Canadian Environmental Assessment Act

The Canadian Environmental Assessment Act establishes a process for conducting environmental assessments (EA) of projects involving decisions made by the federal government.  Environmental assessment is a structured information-gathering process that:

·          identifies the environmental effects of a proposed project,

·          determines the need to mitigate or eliminate the effects,

·          modifies the proposed project accordingly, or

if necessary, recommend that a project not proceed. Further to a legislated 5-year review process, the Act is currently under review and a new Act listed as Bill C-9 is now under consideration.

Section 4 of the Canadian Environmental Assessment Act sets out its purposes, which include:

·          to ensure that the environmental effects of projects receive careful consideration before responsible authorities take actions in connection with them;

·          to encourage responsible authorities to take actions that promote sustainable development and thereby achieve or maintain a healthy environment and a healthy economy; and

·          to ensure that there be an opportunity for public participation in the environmental assessment process.

 

When an Environmental Assessment will be required

The Act sets out a number of different “triggers” – circumstances in which an assessment will be required:

·          proposes a project (the proponent trigger);

·          grants money or some other form of financial assistance for a project (the funding trigger);

·          grants an interest in land to enable a project to be carried out (the land trigger);

·          exercises a regulatory duty in relation to a project, such as issuing a permit or license (the Law List trigger) (see section 5)

There is an Exclusion List Regulation created under the Act that lists projects that will be excluded from this general framework.  Projects related to national emergencies are also excluded.

In addition to the above, the Act authorizes the Minister to subject a proposed project to an EA where the Minister believes that the project has the potential for significant environmental effects or raises public concerns, or where the project may cause significant adverse transboundary environmental effects and no other federal act or regulation applies.

Environmental Assessment Processes

When an environmental assessment is required, it is the “responsible authority” – the government agency proposing, supporting or approving the project – that is responsible ensuring that an assessment is done.  It is also the Responsible Authority that will make recommendations to the Minister as to whether a certificate should be issued for a project.  However, the Act also establishes the Canadian Environmental Assessment Agency to supervise assessments (as well as generally to administer and promote the federal EA process policies and practices.) 

 

The Act sets out guidelines for how an assessment will be carried out, which are discussed in more detail on the Guide’s Page on CEAA process and participation.

 

Decision-making under CEAA

An initial step in the Environmental Assessment Process will be to screen the project to determine whether it is likely to cause significant adverse environmental affects that “cannot be justified in the circumstances” or whether there are other reasons to conduct a more detailed assessment. 

 

If the Responsible Authority, after considering the screening, and comments from the public, determines that there is no need for a more detailed assessment the project may proceed.

 

If there is a need for a more detailed assessment (see CEAA Process and Public Participation) the Responsible Authority must decide, on the basis of an assessment report, whether or not the project still causes significant adverse environmental affects “that cannot be justified in the circumstances”, in which case the project cannot proceed.  If the assessment has resulted in a mediator or review panel report the decision of the Responsible Authority must receive approval from the federal cabinet. 

 

The term “justified in the circumstances” is not defined in the Act.  This means that an RA’s decision to proceed with a project despite indications that it will have significant adverse environmental effects involves essentially a subjective determination of what is “justified”.  This is a major weakness of the Act.

 

Despite its benefits, the Act has been criticized for not providing enough opportunity for public involvement in the decision-making process and for giving too much discretionary power to Responsible Authorities.  Other problems include a lack of definition of cumulative effects or guidelines on how to do a proper assessment of them; and a requirement that assessments look at the social and economic effects of a proposed project on the surrounding region.

 

Using the Act

In the context of watershed management and aquatic habitat, the Canadian Environmental Assessment Act will often arise when Fisheries and Oceans Canada is called on to give approvals under the Fisheries Act or the Navigable Waters Protection Act.  The majority of Fisheries and Oceans Canada’s assessments are required in respect of decisions to authorise the “harmful alteration, disruption or destruction of fish habitat”.  

 

Related pages of the Guide:

 

·          CEAA process and participation

 

·          B.C. Environmental Assessment Act

 

·          Canada-BC Agreement on Environmental Act

 

More information about the Canadian Environmental Assessment Act:

 

·          Electronic version of the Canadian Environmental Assessment Act

 

·          The Citizen’s Guide: Canadian Environmental Assessment Process

 

·          Links to the Act and Regulations.

 

·          Canadian Environmental Assessment Office web-site