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)

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

Independent Environmental Monitoring Agency Compiles environmental information using indicators such as water quality Publishes annual monitoring reports since 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?