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Harper's "New" Environmental Policy: Muddying Old Waters

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Officially, the Canadian Environmental Assessment Act, 2012, has abolished most federal environmental assessment screenings, but the practical effect is less than it appears. Parks Canada, for example, has simply replaced the old Canadian Environmental Assessment Act (CEAA) process with its new, non statutory, "Environmental Impact Assessment" process.

The new process looks a lot like the old screening EA, but with less clear rules about procedure, content, timing, public consultation and opportunities for appeal. According to Parks Canada:

"For northern protected heritage places where CEAA 2012 does not apply, environmental assessment processes remain unchanged. For lands and waters administered by Parks Canada where CEAA 2012 applies, the prescriptive process in the former Act has been eliminated and replaced with a legislated requirement to ensure projects on federal lands do not cause significant adverse environmental effects. An assessment to fulfill Parks Canada's CEAA 2012 obligation will be called an "Environmental Impact Analysis..."

Environmental Impact Analysis (EIA) is a process for identifying and evaluating the adverse environmental effects of projects. This process enables Parks Canada to develop measures to avoid and mitigate those effects where possible. Since Parks Canada's mandate is to protect and present Canadian heritage, projects are assessed for potential impacts to: 

  • Natural resources -- such as species at risk, air, ground and surface water, as well as plants and animals found in the vicinity of a project or otherwise potentially affected by it; 
  • Cultural resources -- including evaluation of impacts to heritage value and character-defining elements of known cultural resources, and consideration of risks to areas with high potential to contain cultural resources, where no inventory has yet been completed, and 
  • Visitor experience opportunities -- specifically how the proposed project is anticipated to adversely affect characteristics of the environment that are important to key visitor experience objectives."

Essentially all other relevant details remain to be determined. The savage cuts to federal environmental staff make the new process twice as hard to figure out, especially for projects in a hurry.

I've got deja vu all over again; it's like the "good old days" before CEAA when we struggled to understand federal environmental requirements. Confusion and uncertainty are good for lawyers, but didn't make anyone else happy.

CEAA was passed to keep the courts from filling in the gaps themselves. Remember Friends of the Oldman River Society v. Canada (Minister of Transport), 1992 CarswellNat 1313, when the courts unexpectedly gave real teeth to political lip service? It could happen again.