Federal Environmental Regulatory Reform Program – Where Are We Now?

Last year, the Government of Canada launched a review of key federal environmental and natural resource regulatory laws and processes. Expert panels and parliamentary committees reviewed the laws, consulted with stakeholders, and provided recommendations on:

  1. The federal environmental assessment process
  2. The National Energy Board
  3. Fish habitat protection under the Fisheries Act
  4. Navigation protection under the Navigation Protection Act.

While the federal government has disclosed some of the changes it is considering implementing, it remains unclear how and when those changes will appear. We expect that changes will be made in order for the government to fulfil its election promises and address the perceived concern that the previous government had weakened federal environmental protection measures.

This bulletin provides an update and overview of each of the four reviews. For a more in-depth analysis, please see our Blakes Overview: Federal Environmental Regulatory Reforms.

FEDERAL ENVIRONMENTAL ASSESSMENT

The Minister of Environment and Climate Change was tasked with overseeing the federal environmental assessment process review. The stated goals of the review were to regain public trust, help get resources to market, and introduce new, fairer processes. The minister appointed a four-person expert panel to conduct the review. A Multi-Interest Advisory Committee made up of indigenous organizations, industry associations and environmental groups was established to provide advice and recommendations to the expert panel.

The expert panel spent months engaging the public, indigenous groups and stakeholders and receiving submissions. The expert panel delivered its report, titled Building Common Ground: A New Vision for Impact Assessment in Canada on April 5, 2017, outlining 48 recommendations (see our April 2017 Blakes Bulletin: Expert Panel’s Recommendations to Increase the Number, Cost and Timing of Federal Environmental Assessments). Some of the notable recommendations included:

  • Broadening the scope of environmental assessment to consider the five elements of sustainability, and renaming the process “impact assessment”
  • Creating a new, single federal authority to conduct impact assessments
  • Using strategic and regional impact assessments to address cumulative impacts and the application of federal policies, plans and programs
  • Requiring impact assessments for all projects that are likely to adversely impact matters of federal interest that are consequential for present and future generations.

After Canadians were provided with an opportunity to review and respond to the report and the recommendations, the government released a discussion paper on this and the other three topics (discussed below).

NATIONAL ENERGY BOARD

The Minister of Natural Resources was tasked with “modernizing” the National Energy Board (NEB) and ensuring its composition reflects regional views and has sufficient expertise in such fields as environmental science, community development and indigenous traditional knowledge. The minister appointed a five-member expert panel to conduct a targeted review of the NEB structure, role and mandate under the National Energy Board Act in November 2016. The expert panel visited 11 cities to hear the views of Canadians. On May 15, 2017, the expert panel delivered its report, titled Forward, Together Enabling Canada’s Clean, Safe and Secure Energy Future.

The report contained 46 recommendations, including:

  • Developing a formal Canadian energy strategy
  • Restructuring the NEB approval process such that a determination on whether the project is in the national interest will be conducted before a detailed project review (environmental assessment) takes place
  • Renaming and restructuring the NEB as the Canadian Energy Transmission Commission (Commission). The proposed Commission would be overseen by a corporate-style board of directors and would appoint hearing commissioners to sit on joint hearing panels and make regulatory decisions.

FISHERIES ACT

The Minister of Fisheries, Oceans and the Canadian Coast Guard was asked to review the previous government’s changes to the Fisheries Act and to incorporate “modern safeguards.” The review was undertaken by the House of Commons Standing Committee on Fisheries and Oceans (Standing Committee), which released its report on February 24, 2017, titled Review of Changes Made in 2012 to the Fisheries Act: Enhancing the Protection of Fish and Fish Habitat and the Management of Canadian Fisheries.

The federal government provided a response to the Standing Committee report on June 20, 2017, accepting 30 of the 32 recommendations, and accepting the intent of the remaining two. Key recommendations included:

  • A return to the prohibition on the harmful alteration or disruption, or the destruction, of fish habitat standard
  • Reinstituting and expanding protections for fish habitat
  • Renewing Fisheries and Oceans Canada’s commitment to “no net loss of fish habitat” policies
  • Expanding the government’s enforcement, monitoring and scientific capacity.

NAVIGATION PROTECTION

The Minister of Transport was tasked with reviewing the previous government’s changes to the Navigation Protection Act and to incorporate “modern safeguards.” The House of Commons Standing Committee on Transport, Infrastructure and Communities (Standing Committee) took on the review. After hearing from witnesses and experts in the field, the Standing Committee tabled its report, titled A Study of the Navigation Protection Act on March 23, 2017.

The federal government tabled its response to the report on June 20, 2017, accepting all 11 recommendations. Key recommendations included updating the List of Scheduled Navigable Waters (Schedule) in consultation with Canadians and indigenous communities, improving the process of adding waterways to the Schedule, and improving public participation and complaints mechanisms.

FEDERAL RESPONSE TO THE ENVIRONMENTAL AND REGULATORY REVIEWS

Following the four review processes, the federal government released the Environmental and Regulatory Reviews: Discussion Paper on June 29, 2017. Its focus was on potential reforms being considered by the federal government “to rebuild trust and modernize Canada’s environmental and regulatory processes.”  The paper focused largely on principles and conceptual changes and included little discussion of how or when those changes might be implemented. Some of the changes under consideration include:

  • Establishing a single government agency responsible for federal impact assessment, coordinating consultations with Indigenous Peoples, and jointly conducting impact assessments with life-cycle regulators for major energy transmission, nuclear and offshore oil and gas projects
  • Restructuring the NEB by separating the roles of CEO and chairperson of the board, creating a corporate-style executive board to lead and provide strategic direction to the NEB and creating separate hearing commissioners to review projects and provide regulatory authorizations
  • Reinstituting the former prohibition on the harmful alteration, disruption or destruction of fish habitat without approval
  • Improving the process for adding navigable waters to the Schedule and regulating obstructions and certain classes of works on all navigable waterways in Canada
  • Facilitating early and regular engagement and participation of Indigenous Peoples in all reviewed processes.

TAKEAWAYS

It remains unclear how or when changes will be made to the federal environmental regulatory reform program, and the extent of those changes. There’s also uncertainty as to what changes will be made, and as to how the changes will be implemented and interpreted by regulators and the courts. This will be a challenging time to make business decisions in this changing landscape.

We will provide further updates as more information becomes available.

For further information, please contact any member of our Environmental Law group.

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