On March 29, 2012, the federal government introduced the 2012 Federal budget and announced major reforms to the federal environmental assessment process. The proposed changes are aimed at making the review process for major projects more predictable and timely, reducing duplication, strengthening environmental protection, and enhancing consultations with Aboriginal peoples.
SHORTER REVIEW TIMELINES
The new process would establish total timelines of 24 months for the completion of joint panel reviews governing major projects such as the Enbridge Northern Gateway Pipeline. It would also impose timelines of 18 months for National Energy Board reviews and 12 months for other federal environmental assessments ("EAs").
Currently, while there are legislated timelines for certain aspects of federal environmental assessments under the Canadian Environmental Assessment Act ("CEAA"), they only apply where a project requires a comprehensive study. Moreover, these legislated timelines do not apply to the time for public comment on a comprehensive study or the decision of the Minister of Environment with respect to a comprehensive study.
GREATER HARMONIZATION
The new process would also address long-held complaints about duplication and regulatory overlap in the federal and provincial environmental assessment regimes. To this end, the federal government has also proposed granting federal agencies the authority to recognize provincial
EAs as substitutes for or equivalents to federal EAs. Currently, since both levels of government have the constitutional authority to regulate environmental matters, there is significant overlap between federal and provincial EA regimes, which creates an unnecessary regulatory burden on resource projects without any appreciable environmental benefit. Until now, the problem of duplication was occasionally dealt with through "EA Cooperation Agreements" between the two levels of government. Such agreements establish a joint framework for cooperative assessment processes that meet the legal requirements of each applicable EA regime. However, they are presently only implemented on a project-by-project basis. The new process would attempt to facilitate cooperation between the two levels of government more widely, through the adoption of a "one project, one review" approach, to all environmental assessments.
OTHER KEY CHANGES
The federal government also announced new funding for the Major Projects Management Office ("MPMO"), Aboriginal consultation and pipeline safety, as well as a host of legislative measures, including: the expansion of the Metal Mining Effluent Regulations ("MMER") to diamond and coal mines, new regulations in respect of tanker and vessel inspection requirements, and a one-year extension of the temporary 15-per-cent Mineral Exploration Tax Credit for flow-through share investors.
The MPMO was created in 2008 to provide a single point of entry into the federal EA and regulatory approval process for major resource projects, in an attempt to provide better coordination and consistency among key federal agencies and to reduce timelines associated with the approval process for those projects. The scope of the MPMO's mandate covers large resource projects that are subject to a comprehensive study, a panel review, or a large or complex multi-jurisdictional screening under CEAA.
The expansion of the MMER to diamond and coal projects will require the Department of Fisheries and Oceans to ensure that such projects undergo a thorough environmental assessment that includes public consultation related to any proposed potential use of a body of fish-bearing water for the deposit of tailings, and that any proposed fish habitat compensation plan leads to no net loss of fish habitat.
While the actual effect of these changes remains to be seen, it is hoped that they will provide an added degree of certainty regarding the length and scope of the federal environmental assessment process, as well as a greater degree of harmonization between the federal and provincial environmental assessment regimes. Project proponent should be ready to meet shorter EA timelines by ensuring their materials are in order and initiating the EA process as early as possible.
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