new section 59(c.1), which creates a new list of possible
exclusions regarding projects carried out by specified entities (e.g.,
projects carried out by designated Crown corporations or the Canadian
International Development Agency, etc.).
Clause 10(2)
in turn amends section 18(3) of the Act. Currently, this section requires
a responsible authority, in the case of a screening, to give the public
notice and an opportunity to participate (e.g., examine and comment on
the screening report and on any other record filed in the public registry)
before making a determination on whether the project should go ahead,
if the responsible authority is of the opinion that it is appropriate
to do so in the circumstances or where it is required by regulation.
Clause 10(2) revises the wording of this section by, among other things,
replacing the words where required by regulation with the
words in prescribed circumstances (note that the word prescribed
is defined in section 2 of the current Act to mean prescribed by
regulation).
This clause
also authorizes the responsible authority, at any stage of the screening,
to give the public any other opportunity to participate, thus
potentially broadening the type of input the public might have in the
process before a determination on the projects fate is made.
Clause 10(2)
also adds new section 18(4). This new section subordinates the responsible
authoritys discretion as to the timing of the publics participation
under new section 18(3) to a decision of the federal environmental
assessment coordinator pursuant to new section 12.3(c).
Clause 11: Class Screenings
Clause 11 amends
the class screening provisions in section 19 of the Act to
increase the opportunities for using a class screening report in relation
to projects considered to be routine with known environmental effects.
Currently, section 19(1) authorizes the Canadian Environmental Assessment
Agency (the Agency), on the request of the relevant responsible authority
and subject to the prescribed public notice and comment provisions, to
declare a screening report to be a class screening report,
if the Agency determines that the screening report could be used as a
model in conducting screenings of other projects within the same class.
Clause 11 changes
this section in several respects. Under proposed new section 19(1),
it drops the current requirement for a request by the responsible authority,
and it specifies the circumstances under which the declaration may be
made: the Agency may declare a report to be a class screening report,
if projects of the class described in the report are not likely, in the
Agencys opinion, to cause significant adverse environmental effects
when the design standards and mitigation measures described in the class
screening report are applied.
Clause 11 also
introduces new section 19 (2), which requires the Agency to
include in the declaration it makes under new section 19(1) a statement
that the class screening report may be used either as:
Prior to making
the declaration, the Agency must comply with the requisite notice and
comment provisions, which are revised under new section 19(3) and which
include a new requirement to notify the public of the date on which a
draft class screening report will be made available and the
place where copies of the draft may be obtained.
The publication
requirements regarding declarations, currently set out in section 19(3)
of the Act, are also revised under proposed new section 19(4). Notably,
this new section requires the Agency to post its declarations, together
with the related reports (or information on how to obtain copies
of the reports), on the new electronic Registry established by clause
26.
Proposed new
section 19(5) absolves a responsible authority from having to take further
action under section 18 (conducting a screening) and section 20 (deciding
on the appropriate course of action), where the responsible authority
is satisfied that the project falls within a class of projects for which
a class screening report has been made and declared by the Agency under
new section 19(2)(a) to be appropriate for use as a replacement
for the screening and related decision, as long as the responsible authority
ensures that the design standards and mitigation measures described in
the report are implemented.
New section
19(6) is a reworded version of current section 19(4). It provides
that where a responsible authority is satisfied that a class screening
report, which has been declared under new section 19(2)(b) to be appropriate
for use as a model for streamlining the screening, new section
19(6) authorizes the responsible authority to make use or permit the use
of the relevant class screening report, as well as any screening on which
it is based, to whatever extent the responsible authority considers appropriate
for the purpose of complying with the screening requirements under section
18.
New sections
19(7), (8) and (9) are reworded versions of current sections 19(5), (6)
and (7). They contain amendments that are consequential to the changes
made in the previous subsections.
Clause 12: Decision Following
a Screening
Current section
20(1) of the Act sets out the courses of action that are open to a responsible
authority following the screening of a project. One option is to
allow the project to go ahead (i.e., provide the funding, issue the permit,
etc.) where the project is not likely to cause significant adverse environmental
effects if appropriate mitigation measures are implemented (s. 20(1)(a)).
Current section 20 (2) requires the responsible authority to
ensure the implementation of such measures.
Clause 12 adds
new section 20(2.1), which is an interpretive clause that clarifies the
meaning of current sections 20(1)(a) and (2). It provides that,
for greater certainty, in selecting appropriate mitigation measures
and in ensuring their implementation, the responsible authority is
not limited by the Act of Parliament that confers the powers it exercises
or the duties or functions it performs. In other words, the responsible
authority is not confined to its statutory mandate, but may go beyond
it when it comes to selecting and implementing the requisite mitigation
measures.
Clause 12 also
adds new section 20(2.2) which requires a federal authority
to provide any assistance requested by a responsible authority
to ensure the implementation of a mitigation measure on which both have
agreed.
Finally, clause
12 replaces current section 20(3) of the Act with a new section that deletes
the current requirement for the responsible authority to file a notice
in the public registry of a decision taken under current section 20(1)(b)
to disallow a project from going ahead because, even with mitigation,
the project is likely to cause significant adverse environmental effects
that cannot be justified in the circumstances. This amendment is
consequential to clause 26, which replaces the public registry with
a centralized electronic Registry.
Clause 13: Comprehensive
Studies
With regard
to projects described on the comprehensive study list, current section 21
of the Act requires a responsible authority to:
Clause 13 replaces
these provisions with a series of new measures which mandate that a decision
be made early in the comprehensive study process to ensure that a project
is not subject to both a comprehensive study and a mediation or panel
review.
Specifically,
with regard to projects described on the comprehensive study list, new
section 21 requires the responsible authority to:
The matters
that must be covered in the report are:
After taking
the responsible authoritys report and recommendation into account,
the Minister is given the following two choices under new section 21.1(1):
The Ministers
decision under new section 21.1(1) is final; new section 21.1(2) precludes
the Minister from referring the project to a mediator or review panel
where he or she has decided to send it back to the responsible authority
for continuation of the comprehensive study.
Where the project
is sent back to the responsible authority, new section 21.2 requires
that the public be provided with a further opportunity to participate
in the comprehensive study, subject to any decision of the environmental
assessment coordinator under new section 12.3(c) regarding the timing
of the participation.
Clause 14: Ministers
Decision Regarding Projects Subject to a Comprehensive Study
Current section
23 of the Act sets out the Ministers options after consideration
of the comprehensive study report and any comments made by the public
under section 22 (which is not amended by the bill). Depending on
whether the project, with mitigation, is likely to cause significant adverse
environmental effects and depending also on the publics concerns,
the Minister currently has two choices:
Clause 14 follows
through on the changes proposed by clause 13, which precludes the possibility
of a project being subject to both a comprehensive study and a mediation
or panel review. Clause 14 thus replaces current section 23 with
a new section that is limited to projects in relation to which a decision
has been made to continue the comprehensive study. In such cases,
the Minister, after taking the comprehensive study report and the publics
comments into consideration, is required under new section 23(1) to send
the project back to the responsible authority for a decision under section
37 of the Act as to whether the project should be allowed to proceed.
Under a new requirement, the Minister must also issue an environmental
assessment statement, setting out:
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his or her
opinion as to whether, taking into account the implementation of any
mitigation measures the Minister considers appropriate, the project
is or is not likely to cause significant adverse environmental effects;
and
However, if
before issuing the environmental assessment statement the Minister is
of the opinion that additional information is necessary or that there
are public concerns that need to be further addressed, new section 23(2)
requires him or her to request that the projects proponent or any
federal authorities that, under new section 12.3(a), are or may become
a responsible authority, or that have specialized knowledge or expertise
in relation to the project, ensure that the necessary information is provided
or actions are taken to address the publics concerns.
Clause 15: Mediation
Where at any
time after the environmental assessment of a project or part of the assessment
has been referred to a mediator, and the Minister or mediator determines
that the mediation of any issue under consideration is not likely to produce
a result that is satisfactory to all the participants, the Minister is
currently required under section 29(4) to terminate the mediation of that
issue(s) and refer the issue(s) in controversy to a review panel.
Clause 15 amends this section by dropping the requirement that
the unresolved issues be referred to a review panel. It also replaces
the words shall terminate the mediation of the issue with
shall order the conclusion of the mediation, thus terminating
the mediation process in its entirety rather than only those aspects of
it that are problematic.
Clause 16: Linguistic Change
Clause 16 effects
a minor wording change to the French text of section 32(1): it replaces
the words lachèvement with the words la fin.
Clause 17: Closed Hearings and
Non-Disclosure of Harmful Evidence
Current section
35(3) of the Act requires a review panel to hold hearings that are open
to the public unless the panel is satisfied, after representations made
by a witness, that specific, direct and substantial harm would be caused
to the witness by the disclosure of such evidence, document or other thing
that the witness has been ordered to adduce by the review panel.
Clause 17(1) extends this exception to situations where to give the evidence
or produce the document would cause specific harm to the environment.
Current section
35(4) stipulates, in turn, that where a review panel is satisfied that
the disclosure of evidence, documents, etc., would cause specific, direct
and substantial harm to a witness, such evidence, documents, etc., are
privileged and must not, without that witness authorization, knowingly
be (or be permitted to be) communicated, disclosed or made available by
any person who has obtained such evidence or documents pursuant to this
Act. Clause 17(2) creates new section 35(4.1), which extends this
non-disclosure rule to situations where the review panel is satisfied
that disclosure of the evidence, documents, etc., would cause specific
harm to the environment. However, the privileged information could
be disclosed if authorized by the review panel.
Clause 18: Decision following
a Comprehensive Study, Mediation or Panel Review
Current section
37(1) of the Act sets out the courses of action open to a responsible
authority once a project has undergone a comprehensive study, mediation
or panel review. Clause 18(1) makes a consequential amendment to
this section with respect to projects referred back for a comprehensive
study under new section 23(1). It also makes section 37(1) subject
to new sections 37 (1.2) and (1.3), which are added by clause
18(2).
New section
37(1.2) applies exclusively to projects in relation to which a report
has been submitted by a mediator or review panel. With regard to
such projects, the responsible authority, before taking the appropriate
course of action under current section 37(1), is required by current section
37(1.1) to take the report of the mediator or panel review into consideration
and, with the approval of the Governor in Council, to respond to it. New
section 37(1.2) adds to this measure by providing that where, in relation
to a project, there is, in addition to the responsible authority, a federal
authority that meets the criteria (described below), that federal
authority may act as the responsible authority for the purpose of providing
the response. The federal authority to which this
new section applies is:
recommends
to the Governor in Council that it take the requisite action (issue
the permit, give its approval, etc.) in relation to a project for which
an environmental assessment is required by regulations made under section
59(g),
assumes the prescribed functions of a responsible authority
with regard to that project.
New section
37(1.3) applies, in turn, to projects in relation to which a decision
has been made under new section 21.1(1)(a) to continue with the comprehensive
study. With regard to such projects, and where under new section
23(1) the Minister has issued an environmental assessment decision statement
to the effect that the project is likely to cause significant adverse
environmental effects, new section 37(1.3) precludes the responsible authority
from taking action under section 37(1) without first obtaining the Governor
in Councils approval.
Clause 18(3)
adds new sections 37(2.1) and (2.2) and replaces current section 37(3)
with an amended version. The changes proposed by this clause
which applies to projects that underwent a comprehensive study, mediation
or panel review are identical to those proposed by clause 12 in
relation to projects on which a screening was carried out. Thus, clause 18(3):
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adds new
section 37(2.1) as an interpretive clause to clarify the meaning of
current section 37(2). It provides that, for greater certainty, in
selecting appropriate mitigation measures and in ensuring their implementation,
the responsible authority is not limited by the Act of Parliament
that confers the powers that the responsible authority exercises or
the duties or functions that it performs;
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replaces
current section 37(3) with new section 37(3), which deletes the current
requirement for the responsible authority to file a notice in the
public registry of a decision taken under current section 37(1)(b)
to disallow a project from going ahead because, even with mitigation,
the project would likely cause significant adverse environmental effects
that cannot be justified in the circumstances. This amendment
is consequential to clause 26, which replaces the public registry
with a centralized electronic Registry.
Clause 19: Follow-Up Programs
Where, following
an environmental assessment, it is found that, with mitigation, a project
is not likely to cause significant adverse environmental effects and the
responsible authority decides to exercise its authority to allow the project
to proceed under section 20 (1) (a) (in the case of a screening)
or section 37(1)(a) (in the case of a comprehensive study, mediation or
panel review), current section 38(1) requires the responsible authority
to design an appropriate follow-up program in accordance with the applicable
regulations and to arrange for its implementation.
Clause 19 amends
the foregoing requirement regarding follow-up programs, but only with
regard to projects for which a screening was carried out. With regard
to such projects, new section 38(1) requires the responsible authority
to design the requisite follow-up program and to ensure (as
opposed to arrange) its implementation only if the responsible
authority considers that a follow-up program is appropriate in the circumstances.
The need to design and ensure (as opposed to arrange)
the implementation of a follow-up program continues to be a requirement
under new section 38(2) for projects for which a comprehensive study,
mediation or panel review was carried out.
In designating
a follow-up program and ensuring its implementation, new section 38(3)
provides that the responsible authority is not limited by the Act of Parliament
from which it derives its authority to act in relation to the project.
New section
38(4) requires a federal authority to provide any assistance requested
by a responsible authority in ensuring the implementation of a follow-up
program on which both have agreed.
Finally, new
section 38(5) provides that the results of follow-up programs may be used
for implementing adaptive management measures and for improving the quality
of future environmental assessments.
Clause 20: The Establishment
of Joint Review Panels
Current section
40 deals with projects that might be subject to both a panel review under
the Act and an environmental assessment by another jurisdiction
in Canada (as described in the chart below). With regard to such
projects, if they involve a jurisdiction defined in current
section 40(1)(a) to (d), the Minister is empowered under current section 40(2)(a)
to enter into an agreement or arrangement with that jurisdiction regarding
the joint establishment of a review panel and the manner in which the
assessment is to be carried out. However, where in such cases the
project involves a jurisdiction defined under section 12(5),
the Minister is required by current section 40(2)(b) to offer to consult
and cooperate with that other jurisdiction with respect to the environmental
assessment.
Jurisdiction
Section 12 (5)
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Jurisdiction
Section 40(1)(a) to (d)
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A jurisdiction
is defined in section 12(5) as:
(a) the government of a province;
(b) an agency or a body that is
established pursuant to the legislation of a province and that
has powers, duties or functions in relation to an assessment
of the environmental effects of a project;
(c) a body that is established
pursuant to a land claims agreement referred to in section 35
of the Constitution Act, 1982 and that has powers, duties
or functions in relation to an assessment of the environmental
effects of a project; or
(d) a governing body that is established
pursuant to legislation that relates to the self-government
of Indians and that has powers, duties or functions in relation
to an assessment of the environmental effects of a project.
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A jurisdiction
is defined in section 40(1)(a) to (d) as:
(a) a federal authority;
(b) the government of a province;
(c) any other agency or body established
pursuant to an Act of Parliament or the legislature of a province
and having powers, duties or functions in relation to an assessment
of the environmental effects of a project;
(d) any body established pursuant
to a land claims agreement referred to in section 35 of the
Constitution Act, 1982 and having powers, duties or functions
in relation to an assessment of the environmental effects of
a project.
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Clause 20 essentially
restructures current section 40(2) and amends the type of authority
the other jurisdiction must have in relation to a project before the Minister
is authorized or required to take the above-noted action (i.e., establish
a joint review panel, or consult and cooperate). Thus:
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under new
section 40(2)(a), the Minister may enter into an agreement or arrangement
regarding the joint establishment of a review panel and the manner
in which it is to conduct the assessment, if the relevant jurisdiction
under section 40(1)(a) to (d) has powers, duties or functions
in relation to the assessment of the environmental effects of a project.
In contrast, current section 40(2) provides that such a jurisdiction
must have a responsibility or an authority to conduct an assessment
of the environmental effects of the project or any part of it.
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under new
section 40(2)(b), the Minister must offer to consult and cooperate
with the other jurisdiction regarding the assessment of the environmental
effects of the project, if the relevant jurisdiction under section
12(5) has a responsibility or an authority to conduct an assessment
of the environmental effects of the project or any part of it.
In contrast, current section 40(2)(b) does not specify the type of
authority that the other jurisdiction must have before the Minister
is required to consult and cooperate.
Clause 21: Attributes
of Joint Review Panels
Clause 21 amends
current section 41(d) to provide that a joint review panel has all the
powers and immunities accorded review panels under current
section 35. At present, section 41(d) accords joint review panels
only the powers of review panels, but not their immunities.
Clauses 22 to 24:
Projects with Transboundary Environmental Effects
If a project
to be carried out in a province is not otherwise subject to an environmental
assessment by a federal authority under one of the triggers
in current section 5 of the Act or under any other Act of Parliament
or regulation, and the Minister is of the opinion that the project may
cause significant adverse environmental effects in another province, current
section 46(1) of the Act empowers the Minister to refer the project to
a mediator or a review panel for an assessment of the environmental effects
of the project in that other province.
A similar authority
is conferred on the Minister with respect to projects:
lands
in a reserve that is set apart for the use and benefit of a band and
that is subject to the Indian Act,
federal
lands other than the reserve lands mentioned above,
lands
that are described in a land claims agreement referred to in section
35 of the Constitution Act, 1982 and that are prescribed,
lands
that have been set aside for the use and benefit of Indians pursuant
to legislation that relates to the self-government of Indians and that
are prescribed, or
lands
in respect of which Indians have interests (current section 48(1));
lands
in a reserve that is set apart for the use and benefit of a band and
that is subject to the Indian Act,
lands
that are described in a land claims agreement referred to in section
35 of the Constitution Act, 1982 and that are prescribed, or
lands
that have been set aside for the use and benefit of Indians pursuant
to legislation that relates to the self-government of Indians and that
are prescribed;
which may cause
significant adverse environmental effects outside those lands (current
section 48(2)).
Clauses 22 to
24(2), respectively, amend the foregoing sections by dropping the words
or conferred by or under any other Act of Parliament or regulation.
These amendments thus broaden the situations in which the Minister could
take action under these sections, because the Minister could now intervene
in cases involving a federal authority that was authorized by or
under any other Act of Parliament or regulation to exercise or perform
the requisite power, duty or function.
Clause 24(3)
in turn amends current section 48(5) by adding parties entitled to notice
of the Ministers intention to refer a project to a mediator or a
review panel under section 48(1) and (2).
Clause 25: International
Agreements
Where the federal
government or a federal authority enters into an agreement with a government
or other entity to provide financial assistance under section 5(1)(b)
in relation to projects that are to be carried out both outside Canada
and outside federal lands, and the essential details of such projects
are not specified, current section 54(2) requires the federal government
or federal authority to ensure, where practicable and subject to other
applicable agreements, that the agreement or arrangement provides for
an environmental assessment of such projects, as early as practicable
in the planning stages, before irrevocable decisions are made, and in
accordance with either the Act or regulations, or the environmental assessment
process that is in effect in the foreign state in which the projects are
to be carried out, which is consistent with the requirements of the Act.
However, current section 54(3) provides that the foregoing measures do
not apply regarding an agreement or arrangement which calls for the funding
to be provided only after the essential details of the projects are specified.
Clause 25 amends
these provisions by extending the requirements in section 54(2) to
similar projects funded by the Canadian International Development Agency
under new section 10.1(2)(b), and by extending the exception in section
54(3) to such projects.
Clause 26: Canadian Environmental
Assessment Registry
Current section
55 requires each responsible authority to establish and maintain a public
registry containing prescribed information on the environmental
assessments carried out under their authority. Where, however, a
project is referred to a mediator or review panel, the Agency assumes
responsibility for maintaining the registry until the ensuing report is
submitted to the Minister. Clause 26 replaces this section with
new section 55 which calls for the establishment and maintenance of an
electronic registry, called the Canadian Environmental Assessment
Registry (the Registry), whose purposes are given under new section
55(1):
Under new section
55(3), the Agency has the authority to determine:
Subject to whatever
determinations the Agency makes under the foregoing provision, new section
55(2) lists the type of information that must be included in the Registry,
for example:
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a notice
of termination of the environmental assessment by the responsible
authority, or by the Minister in relation to cases referred to him
or her for mediation or panel review, where the responsible authority
has decided against allowing the project to proceed (new section 55(2)(e)
and (f));
The list under
new section 55(2) is not exhaustive. The Agency or responsible authority
is empowered under new section 55(2)(q) to include in the Registry any
other information considered appropriate, including information in the
form of a list of relevant documents and where such documents may be obtained.
Any other record or information may also be required by regulations made
under new section 59(h).
New sections
55.1 and 55.2 set out the types of records listed under new section 55(2)
that the Agency or a responsible authority must personally ensure are
included in the Registry. Notably, a responsible authority is required
under new section 55.2(2) to ensure that, every three months or with such
other frequency that is agreed to with the Agency, a statement is included
in the Registry of the projects for which a class screening report is
used.
New section
55.3(1), however, requires the Agency or the responsible authority to
ensure that confidential third-party information within the meaning of
section 20 of the Access to Information Act is not included in
the Registry, unless otherwise permitted under that section. The
information subject to non-disclosure under section 20(2)
comprises:
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financial,
commercial, scientific or technical information that is confidential
information supplied to a government institution by a third party
and is treated consistently in a confidential manner by the third
party;
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information
the disclosure of which could reasonably be expected to result in
material financial loss or gain to, or could reasonably be expected
to prejudice the competitive position of, a third party; or
New section
55.3(2), in turn, makes sections 27, 28 and 44 of that Act apply to the
third-party information that the Agency or responsible authority intends
to include in the Registry. These sections require that the relevant
government institution:
The foregoing
provisions in new section 55.3(2) are similar to those contained in current
section 55(5) of the Act. The non-disclosure rule in
proposed new section 55.3(1), however, has a different emphasis than the
more pro-disclosure rule found in current section 55(4)(b).
Finally, new
section 55.4 revises current section 55(6). This section protects
a responsible authority or the Minister (or persons acting on their behalf
or under their direction) from being sued or prosecuted. It also disallows
proceedings to be taken against the Crown or a responsible authority for
the disclosure in good faith of any record or part record under this Act
(including any consequences flowing from the disclosure), or for failure
to give any notice required under section 27 or any other provision of
the Access to Information Act if reasonable care is taken to give
the required notice. New section 55.4 amends the current section
by extending the protection against civil and criminal proceedings to
the Agency as well. It also limits the protection afforded for failure
to give notice under section 27 or any other provision of
the Access to Information Act to breaches involving sections
27 or 28 only, as opposed to any other provision of
the Act.
Clauses 27 and
28: Quality Assurance Program
Clause 27 replaces
the current heading Statistical Summary with a new heading,
Relevant Information, to reflect the fact that additional
data may have to be supplied under new section 56.1, above and beyond
the yearly statistical summary of environmental assessments and related
decisions that responsible authorities are required to prepare
under current section 56.
Clause 28 creates
new section 56.1, which requires federal authorities and other
specified persons or bodies (Crown corporations, harbour and port authorities,
relevant band councils, the Canadian International Development Agency,
etc.) to provide to the Agency, upon its request, such information in
relation to the assessments that they conduct under the Act, that the
Agency considers necessary in support of the quality assurance program
it is required to establish and lead under new section 63(1)(d).
Clause 29: Expansion of
the Participant Funding Program
Current section
58(1.1) requires the Minister to establish a participant funding program
to facilitate the publics participation in mediations and panel
reviews. Clause 29 expands this program by making the
funding available for comprehensive studies and joint panel reviews as
well.
Clause 30: Regulation-Making
Authority
Clause 30 amends
the Governor in Councils regulation-making authority under current
section 59 of the Act in a number of material respects, as described below.
New section
59(a.1) is added, which authorizes regulations to be made regarding the
duties and functions of the federal environmental assessment coordinator,
established under new sections 12.1 to 12.4, and regarding the selection
and designation of the coordinator.
The conditions
in current section 59(c) under which projects or classes of projects may
be exempted from having to undergo an environmental assessment are revised.
Notably, new section 59(c) drops the current exclusionary ground regarding
the responsible authoritys minimal involvement with
the project, and it adds a new exclusionary ground, namely:
New section
59(c.1) is added, which applies specifically to the Canadian International
Development Agency, and Crown corporations (or any corporation controlled
by them) that have been designated, either individually or by class, by
regulations made under new section 59(j). With regard to these entities,
new section 59(c.1), in replacement of the exemptions made under new section
59(c), allows regulations to be made exempting from the requirement
to conduct an assessment under either new section 8 (Crown corporations)
or 10.1 (CIDA), any projects or classes of projects to be carried
out outside Canada and any federal lands, under the following conditions
(which are identical to those set out in new section 59(c)):
Current section
59(h) is replaced with a new measure authorizing regulations to be made
regarding the records or information to be included in the electronic
Registry, and the fees that may be charged for providing copies of documents
mentioned on or contained in the Registry.
New section
59(h.1) is added, which authorizes regulations to be made prescribing
the manner of designing a follow-up program.
New section
59(i)(l) is added, which applies to projects to be carried out outside
Canada and any federal lands, which are subject to an assessment by a
Crown corporation under new section 8. With regard to such projects,
this new section allows regulations to be made prescribing, in specified
circumstances and on any specified terms and conditions:
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the federal
authorities for whom the requirements under the Act except
for the course of action to be taken with regard to those projects
following a screening under section 20(1) or following a comprehensive
study, mediation or panel review under new section 37(1)
are deemed to be satisfied by the assessment carried out by the Crown
corporation in accordance with new section 8. Note that new section
59(i)(2) authorizes the development of additional regulations to vary
the decision-making powers of the foregoing federal authorities under
section 20(1) and new section 37(1).
New section
59(j) modifies current section 59(j) with respect to environmental assessments
by Crown corporations. For the purposes of new section 8, new section
59(j) authorizes regulations to be made:
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prescribing
the manner in which such corporations are to carry out environmental
assessments and follow-up programs, as well as any action to be taken
regarding projects during the assessment process. Regulations
developed under this heading may vary by corporation or class of corporation.
Authority is also provided to make regulations regarding the application
of provincial laws.
Three new sections
are added regarding Crown corporations or corporations controlled by them:
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For the
purposes of new section 8, and with regard to proposals to be carried
out outside Canada and any federal lands, new section 59(j.1) authorizes
regulations to be made prescribing, in replacement to any counterpart
regulations that may be made under current section 59(b), the physical
activities or classes of physical activity for which an environmental
assessment must be carried out by the corporations that have been
designated by regulations under new section 59(j). Note that
a similar power of substitution is proposed under new section 59(c.1)
in relation to projects that are not physical activities.
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New section
59(j.2) authorizes regulations to be made prescribing as a trigger
for which an environmental assessment must be carried out under new
section 8(1.1)(d), any power, duty or function conferred on a designated
corporation under any Act of Parliament or regulation.
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New section
59(j.3) authorizes the regulations to be made prescribing the circumstances
in which designated corporations must ensure that an environmental
assessment is conducted under new section 8(1.1)(e) regarding projects
to be carried out in whole or in part on federal lands held, owned,
managed or administered by them or in relation to which they have
any right or interest. Regulations may also be made specifying the
right or interest that they must have in relation to such lands.
New section
59(k) amends current section 59(k), which applies to the entities (harbour
and port authorities, etc.) referred to in new section 9. For the
purposes of section 9, new section 59(k) authorizes regulations to be
made prescribing the manner in which these entities must conduct environmental
assessments and follow-up programs, as well as the manner in which any
action is to be taken in relation to projects during the assessment process.
For the foregoing purposes, regulations may also be developed regarding
the application of provincial laws. Note that similar regulatory
authority is provided under new section 59(j) regarding designated Crown
corporations (and corporations controlled by them).
Two new sections
are also added regarding the port and harbour authorities, etc., referred
to in section 9:
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New section
59(k.1) authorizes regulations to be made prescribing as a trigger
for which an environmental assessment must be carried out under new
section 9(2)(d), any power, duty or function conferred on the harbour
and port authorities. This authority is similar to the one conferred
under new section 59(j.2) regarding designated Crown corporations.
New section
59(k.3) applies to authorities other than federal authorities
that may be required to carry out an environmental assessment under new
section 9.1 if they are prescribed authorities under regulations
made under new section 59(k.3). This new section 59(k.3) thus authorizes
regulations to be made:
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prescribing
the manner in which the prescribed classes of authorities must conduct
environmental assessments and follow-up programs, as well as the manner
in which any action is to be taken in relation to projects during
the assessment process. The manner in which these matters are
to be dealt with may vary by class of authority. Furthermore,
for the foregoing purposes, regulations may be made regarding the
application of provincial laws. Note that similar regulatory
authority is provided under new sections 59(j) (designated Crown
corporations) and 59(k) (harbour and port authorities).
New regulatory
authority, similar to that provided in relation to designated Crown corporations
under new sections 59(j.2) and (j.3) and to port and harbour authorities
under new sections 59(k.1) and (k.2), is also provided in relation to
prescribed authorities under new sections 59(k.4) and (k.5):
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New section
59(k.4) authorizes regulations to be made prescribing as a trigger
for which an environmental assessment must be carried out under new
section 9.1(2)(d), any power, duty or function conferred on the prescribed
authority under any Act of Parliament or regulation.
New section
59(l) amends current section 59(l), which deals with the assessment of
projects on Indian reserves. The proposed amendment under new section
59(1) is similar to those proposed under new section 59(j) (designated
Crown corporations), new section 59(k) (harbour and port authorities),
and new section 59(k.3) (prescribed authorities). Thus, new section
59(1) authorizes regulations to be made for the purposes of section 10:
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prescribing
the manner in which those bands or classes of bands must carry out
an environmental assessment and follow-up plan in relation to projects
that are to be carried out, in whole or in part, on an Indian reserve
that is set apart for the use and benefit of a designated band, as
well as regulations prescribing the manner in which any action is
to be taken in relation to projects during the assessment process.
Regulations made in relation to the foregoing matters may vary by
band or class of band.
New section
59(l.01) authorizes the following regulations to be made for the purposes
of new section 10.1, which applies exclusively to the Canadian International
Development Agency (CIDA):
-
regulations
regarding the manner in which an environmental assessment and follow-up
program must be carried out regarding projects in relation to which
CIDA is the proponent or to which it provides financial assistance
under new section 10.1(2), as well as regulations regarding any action
to be taken with respect to those projects during the assessment process;
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regulations
providing for the application of section 55.4 to CIDA. This
section, as amended by clause 26, protects specified entities (responsible
authorities, the Minister, the Agency and/or the Crown) from being
sued or prosecuted in relation to specified matters.
Finally, new
section 59(l.02) authorizes regulations to be made varying or excluding
any of the provisions of sections 55 to 55.3 in their application to CIDA.
These sections set out:
Clauses 31 and
32: Expanded Objects and Powers of the Canadian Environmental Assessment
Agency
Clause 31 adds
a new object that of promoting and monitoring compliance
with the Act, as well as the quality of assessments that are carried out
to the roster of objects currently set out for the Agency under
section 62 of the Act.
Clause 32(1),
in turn, expands the Agencys current list of duties in section 63(1)
by requiring that it also establish and lead a quality assurance
program for assessments conducted under the Act. Related provisions
regarding the Agencys proposed quality assurance program are contained
in new section 56.1, created under clause 28.
Finally, clause
32(2) adds the following two new discretionary powers to those currently
specified for the Agency under section 63(2):
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to request
federal authorities, and the entities referred to in new sections
8 to 10 (designated Crown corporations, harbour and port authorities,
prescribed authorities and band councils) to provide information regarding
the assessments that they conduct under the Act.
Clause 33:
Transitional Provision
Clause 33 provides
that any environmental assessment commenced prior to the coming into force
of this clause shall be continued and completed as if Bill C-19 had not
been enacted.
Clause 34: Coming into
Force
By virtue of
clause 34, the provisions of Bill C-19 come into force on a day or days
to be fixed by order of the Governor in Council.
COMMENTARY
The reaction
to Bill C-19 has been largely favourable to date. Such diverse groups
as the Mining Association of Canada and the Environmental Planning and
Assessment Caucus (EPAC) of the Canadian Environmental Network issued
news releases on their websites expressing general support for the bill.
In the news
release issued on 20 March 2001, the EPAC stated that some of the proposed
amendments would improve environmental assessment. These changes, the
group remarked, were welcome, especially those that seek to improve the
publics opportunity to become more involved in the planning of projects
that affect the environment. The EPAC also congratulated the Agency
for striving to conduct a thorough and transparent review, and for moving
forward to Parliament on many issues where a consensus was found among
the diverse interests. However, the EMAC expressed a number of concerns.
Noting that the proposed amendments would depend heavily on corresponding
administrative support to become effective, it questioned whether there
would be sufficient funding to meet the new requirements under the Act.
It also criticized the proposed legislation for failing to entrench some
fundamental principles of planning for sustainability in the federal environmental
assessment process. For example, there would still be no requirement under
the Act to consider alternative development approaches for all
projects. There would also still be no requirement to conduct environmental
assessment at the regional planning and policy levels. Without these strategic
planning tools, the EMAC stated, the Canadian public and project proponents
will continue to be at odds over environmental sustainability as each
project is proposed.
The Mining Association
of Canada also endorsed the bill in its news release of 21 March
2001, although it, too, had some reservations. Stating that the proposed
amendments would add greater clarity, certainty and timeliness to the
regulatory process for resource development, the Association commended
the federal government for the bold and important steps it
was taking, and urged expeditious consideration of the bill. It noted
that the amendments were generally consistent with the recommendations
of the multi-stakeholder Regulatory Advisory Committee (RAC) (of which
the Association is a member), adding that the amendments would help to
clarify the Acts purpose and strengthen requirements for timely
review, which should provide project proponents and investors with greater
confidence in terms of the predictability of Canadas regulatory
regime for resource development. Although it viewed the proposed amendments
as a step forward, the Association acknowledged that they did not go as
far as industry wanted, and it indicated that the Association would be
examining opportunities for working with its RAC partners before Parliament
to make additional improvements to the bill.
By way of background,
a large number of amendments were made to Bill C-13 (the parent House
of Commons bill) when it was before Parliament in 1991 and 1992, particularly
when the bill was before the House of Commons Standing Committee on Environment
and Sustainable Development. Given the broad consultations that preceded
the development of Bill C-19, it is uncertain whether the same fate awaits
this bill. As the foregoing groups indicate, Bill C-19 contains many improvements,
but there may still be room for improvement.
APPENDIX
Selected Sections from the Access
to Information Act
Third party information
20. (1) Subject
to this section, the head of a government institution shall refuse to
disclose any record requested under this Act that contains
(a) trade secrets
of a third party;
(b) financial,
commercial, scientific or technical information that is confidential information
supplied to a government institution by a third party and is treated consistently
in a confidential manner by the third party;
(c) information
the disclosure of which could reasonably be expected to result in material
financial loss or gain to, or could reasonably be expected to prejudice
the competitive position of, a third party; or
(d) information
the disclosure of which could reasonably be expected to interfere with
contractual or other negotiations of a third party.
Product or
environmental testing
(2) The head
of a government institution shall not, pursuant to subsection (1), refuse
to disclose a part of a record if that part contains the results of product
or environmental testing carried out by or on behalf of a government institution
unless the testing was done as a service to a person, a group of persons
or an organization other than a government institution and for a fee.
Methods used
in testing
(3) Where the
head of a government institution discloses a record requested under this
Act, or a part thereof, that contains the results of product or environmental
testing, the head of the institution shall at the same time as the record
or part thereof is disclosed provide the person who requested the record
with a written explanation of the methods used in conducting the tests.
Preliminary
testing
(4) For the
purposes of this section, the results of product or environmental testing
do not include the results of preliminary testing conducted for the purpose
of developing methods of testing.
Disclosure
if a supplier consents
(5) The head
of a government institution may disclose any record that contains information
described in subsection (1) with the consent of the third party to whom
the information relates.
Disclosure
authorized if in public interest
(6) The head
of a government institution may disclose any record requested under this
Act, or any part thereof, that contains information described in paragraph
(1)(b), (c) or (d) if that disclosure would be in the public interest
as it relates to public health, public safety or protection of the environment
and, if the public interest in disclosure clearly outweighs in importance
any financial loss or gain to, prejudice to the competitive position of
or interference with contractual or other negotiations of a third party.
Notice to
third parties
27. (1) Where
the head of a government institution intends to disclose any record requested
under this Act, or any part thereof, that contains or that the head of
the institution has reason to believe might contain
(a) trade secrets
of a third party,
(b) information
described in paragraph 20(1)(b) that was supplied by a third party, or
(c) information
the disclosure of which the head of the institution could reasonably foresee
might effect a result described in paragraph 20(1)(c) or (d) in respect
of a third party,
the head of
the institution shall, subject to subsection (2), if the third party can
reasonably be located, within thirty days after the request is received,
give written notice to the third party of the request and of the fact
that the head of the institution intends to disclose the record or part
thereof.
Waiver of
notice
(2) Any third
party to whom a notice is required to be given under subsection (1) in
respect of an intended disclosure may waive the requirement, and where
the third party has consented to the disclosure the third party shall
be deemed to have waived the requirement.
Contents
of notice
(3) A notice
given under subsection (1) shall include
(a) a statement
that the head of the government institution giving the notice intends
to release a record or a part thereof that might contain material or information
described in subsection (1);
(b) a description
of the contents of the record or part thereof that, as the case may be,
belong to, were supplied by or relate to the third party to whom the notice
is given; and
(c) a statement
that the third party may, within twenty days after the notice is given,
make representations to the head of the government institution that has
control of the record as to why the record or part thereof should not
be disclosed.
Extension
of time limit
(4) The head
of a government institution may extend the time limit set out in subsection
(1) in respect of a request under this Act where the time limit set out
in section 7 is extended under paragraph 9(1)(a) or (b) in respect of
the same request, but any extension under this subsection shall be for
a period no longer than the period of the extension under section 9.
Representations
of third party and decision
28. (1) Where
a notice is given by the head of a government institution under subsection
27(1) to a third party in respect of a record or a part thereof,
(a) the third
party shall, within twenty days after the notice is given, be given the
opportunity to make representations to the head of the institution as
to why the record or the part thereof should not be disclosed; and
(b) the head
of the institution shall, within thirty days after the notice is given,
if the third party has been given an opportunity to make representations
under paragraph (a), make a decision as to whether or not to disclose
the record or the part thereof and give written notice of the decision
to the third party.
Representations
to be made in writing
(2) Representations
made by a third party under paragraph (1)(a) shall be made in writing
unless the head of the government institution concerned waives that requirement,
in which case they may be made orally.
Contents
of notice of decision to disclose
(3) A notice
given under paragraph (1)(b) of a decision to disclose a record requested
under this Act or a part thereof shall include
(a) a statement
that the third party to whom the notice is given is entitled to request
a review of the decision under section 44 within twenty days after the
notice is given; and
(b) a statement
that the person who requested access to the record will be given access
thereto or to the part thereof unless, within twenty days after the notice
is given, a review of the decision is requested under section 44.
Disclosure
of record
(4) Where, pursuant
to paragraph (1)(b), the head of a government institution decides to disclose
a record requested under this Act or a part thereof, the head of the institution
shall give the person who made the request access to the record or the
part thereof forthwith on completion of twenty days after a notice is
given under that paragraph, unless a review of the decision is requested
under section 44.
Third party
may apply for a review
44. (1) Any
third party to whom the head of a government institution is required under
paragraph 28(1)(b) or subsection 29(1) to give a notice of a decision
to disclose a record or a part thereof under this Act may, within twenty
days after the notice is given, apply to the Court for a review of the
matter.
Notice to
person who requested record
(2) The head
of a government institution who has given notice under paragraph 28(1)(b)
or subsection 29(1) that a record requested under this Act or a part thereof
will be disclosed shall forthwith on being given notice of an application
made under subsection (1) in respect of the disclosure give written notice
of the application to the person who requested access to the record.
Person who
requested access may appear as party
(3) Any person
who has been given notice of an application for a review under subsection
(2) may appear as a party to the review.
*
Notice: For clarity of exposition, the legislative proposals set
out in the Bill described in this Legislative Summary are stated as
if they had already been adopted or were in force. It is important
to note, however, that bills may be amended during their consideration
by the House of Commons and Senate, and have no force or effect unless
and until they are passed by both Houses of Parliament, receive Royal
Assent, and come into force.
(1)
A copy of Bill C-19, the various discussion papers, and the Ministers
report are available on the Agencys website at http://www.ceaa.gc.ca/.
(2) Section
20 of the Access to Information Act, as well as sections 27,
28 and 44, are reproduced in the Appendix.
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