Understanding the new Canadian Environmental Assessment Act (CEAA) and how it relates to applicable provincial environmental assessment and planning legislation is critical to the success of your projects. Navigating the challenges of multiple government bodies, project scoping considerations and your consultation responsibilities with First Nations are key to the approval process. Obtaining approvals for these assessments may unlock opportunities or cause challenges. Presenters: David Estrin, Partner, Gowlings (Toronto Office) Rodney V. Northey, Partner, Gowlings (Toronto Office)

1. Environmental Assessments
for Energy, Infrastructure and
Resource Projects:
Challenges and Opportunities

2. Part One: Triggering CEAA, 2012
Sub-Topics
1.
2.
3.
4.
5.
6.
7.
Designated Projects
NEB/CNSC Trigger
CEA Agency Trigger
Definition of ―Designated Project‖
CEA Agency Screening
Ministerial Trigger
Federal Lands Trigger
2

3. 1.1
1st:
2nd:
Designated Projects
SOR/2012-147
SOR/2013-186
Schedule to Designated Physical Activities
Regulation:
(1)
CEA Agency project list
-
Power generation facilities
Dams
Oil & gas (wells, pipelines, processing)
Mines & quarries
Military facilities
Marine facilities, canals, locks
Transportation (rail, airports, highways,
international bridges)
- Hazardous waste
(2)
NEB project list (transmission lines, offshore wells &
pipelines, oil & gas processing & pipelines)
(3)
CNSC project list (mines, mills, processing,
manufacturing, reactors, waste storage & disposal)
3

4. 1.2
NEB/CNSC Trigger
Provision:
13. A designated project for which the responsible authority is referred to in
any of paragraphs 15(a) to (c) is subject to an environmental assessment.
Interpretive Aid:
15.
For the purposes of this Act, the responsible authority with respect to a designated project that is
subject to an environmental assessment is
(a)
the Canadian Nuclear Safety Commission, in the case of a designated project that includes
activities that are regulated under the Nuclear Safety and Control Act and that are linked to
the Canadian Nuclear Safety Commission as specified in the regulations made under
paragraph 84(a) or the order made under subsection 14(2);
(b)
the National Energy Board, in the case of a designated project that includes activities that
are regulated under the National Energy Board Act or the Canada Oil and Gas Operations
Act and that are linked to the National Energy Board as specified in the regulations made
under paragraph 84(a) or the order made under subsection 14(2);
(c)
the federal authority that performs regulatory functions, that may hold public hearings and
that is prescribed by regulations made under paragraph 83(b), in the case of a designated
project that includes activities that are linked to that federal authority as specified in the
regulations made under paragraph 84(a) or the order made under subsection 14(2); or
(d)
the Agency, in the case of a designated project that includes activities that are linked to the
Agency as specified in the regulations made under paragraph 84(a) or the order made
under subsection 14(2).
4

5. 1.3
CEA Agency Trigger
Provision:
Interpretive Aids:
8. (1) The proponent of a designated project — other than one that is
subject to an environmental assessment under section 13 or
subsection 14(1) — must provide the Agency with a description of the
designated project that includes the information prescribed by
regulations made under paragraph 84(b).
SOR/2012-147:
Regulations
Designating Physical
Activities
(2) If the Agency is of the opinion, after receiving the description of the
designated project from the proponent, that a decision cannot be made
under paragraph 10(b) because the description is incomplete or does
not contain sufficient details, the Agency may, within 10 days after
receiving it, require the proponent to provide an amended description
that includes the information and details that the Agency specifies.
SOR/2012-148:
Prescribed Information
for the Description of a
Designated Project
Regulations
5

6. 1.4
Definition of “Designated Project”
“designated project”
2.(1) ―designated project‖ means one or more
physical activities that
(a)
are carried out in Canada or on federal
lands;
(b)
are designated by regulations made under
paragraph 84(a) or designated in an order
made by the Minister under subsection
14(2); and
(c)
are linked to the same federal authority as
specified in those regulations or that order.
It includes any physical activity that is
incidental to those physical activities.
6

7. 1.4
Project: Illustrated Context
LAKE
FOREST
NEW
FACILITY
FIRST NATION
RESERVE
Proposed Road
FOREST
Proposed
Transmission
Line
Existing Road
FOREST
Existing Stream
Existing Transmission Line
7

8. 1.4
Illustration (1): Resource Activity Trigger
LAKE
FOREST
NEW
FACILITY
(DPA)
FIRST NATION
RESERVE
Proposed Road
(not DPA)
FOREST
Proposed
Transmission
Line (not DPA)
Existing Road
FOREST
Existing Stream
Existing Transmission Line
8

9. 1.4
Illustration (2): Infrastructure Trigger
LAKE
FOREST
NEW
FACILITY
(not DPA)
FIRST NATION
RESERVE
Proposed Road
(DPA)
FOREST
Proposed
Transmission
Line (not DPA)
Existing Road
FOREST
Existing Stream
Existing Transmission Line
9

10. 1.5
CEA Agency Screening
SCREENING DECISION:
SOR/2012-148:
Prescribed Information for the
Description of a Designated
Project Regulations
• General Info
• Project Info
• Project Location Info
• Federal Involvement
• Environmental Effects
• Summary
10. Within 45 days after the posting of the notice on
the Internet site, the Agency must
(a) conduct the screening, which must include a
consideration of the following factors:
(i) the description of the designated project
provided by the proponent,
(ii) the possibility that the carrying out of the
designated project may cause adverse
environmental effects,
(iii) any comments received from the public
within 20 days after the posting of the
notice, and
(iv) the results of any relevant study
conducted by a committee established
under section 73 or 74; and
(b) on completion of the screening, decide if an
environmental assessment of the designated
project is required.
10

11. 1.6
Ministerial Trigger
14.(2) The Minister may, by order, designate a physical
activity that is not prescribed by regulations made
under paragraph 84(a) if, in the Minister’s
opinion, either the carrying out of that physical
activity may cause adverse environmental effects
or public concerns related to those effects may
warrant the designation.
(3)
The Minister may require any person to provide
information with respect to any physical activity
that can be designated under subsection (2).
11

12. 1.7
Federal Lands Trigger
Definitions
66.
―authority‖ means
(a) a federal authority; and
(b) any other body that is set out
in Schedule 3.
―project‖ means a physical activity
that is carried out on federal lands
or outside Canada in relation to a
physical work and is not a
designated project.
•
Schedule 1 re Federal
Authorities, includes port
authorities
•
Schedule 3 re Bodies,
includes designated airport
authorities
Project carried out on federal lands:
67. An authority must not carry out a project on
federal lands, or exercise any power or perform
any duty or function conferred on it under any Act
of Parliament other than this Act that could permit
a project to be carried out, in whole or in part, on
federal lands, unless
(a)
the authority determines that the carrying out
of the project is not likely to cause significant
adverse environmental effects; or
(b)
the authority determines that the carrying out
of the project is likely to cause significant
adverse environmental effects and the
Governor in Council decides that those
effects are justified in the circumstances
under subsection 69(3).
12

13. 1.7
Illustration (3): Federal Lands Trigger
LAKE
FOREST
NEW
FACILITY
(not DPA)
FIRST NATION
RESERVE
Proposed Road
(not DPA)
FOREST
Proposed
Transmission
Line (not DPA)
Existing Road
FOREST
Existing Stream
Existing Transmission Line
13

14. Part Two:
CEAA/12 & Environmental Effects
Three key definitions
(1)
―environment‖
(2)
―environmental effect‖ – narrow
(3)
―environmental effect‖ – broad
14

15. 2.1: Definition of “Environment”
―environment‖
2. (1) ―environment‖ means the components
of the Earth, and includes
(a) land, water and air, including all
layers of the atmosphere;
(b) all organic and inorganic matter and
living organisms; and
(c) the interacting natural systems that
include components referred to in
paragraphs (a) and (b).
15

16. “Environmental Effect” - Narrow
2.2
5.(1) For the purposes of this Act, the environmental effects that are to be taken into account in
relation to an act or thing, a physical activity, a designated project or a project are
(a)
a change that may be caused to the following components of the environment that are within
the legislative authority of Parliament:
(i)
(ii)
aquatic species as defined in subsection 2(1) of the Species at Risk Act,
(iii)
migratory birds as defined in subsection 2(1) of the Migratory Birds Convention Act, 1994, and
(iv)
(b)
fish as defined in section 2 of the Fisheries Act and fish habitat as defined in subsection 34(1) of that Act,
any other component of the environment that is set out in Schedule 2;
a change that may be caused to the environment that would occur:
(i)
(ii)
in a province other than the one in which the act or thing is done or where the physical activity, the designated
project or the project is being carried out, or
(iii)
(c)
on federal lands,
outside Canada;
with respect to aboriginal peoples, an effect occurring in Canada of any change that may be
caused to the environment on:
(i)
health and socio-economic conditions,
(ii)
physical and cultural heritage,
(iii)
the current use of lands and resources for traditional purposes, or
(iv)
any structure, site or thing that is of historical, archaeological, paleontological or architectural significance.
(Note: Format altered from CEAA/12 to highlight discrete components.)
16

17. 2.3
“Environmental Effect” - Broad
5.(2) However, if the carrying out of the physical activity, the designated project or the
project requires a federal authority to exercise a power or perform a duty or function
conferred on it under any Act of Parliament other than this Act, the following
environmental effects are also to be taken into account:
(a)
a change, other than those referred to in paragraphs (1)(a) and (b), that may be
caused to the environment and that is directly linked or necessarily incidental to a
federal authority’s exercise of a power or performance of a duty or function that
would permit the carrying out, in whole or in part, of the physical activity, the
designated project or the project; and
(b)
an effect, other than those referred to in paragraph (1)(c), of any change referred to
in paragraph (a) on
•
health and socio-economic conditions,
•
physical and cultural heritage, or
•
any structure, site or thing that is of historical, archaeological, paleontological or
architectural significance.
17

18. 2.4
Illustration (4): Effects - Narrow
LAKE
FOREST
NEW
FACILITY
(DPA)
FIRST NATION
RESERVE
Proposed Road
(not DPA)
FOREST
Proposed
Transmission
Line (not DPA)
Existing Road
FOREST
Existing Stream
Existing Transmission Line
18

19. 2.5
Illustration (5): Effects - Broad
LAKE
FOREST
NEW
FACILITY
(DPA)
FIRST NATION
RESERVE
Proposed Road
(not DPA)
FOREST
Proposed
Transmission
Line (not DPA)
Existing Road
FOREST
Existing Stream
Existing Transmission Line
19

20. Part Three:
Substitution of EAs **
Options
Option 1: Substitution of provincial EA for federal EA
Option 2: Substitution of federal EA for provincial EA
20

21. 3.1
Substitution of Provincial EA for Federal EA
Provision:
s. 32(1) Subject to sections 33 and 34, if the
Minister is of the opinion that a process for
assessing the environmental effects of
designated projects that is followed by the
government of a province — or any agency or
body that is established under an Act of the
legislature of a province — that has powers,
duties or functions in relation to an assessment
of the environmental effects of a designated
project would be an appropriate substitute, the
Minister must, on request of the province,
approve the substitution of that process for an
environmental assessment.
Interpretive Aids:
34. (1) The Minister may only approve a
substitution if he or she is satisfied that
(a)
the process to be substituted will
include a consideration of the factors
set out in subsection 19(1);
(b)
the public will be given an
opportunity to participate in the
assessment;
(c)
the public will have access to records
in relation to the assessment to
enable their meaningful participation;
(d)
at the end of the assessment, a
report will be submitted to the
responsible authority;
(e)
the report will be made available to
the public; and
(f)
any other conditions that the Minister
establishes are or will be met.
21

22. 3.2
Substitution of Federal EA for Provincial EA
Ontario EAA, section 3.1
(1)
This section applies,
(a)
if another jurisdiction imposes requirements
with respect to an undertaking to which
this Act applies; and
(b)
if the Minister considers the requirements
imposed by the other jurisdiction to be
equivalent to the requirements imposed
under this Act.
(2)
The Minister may by order vary or dispense
with a requirement imposed under this Act
with respect to the undertaking in order to
facilitate the effective operation of the
Example:
Harmonization Order
with Stillwater Canada
Inc. Re Marathon
Platinum Group Metals
and Copper Mine
Project
(August 8, 2011)
requirements of both jurisdictions.
(3)
The Minister may by order declare that this
Act does not apply with respect to the
undertaking.
22

23. Part Four: EA & First Nations
Sub-topics:
(1) CEAA/12 & First Nations
(2) Ontario EA & First Nations
(3) Comparison of these EA regimes on key
topics
23

24. 4.1
CEAA/12 & First Nations
1. Part of all CEAA EAs (within ―narrow‖
environmental effects definition)
2. Similarity to CEAA/95:
- not comprehensive in scope of impacts:
1.
2.
must be physical change to ―environment‖ to
trigger relevant FN effect; and
where physical change to environment, there are
four kinds of effects to consider on FNs
24

25. 4.2
Ontario EA & First Nations: Scope of EA
Unless specified otherwise, Ontario EA has detailed minimum
requirements to:
1. Identify alternative methods (e.g., locations, designs) for all
components of the project (―undertaking‖).
2.
For each alternative:
a) describe existing FN ―environment‖, including physical, biological,
health, and social, cultural and economic conditions of FN
communities,
b) describe environmental effects on the full FN ―environment‖,
c) describe all measures to avoid or mitigate effects on the FN
environment, and
d) evaluate each alternative method for 1-3 above and select
alternative with preferred mix of advantages and disadvantages.
25

26. 4.2
Ontario EA & FNs: Def’n of “environment”
―environment‖ means,
(a) air, land or water,
(b) plant and animal life, including human life,
(c) the social, economic and cultural conditions that influence the
life of humans or a community,
(d) any building, structure, machine or other device or thing made
by humans,
(e) any solid, liquid, gas, odour, heat, sound, vibration or radiation
resulting directly or indirectly from human activities, or
(f) any part or combination of the foregoing and the
interrelationships between any two or more of them, in or of
Ontario;
26

27. Comparing CEAA/12 & OEAA re FN Topics
CEAA/12
OEAA
Focus on effects & mitigation for project
Requires equal attention to describing
existing situation, effects & mitigation for
project and alternatives
Does not include direct projects effects
on FNs
Includes direct effects on FNs
Defines four types of defined effects on
FN
Covers virtually all effects on FNs
Focus on avoiding significant adverse
environmental effects (SAEE), including
effects on FNs
Focus on benefits exceeding impacts,
including effects on FNs
Narrow scope to assessing alternatives:
any alternative which is not likely to
cause SAEE
Broad scope to assessing alternatives:
must provide rationale for preferred
alternative re advantages and
disadvantages
27

28. QUESTIONS?
DAVID ESTRIN
Tel:
416.862-4301
Email: david.estrin@gowlings.com
ROD NORTHEY
Tel:
416.369.6666
Email: rodney.northey@gowlings.com
montréal
ottawa
toronto
hamilton
waterloo region
calgary
vancouver
beijing
moscow
london