Plan for Responsible Resource Development

On April 17, 2012, the Canadian government announced as part of its Economic Action Plan 2012 its plan for Responsible Resource Development, which is intended to streamline the regulatory review process for major economic projects by introducing new legislation to achieve greater efficiency and predictability, more effective environmental protection and more meaningful consultations with Aboriginal peoples.

The government indicated that the existing regulatory framework requires “comprehensive reform” and it intends to introduce legislation to implement system-wide improvements to achieve the goal of “ one project, one review, in a clearly defined time period.”¹ The plan for Responsible Resource Development is based on the following key themes:²

1. Making the review process for major projects more predictable and timely;
2. Reducing duplication in the review process;
3. Strengthening environmental protection; and
4. Enhancing consultations with Aboriginal peoples.

Among the key measures proposed are:³

• Focus environmental assessments on the major projects that have a greater potential for significant adverse environmental effects, which would include participation by public directly affected. In this regard, it appears the government intends to use a new approach that will identify specific projects that would require a federal review based on establishing a “project list”, which will describe categories of projects to which federal environmental assessment legislation will apply, such as energy and mining projects.⁴ Notably, as a safeguard, the Minister of Environment will have the authority to order an assessment for any project subject to federal jurisdiction.⁵
• Simplify the current structure of environmental assessments and replace it by just two kinds of reviews: a standard environmental assessment or a review panel.
• Decisions by the Canadian Environmental Assessment Agency on whether a federal environmental assessment is required will be made earlier in the process (within 45 days).
• Set timelines of 12 months for standard environmental assessments led by the Canadian Environmental Assessment Agency and establish the following maximum beginning-to-end timelines for review panels: 24 months for projects under the Canadian Environmental Assessment Act and 18 months for projects under the National Energy Board Act. Notably, the timelines will apply to government and not the project proponents.
• Set legally binding timelines for key regulatory permitting processes, including the Fisheries Act, the Species at Risk Act, the Navigable Waters Protection Act, the Canadian Environmental Protection Act and the Nuclear Safety and Control Act.
• Consolidate responsibility for environmental assessments with the Canadian Environmental Assessment Agency for most projects, and with the Canadian Nuclear Safety Commission and the National Energy Board for projects within their jurisdiction. This will consolidate the number of organizations responsible for reviews from more than 40 to three.
• Provide the federal government the authority through substitution and equivalency provisions to allow provincial environmental assessments that meet the substantive requirements of the Canadian Environmental Assessment Act to replace federal assessments as a means to eliminate duplication. In particular, the government indicated that if a province requests substitution, and its process meets the requirements of the Canadian Environmental Assessment Act, the government will substitute the province's process.⁶
• Make it possible for a single regulator such as a province, the National Energy Board or the Canadian Nuclear Safety Commission conducting a project review, to issue authorizations under key provisions of the Fisheries Act, if the regulator meets federal requirements.
• No longer require joint review panels for projects regulated by the National Energy Board and the Canadian Nuclear Safety Commission.
• Establish clearer accountability for decisions on major pipeline projects in the national interest by providing government the authority to approve or reject a proposed pipeline, based on recommendations of the National Energy Board, and under conditions for safe operation of the pipeline set by the National Energy Board, which may not be altered by the government.⁷
• Provide funding to improve pipeline safety by enabling the National Energy Board to increase the number of inspections for oil and gas pipelines and the number of comprehensive annual audits and provide funding to further strengthen Canada's tanker safety regime, including appropriate legislative and regulatory frameworks related to oil spills and emergence preparedness and response.⁸
• Provide for enforceable conditions in Fisheries Act authorizations and allow for longer term authorizations with enforceable conditions under the Species at Risk Act.
• In cooperation with provincial governments, allow for greater use of regional environmental assessments to identify and address potential regional and cumulative effects, particularly in areas experiencing large-scale developments.
• Introduce enforceable environmental assessment decision statements under the Canadian Environmental Assessment Act to ensure proponents of resource projects comply with the required mitigation measures and provide federal inspectors with the authority to examine whether or not conditions of a decision statement are being met. Proposed penalties for non-compliance with conditions set out in the decision statements could range from $100,000 to $400,000.⁹
• Authorize the use of administrative monetary penalties for violations of the Canadian Environmental Assessment Act, the Nuclear Safety and Control Act and the National Energy Board Act. Proposed penalties could range from $25,000 to $100,000 under the Nuclear Safety and Control Act and the National Energy Board Act, while the range of penalties under the Canadian Environmental Assessment Act will be established by regulations.¹⁰
• Better integrate Aboriginal consultations into the new environmental assessment and regulatory processes, provide funding to support consultations with Aboriginal people, and establish consultation protocols or agreements with Aboriginal groups to clarify what the expectations and level of consultation should be in project reviews.
• Negotiate memoranda of understanding with provincial governments to better align federal and provincial processes and improve the involvement of Aboriginal groups, project proponents and government organizations. The federal government is currently working on such agreements with Nova Scotia and Alberta.

In Alberta, the Progressive Conservative Party and the Wildrose Party both support the federal plan to streamline the regulatory review process.¹¹ However, the federal government's plan is not without its critics. On the day the plan for Responsible Resource Development was announced, the Pembina Institute issued a statement denouncing the plan and concluding that the “proposed changes will unnecessarily weaken environmental protection for Canadians”.¹² According to the Pembina Institute, “the federal environmental review process is generally more rigorous than provincial assessments and evidence suggests provinces like Alberta do not have adequate capacity to properly review projects on their own.”¹³

Project developers should be encouraged by the proposed changes, however, as they say – the “devil is in the details”. It will be important to continue to monitor the development of the legislation necessary to implement the federal government's proposed plan. We note that most provincial environmental legislation, the Canadian Environmental Assessment Act and existing harmonization agreements between the provinces and the federal government currently contain provisions that are intended to ensure cooperation between governments and avoidance of duplication in environmental assessment. However, in practice these objectives have rarely been achieved with most projects subject to both provincial and federal review resulting in excessive duplication and overlap. Clear legislative amendments and flexible mechanisms for the substitution of the provincial process will be necessary to maximize the effectiveness of the proposed policy changes.

The proposal to set mandatory timelines for the completion of federal environmental assessments will also be a welcome change. However, we note that other regulatory legislation with such provisions also allows for the suspension of mandatory timelines if additional information is required by the reviewing authority. In practice, requests for additional information from reviewing authorities can result in considerable delays that could allow for continued inefficiencies even if mandatory timelines are imposed. To ensure efficient reviews, it will also be important for reviewing authorities to have clear and consistent information requirements for completing environmental assessments under the Canadian Environmental Assessment Act. 

Notes

1. Responsible Resource Development Booklet at page 4 (accessed online April 17, 2012).
2. Ibid. at page 6.
3. Ibid. at pages 6-11.
4. Frequently Asked Questions: Responsible Resource Development at Question 7 (accessed online April 17, 2012).
5. What Responsible Resource Development Means for Environmental Protection (accessed online April 17, 2012).
6. What Responsible Resource Development Means for Federal-Provincial Cooperation (accessed online April 17, 2012).
7. What Responsible Resource Development Means for Jobs and Growth (accessed online April 17, 2012).
8. What Responsible Resource Development Means for Environmental Protection.
9. Ibid.
10. Ibid. 
11. Alberta Party Leaders Back Federal Regulatory Plan (accessed online April 17, 2012, at www.calgaryherald.com).
12. Pembina Reacts to Federal Government Plans to Weaken Environmental Assessment (accessed online April 17, 2012, at www.pembina.org).
13. Ibid.