Project Law Blog

Significant Revisions Ahead for Federal Environmental Laws

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On April 26, 2012, the Federal Government introduced Bill C-38, which implements various components of Canada’s 2012 federal budget announced on March 29, 2012 and in its April 17, 2012 Plan for Responsible Resource Development.  The most significant change included in the bill is the complete repeal and replacement of the Canadian Environmental Assessment Act (“CEAA”), the central piece of federal environmental impact review legislation. Bill C-38 also proposes significant changes to the National Energy Board Act, the Canadian Oil and Gas Operations Act, the Nuclear Safety and Control Act, the Canadian Environmental Protection Act and the Species at Risk Act.

Along with the major changes to the federal environmental assessment process, the Government of Canada announced significant proposed changes to the federal Fisheries Act.  Currently, the federal jurisdiction over fisheries is the main trigger for federal involvement in the environmental assessment of provincial resource projects. Often small, routine projects that pose little or no risk to the environment trigger a lengthy regulatory process, which delays execution of these projects and generally increases workloads for project teams and regulatory authorities.

According to the bill, the Fisheries Act amendments are designed to focus that Act on the protection of fish that support commercial, recreational or Aboriginal fisheries and to more effectively manage those activities that pose the greatest threats to these fisheries.  Proposed changes include the following:

  • Section 35 of  the Fisheries Act will be amended; rather than prohibiting harmful alteration, disruption or destruction of fish habitat (HADD), there will be a prohibition against carrying out works or activities that result in “serious harm” to fish (defined as the “death of fish or any permanent alteration to, or destruction of, fish habitat”).
  • There will also be broad powers under s. 35 to create regulations exempting classes of works or activities from the s. 35 “serious harm” prohibition.
  • The amendments would also allow the Minister to enter into agreements with provinces and with other bodies, provide for the control and management of aquatic invasive species, clarify and expand the powers of inspectors and permit the Governor in Council to designate another minister as the Minister responsible for the administration and enforcement of subsections 36(3) to (6) of the Fisheries Act for the purposes of, and in relation to, subject matters set out by order.

On March 29, 2012 the Government of Canada announced its long-anticipated plans to expand the applicability of the federal Metal Mining Effluent Regulations to coal and diamond mining projects. These regulations set effluent standards and monitoring requirements for effluent discharged from mining projects and previously, only applied to metal mining.  However, these changes were not included in the text of Bill C-38.

Progress of Bill C-38 through the legislative process will be monitored closely.