OVERLAP, DUPLICATION, AND DELAY MARCH 12, 2012

Overview Overlap, Duplication and Delay Duplication Issues CEAA Provisions to avoid Duplication Harmonization Initiatives One Project, One Assessment Delay Issues Measures to reduce Delay

Overlap, Duplication and Delay: Overlap, Duplication, Delay a constant complaint by proponents and provinces Can issues be resolved by tinkering with laws and administrative measures? Is Overlap, Duplication and Delay code for provincial/proponent push to limit federal intrusion? Fortress Alberta: Provinces own resources; EA should be provincial only

Overlap Non-Issue Overlap - “cover and extend beyond” and “partly coincide, extend beyond” Overlapping laws in federal state are inevitable, neither good nor bad in itself Example: federal Fisheries Act prohibitions against releases of deleterious substances and provincial pollution control laws Duplication is a challenge, overlap is not

Duplication Challenge Duplicate - “copied or exactly like something already existing” (Oxford) The result of doing the same thing more than once Duplication is a result of different EA laws applying to the same project

Duplication Issues Uncertainty in EA laws (Rafferty- Alameda, Oldman Dam Projects) Duplicative Federal EA laws (Mackenzie Gas Project) Duplicative Federal/Provincial Laws (Prosperity Mine Project) Late Triggering Fisheries Act

Uncertainty in EA Laws (Rafferty- Alameda, Oldman Dam) Duplication arose because provincial authorities chose not to engage federal authorities in EA process Duplication partly as a result of uncertainty about w/not EARPGO was law of general application As a result, federal panel reviews convened at direction of court after provincial EAs completed

Duplicative Federal EA laws Mackenzie Gas Project

Mackenzie Gas Project National Energy Board Act – NEB determines public interest prior to deciding to issue pipeline licence (public interest includes environmental impacts) CEAA requires EA prior to issuance of Law-listed licences NEB Act, Fisheries Act Western Arctic Claims Settlement Act requires EA (Inuvialuit Final Agreement) Mackenzie Valley Resource Management Act requires EA

Mackenzie Gas Project MVRMA integrates EA requirements from Gwich’in, Sahtu and Tlicho claims agreements (but not Deh Cho) Claims Agreement and EA provisions constitutionally entrenched under s. 35 Mackenzie Gas Project connects to proposed Alberta pipelines regulated by (Energy Resources Conservation Board) How to build a sensible EA process out of this legislated morass?

Duplication between CEAA and Aboriginal Claims EA Laws Does Moses decision in Supreme Court of Canada reinforce duplicative EAs under CEAA and JBNQA? CEAA has been largely pushed out of northern territories (NWT, Nunavut,Yukon) Why not in provinces as well?

Mackenzie Gas Project Solution – Two sets of hearing processes Joint Review Panel with hearings to meet CEAA, MVRMA, WACSA with seven members (Inuvialuit, Gwich’in, Sahtu, Dehcho reps) NEB rep, CEAA rep, chair) NEB (three members) with roughly coinciding hearings incorporating JRP recommendations and results

Duplicative Federal/Provinical Laws - Prosperity Mine

Prosperity Mine

Proponent Taseko re-activated BC EA process in 2002, federal process in 2006 RAs: DFO, Transport Canada, NRCan DFO referred project to Environment Minister for panel review in February 2007 BC decided to proceed with provincial review in June 2008 not joint panel review Environment Minister referred to federal review panel in January 2009

Prosperity Mine EA processes conducted separately with province approving project before federal panel review completed BC approved mine; feds reject mine on recommendation of federal panel New Prosperity Mine panel review now underway (mine plan revised not to destroy Fish Lake)

Late Triggering (Fisheries Act Authorizations) 35. (1) No person shall carry on any work or undertaking that results in the harmful alteration, disruption or destruction of fish habitat. (2) No person contravenes subsection (1) by causing the alteration, disruption or destruction of fish habitat by any means or under any conditions authorized by the Minister...

Late Triggering (Fisheries Act Authorizations) Proponents not obliged to obtain s. 35 authorization prior to carrying on work or undertaking that harms fish habitat, but may be prosecuted if it does S. 35 sets out “no affirmative regulatory duty” (SCC Oldman decision) Proponents often do not seek s.35 authorization until late in project planning; then are faced with additional CEAA EA

Late Triggering (Fisheries Act Authorizations) Results: federal EAs often lag provincial EAs, with duplication of effort by proponents Why not revise Fisheries Act to replace arcane authorizations with licences that have affirmative regulatory duty? Why not carry out a comprehensive analysis of frequency of duplicative EAs, and resulting costs and delays?

CEAA Provisions – Delegation RA may delegate conduct of screenings or comprehensive studies, and design and implementation of a follow-up program to a province, land claims body s.17.(1) Delegation of the duty to take a course of action not permitted s.17.(1) RA not to take a course of action with respect to project until delegated duty carried out s.17.(2) No delegation for panels

CEAA Provisions – Substitution Minister may approve substitution by a federal process (NEB) for panel review s.43.(1) Conditions include requirements (s.44) with respect to: –Factors to be considered –Public participation –Submission and publications of reports Provinces not eligible for substitution (but Adaptation Regs?)

CEAA Provisions – Joint Panel Reviews Environment Minister may enter into agreement for joint review panel with other jurisdictions s. 40 Jurisdictions include provinces, foreign governments, aboriginal bodies under claims agreements

CEAA Provisions – Administrative Powers Environment Minister may enter into agreements or arrangements with any jurisdiction “for the purposes of coordination, consultation, exchange of information, and the determination of factors to be considered in relation to the assessment of the environmental effects of projects of common interest” s.58.(1)(d)

Harmonization Harmonization - “Movement towards adopting or requiring equivalent standards in laws, regulations and policies” Process Standards – “relating to how something is manufactured, transported and used Product Standards – “characteristic of a good, such as size, design, performance” EA process harmonization

Equivalency Equivalency - A determination that two laws have the same effect even though they may be expressed differently Alberta/Canada equivalency agreement with respect to CEPA toxic substances EAs provide information for decisions Is equivalency possible work when provincial/federal decisions have different statutory/regulatory context?

Harmonization Initiatives Canada negotiated bilateral harmonization agreements with some provinces in 1990s CCME EA Harmonization Agreement 1992 CEA Agency established offices in most provinces to coordinate EA activities with province

Harmonization Initiatives Canada-wide Accord Achieve greater effectiveness, efficiency etc. by “delineating respective roles/responsibilities by ensuring specific roles and responsibilities will generally be undertaken by one order of government only” EA Sub-Agreement – “Lead Party” concept –Feds – Lead Party on federal lands –Provinces – Lead Party everywhere else

One Project, One Assessment March 2010 – NEB, CNSC process substituted for joint panel reviews (no CEAA involvement) March One Project, One Assessment by best-placed jurisdiction Proposed CEAA amendments - may include full substitution of federal panels/comp studies by provincial EAs Loss of jurisdiction, national perspective?

Delays in Environmental Assessments Provinces, proponents claim that CEAA delays cause higher costs (financing) and damage project viability Delays may be caused by duplicative reviews, unresolved conflicts within federal government, politics-related delays in making panel appointments, poor resourcing of panels, proponent-caused delays, intervenor motions and judicial reviews

Measures to Reduce Delays Federal Coordinator established under CEAA for multiple RA project Comprehensive Study Timeline Regulation Major Project Management Office established to facilitate speedy federal review of projects (project registration, on- line project tracking)

Delays in Hearings – Joe Oliver’s Open Letter January 8, “Unfortunately, there are environmental and other radical groups that would seek to block this opportunity to diversify our trade. Their goal is to stop any major project no matter what the cost to Canadian families in lost jobs and economic growth. No forestry. No mining. No oil. No gas. No more hydro-electric dams. These groups threaten to hijack our regulatory system to achieve their radical ideological agenda. They seek to exploit any loophole they can find, stacking public hearings with bodies to ensure that delays kill good projects. They use funding from foreign special interest groups to undermine Canada’s national economic interest. They attract jet-setting celebrities with some of the largest personal carbon footprints in the world to lecture Canadians not to develop our natural resources. Finally, if all other avenues have failed, they will take a quintessential American approach: sue everyone and anyone to delay the project even further.”

Delay in Hearings – Joe Oliver’s Open Letter “Anyone looking at the record of approvals for certain major projects across Canada cannot help but come to the conclusion that many of these projects have been delayed too long. In many cases, these projects would create thousands upon thousands of jobs for Canadians, yet they can take years to get started due to the slow, complex and cumbersome regulatory process. For example, the Mackenzie Valley Gas Pipeline review took more than nine years to complete. In comparison, the western expansion of the nation-building Canadian Pacific Railway under Sir John A. Macdonald took four years. Under our current system, building a temporary ice arena on a frozen pond in Banff required the approval of the federal government. This delayed a decision by two months. Two valuable months to assess something that thousands of Canadians have been doing for over a century.”... “We believe reviews for major projects can be accomplished in a quicker and more streamlined fashion.”

Response to Open Letter No ENGO wants to stop all resource development Environmental groups do want economic transition from fossil fuel to renewable energy economy No regulatory hearing has been hijacked by ENGOs Northern Gateway is only example of “stacking of hearings”; NEB has authority to manage process Yes, there is U.S. money ($1 million in 2008) Yes, ENGOs do sue Yes, delay is a strategy

Mackenzie Gas Project Hearing Delays Project proposal tabled in June 2003 and approved in December 2010 (7.5 years) Regulatory complexity meant 2 sets of hearings (who wrote these laws?) Major delays caused by Proponents; twice stopped field work and engineering to increase pressure for impact and benefits agreement and for federal subsidies Lack of resources for Panel staff (report took 2 years)

Joslyn North Hearing Delays Six-year process due in part to Proponent Change in ownership from Deer Creek to Total combined with slow-go period when the price of oil fell (18 month delay) Initial environmental impact statement was weak, causing Panel to require additional work Panel conduct of hearings was not issue in either MGP or Joslyn

Upcoming CEAA Amendments Authorize full substitution to provincial EA processes Impose timelines on EA Panels and NEB and CNSC regulatory hearings Reduce number of projects using “project list” approach and by eliminating triggers Eliminate requirement for public participant funding from CEAA