DECISION-MAKING, FOLLOW-UP AND ENFORCEMENT

OCTOBER 15, 2012

Overview

Canadian Environmental Assessment Act 2012

•Decision-making

•Follow-up

•Enforcement and compliance

Project Decision-making

• Determination as to likely significant adverse environmental effects s.5.(1), (2) remains key

• Determination made by Minister (for EAs and panel reviews)

• If significant adverse effects determination, Cabinet determines whether those effects are justified in the circumstances

Project Decision-making

• What does significance mean?

• What does justified in the circumstances mean?

Determinations of “Significance”Reference Guide 1994

• Only effects that are both likely and adverse can be considered

• Includes mitigation measures

• Factors include:– Magnitude– Geographic Extent– Duration and Frequency– Reversibility – Ecological Context

Justified in the Circumstances

• Projects rarely are determined to have significant adverse environmental effects

• Result – decision-makers rarely called upon to justify project “in the circumstances”

• Project that makes net positive contribution to sustainability may be justified even if significant adverse environmental effects

Project Decision-making • Decision Statement required to be issued

by decision-maker to proponent s. 54.(1) within 24 months after referral to panel review

• Decision Statement must be made public, include conditions for mitigation measures, follow-up programs s.54.(1)

• Decision Statement to refer to significance, justify significant effects, set approval conditions

Project Decision-making

• RA/Minister then determines conditions for project approval not Cabinet

• Conditions limited to those “directly linked or necessarily incidental to the exercise of a power or performance of a duty or function by a federal authority

Project Decision-making • In case of an equivalency finding under

section 37 with respect to a provincial EA process– no federal project decision under CEAA

2012– no requirement to consider results of the

equivalent provincial EA process (may still be federal regulatory decisions)

• Unclear if results of provincial EA must be considerd in federal decision-making

Significance – Is that all there is?

• Does CEAA 2012 require that project decisions go beyond test of unmitigable, unjustifiable significant adverse environmental effects

• Is it arguable that CEAA 2012 points to broader net positive contribution to sustainability obligations?

Follow-up Programs

• “A program for (a) verifying the accuracy of the environmental assessment of a project, and (b) determining the effectiveness of any mitigation measures” s.2.(1)

• Not used for compliance purposes

• Don’t require that proponents/regulators to adjust mitigation measures in case of serious unanticipated effects

Follow-up Programs

• Requirements of follow-up program mandatory factor for EAs s.19.(1)(e)

• Review panels required to include follow-up program in report s. 43.(1)(d)

• Results may be used for implementing adaptive management measures or improving quality of future EAs

Failure to Learn from EAs, Follow-up Program

• Failure to learn and apply lessons learned from EAs to achieve better predictions of effects and better mitigation measures is perhaps the biggest failure of CEAA

• Follow-up programs are rarely serious, rarely affect project operation beyond early post-approval stage

• How can follow-up programs work if proponents not required to disclose data?

Ekati Diamond Mine (BHP Billiton)

 

Ekati Diamond Mine (BHP Billiton)

 

Independent Environmental Monitoring Agency

• Public watchdog for environmental management of NWT Ekati Diamond Mine

• Established under 1997 agreement that followed on 1996 NWT Diamonds Mine Project Review Panel recommendations

• Agreement is legal instrument to ensure BHPB, governments respect/protect land, water, wildlife, way of life essential to well-being of Aboriginal Peoples

• www.monitoringagency.net 

Independent Environmental Monitoring Agency

• Compiles environmental information using indicators such as water quality

• Publishes annual monitoring reports since 1999-2000 as well as newsletters

• Recommends changes to environmental management regime, and is now advising on mine closure plan

Enforcement and Compliance

• CEAA 1995: Few legal tools for compliance

• Judicial review was key tool, no appeals

• Self-assessment approach for screenings resulted in highly fragmented approach and minimal quality control

• CEAA 2012: better tools for compliance

Enforcement and Compliance

• Any federal decision can be challenged it is relied on a legally deficient EA (Cheviot case)

• EA report can be challenged for legal deficiencies even if no federal decision yet (Cheviot case)

• Scoping decisions are subject to judicial review (Citizens Mining Council case) program

Prohibitions S. 6

“The proponent of a designated project must not do any act or thing in connection with the carrying out of the designated project . . . if that act or thing may cause an environmental effect unless”

(a)Agency decision

(b)Proponent complies with “conditions included in decision statement

•CEAA – no prohibition sections

Offence for Violating S.6 Prohibitions

“Any proponent who contravenes section 6 is guilty of an offence punishable on summary conviction and is liable, for a first offence, to a fine of not more than $200,000 and for any subsequent offence, to a fine of not more than $400,000” S. 99.(1)

Prohibitions S. 7

“A federal authority must not exercise any power or perform any duty . . . that would permit a designated project to be carried out” unless

(a)Agency decision

(b)Decision statement “indicates that the designated project is not likely to cause significant adverse environmental effects . . .”

Injunctions

Minister may apply for, and competent court may grant injunction if a “person has done, is about to do, or is likely to do any act constituting or directed toward the commission of an offence under section 99” s.96.(1)

CEAA 2012 – Justifiable under Federal Criminal Law Power?

• S. 6 and 7 Prohibitions

• SS. 89 – 102 Administration and Enforcement powers (appointment and powers of enforcement officers, warrants, order, offences, penalties)

• Provide basis for validating CEAA 2012 as valid federal legislation pursuant to federal criminal law power under s. 91 Constitution Act?