Editorial: New environmental assessment rules proposed for Canada

Canada's Minister of Environment and Climate Change Catherine McKenna at a press conference in Ottawa on Feb. 8, 2018, to unveil Bill C-69. Credit: CP.Canada's Minister of Environment and Climate Change Catherine McKenna at a press conference in Ottawa on Feb. 8, 2018, to unveil Bill C-69. Credit: CP.

On Feb. 8 Canada’s Environment and Climate Change Minister Catherine McKenna introduced the 341-page Bill C-69, which seeks to comprehensively alter the current federal legislation guiding the environmental review and regulation of large resource projects in Canada, such as pipelines, oilsands extraction and mines.

Bill C-69 is named An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigation Protection Act and to make consequential amendments to other Acts. The tortuous title is a first hint as to how much extra regulatory burden will be added to an already cumbersome and slow permitting process for major resource projects in Canada.

The heart of the bill is the Impact Assessment Act (IAA), which would replace the Canadian Environmental Assessment Act put in place in 2012 by the previous Conservative-led government in a bid to streamline environmental permitting by reducing duplication of efforts by provincial and federal regulators.

Under the IAA, the existing Canadian Environmental Assessment Agency (CEAA) would be replaced by the new Impact Assessment Agency of Canada.

On the face of it, the IAA would seem to speed up the permitting process in that it would reduce the current legislated timelines for reviewing projects from 365 days to a maximum of 300 days for assessments led by the review agency, and from 720 days to a maximum of 600 days for assessments led by a review panel.

The complexity and conflicting implications of the bill — including this promised shorter review timeline — may explain why there has been little to no response from the Canadian mining associations about Bill C-69 so far.

But reading further into the bill, there are new requirements for a range of even more extensive consultations with the public and indigenous communities that can only add to costs and timelines for proponents of resource projects.

The bill also expands the scope of project review from how a project will affect the environment to also assessing its health, social and economic impacts on communities in the long-term.

To give a flavour of just how much more non-environmental detail would be required for every review, there are repeated lines in the legislation that an impact assessment of a designated project “must take into account … the intersection of sex and gender with other identity factors.”

This suite of costly and time-consuming new burdens for resource proponents would make the proposed tighter approval timelines impossible to attain.

Instead, the federal environment minister and cabinet would simply extend the timelines by repeatedly “stopping the clock” on the approval process, as they are allowed to do, in such a way that the legislated timelines would become meaningless and the entire process more politicized. The federal cabinet would effectively give the nod to all major resource projects rather than a politically disinterested, technically competent bureaucracy granting approvals.

Bill C-69 also seeks to replace the oil and gas focused National Energy Board (NEB) in Calgary with a newly formed Canadian Energy Regulator, which would be stripped of the environmental assessment duties previously carried out by the NEB.

Bill C-69 still has long way to go before it becomes law, but with the federal Liberals holding a majority in the House of Commons and fairly pliant Senate, the bill could be the law of the land sometime in 2019 before the next federal election.

There are even more regulatory balls in the air at the moment in Canada. One of them is the launch by the CEAA of two public consultation processes to help revise the list of projects that have environmental risk and should come under regulation by the federal government rather than lower levels of government. As you can imagine, the pro-business critics think the list should shrink and the more left-leaning environmental lobby says the list should expand.

With Canada recently losing its corporate and personal tax advantages to the U.S., and the prospect of even more carbon taxes being imposed on Canadian industries, there couldn’t be a worse time to destabilize the environmental assessment process and threaten greater costs and delays for resource project proponents in Canada.

In today’s world of rapid global capital movement, the gold goose doesn’t sit around to be killed anymore. It flies off to friendlier climes to nest and begin life anew.


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