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Change ahead for energy sector assessment process

Proposed changes address federal environmental assessment regime and creation of Canadian energy regulator.
Change ahead for energy sector assessment process
Julie Belley Perron and Kateri Vincent are partners with Langlois lawyers in Montreal.

On Feb. 8, the Minister of the Environment and Climate Change tabled Bill C-69, which has three main thrusts that will have significant impact. 

The three areas include: (i) repeal of the Canadian Environmental Assessment Act (2012) and its replacement by the new Impact Assessment Act; (ii) creation of the Canadian Energy Regulator to replace the National Energy Board; and (iii) amendments to the Navigation Protection Act, including a change in its title to the Canadian Navigable Waters Act. The changes are likely to come into force in the spring of 2019.

The new Impact Assessment Act

The federal government is revising its entire impact assessment process. The Impact Assessment Agency will be responsible for performing impact assessments and  the scope of an assessment will be broadened to cover, inter alia, impacts on society, health and the economy, in addition to the environment. 

The bill includes a broadened scope of legislative oversight by requiring that the impacts a project may have on any Indigenous group and on the rights of Indigenous peoples be taken into account. This addition also includes express recognition of the rights of Indigenous peoples and is a codification of the Crown’s constitutional duty to consult them. Another significant proposed change is the addition of a preparatory phase for the project assessment. The agency will have 180 days to provide a notice of an assessment process and publish the results of consultation on the initial description of the project, compared to the current 45-day period.

Consultations 

The proposed Impact Assessment Act will include a revised list of designated projects to be established by regulation. Some examples of projects likely to be included on the new list are:

• in situ oil sands production;

hydraulic fracking;

potash mining;

large-scale wind-farms.

Creation of the Canadian energy regulator

The CER will be responsible for regulating pipelines, developing energy resources and marketing energy. Thus, the CER, like the current NEB, will be responsible for overseeing federal, interprovincial and international energy projects. However, the CER will also have the power to regulate offshore renewable energy projects.

The bill is aimed at modernizing the NEB by: (i) increasing the independence of the CER; (ii) ensuring greater foreseeability and rapidity in decision-making; (iii) enhancing safety and environmental protection; (iv) ensuring a more inclusive process; and (v) promoting increased participation of Indigenous communities.

Here are some examples of the measures proposed:

• separation between the decision-making function of the CER and its administrative function;

• the CER will assess non-designated projects, and the process will take 300 days rather than 450 days;

• the minister will have the power to make a conclusive, non-appealable decision on export licences;

• at least one member of the board of directors and one of the CER’s commissioners must be a member of a First Nation, a Métis or an Inuit; and

• take into account any adverse effect a project may have on rights of Indigenous peoples.

Navigation Protection Act

The major change to the existing statute, apart from the change in title to the Canadian Navigable Waters Act, is the reconfiguration of certain powers of the minister of transport and the institution of new procedures for constructing works in, across or over navigable waters. In this regard, there will be three types of works involving navigable waters: (i) major works, the construction of which will require the approval of the minister of transport, (ii) works listed in a schedule to the statute, for which approval will also be required; and (iii) other works, which are subject to a public notice process. 

Julie Belley Perron and Kateri Vincent are partners with Langlois lawyers in Montreal.