February 13, 2018 – The Government of Canada recently introduced four Bills that constitute a major overhaul of the Canadian Environmental Assessment Act (CEAA), the Fisheries Act, the National Energy Board Act and the Navigation Protection Act.
CHA agrees with the need for enhancing the public trust in and credibility of the Canadian regulatory system and supports the government’s initiative towards that end. However, these changes will have significant impact on hydropower and CHA will be actively participating in the federal government consultations on finalizing the legislation and on the accompanying regulations.
Replacing CEAA with Impact Assessment Act:
The CHA supports the change in focus of the new Impact Assessment Act, which will replace CEAA, to have a broader objective of sustainability and public interest as indicated by the five criteria of environment, health, social, economic and Indigenous factors. This will result in assessments and project decisions that will now take into consideration whether the project contributes to sustainability and the ability of Canada to meet its greenhouse gas reduction obligations.
Additionally, the new legislation involves expanded processes to ensure that Indigenous communities are consulted and are involved during early project planning, through the assessments and, ultimately, the monitoring. CHA members have already made major efforts over the past 20 years to move towards a relationship of collaboration and partnership with Indigenous communities and are eager to work within the formal framework being established by this legislation. However, the CHA is concerned that there is a risk that the new framework may become unwieldy for participants and the projects and could potentially harm these important relationships if the implementation is not carefully designed and acted upon.
The impact assessment process will now include a planning and consultation phase early in the project development and prior to submission of the detailed project description. The hydropower industry already understands the importance of such early engagement and consults with stakeholders in the project planning stage. This Act will make that mandatory and require the involvement of the Impact Assessment Agency. Imposing a new government process, reporting requirements and regulatory entity in this early phase risks increasing the complexity and imposes additional cost on proponents and longer timelines for projects. However, CHA sees a potential benefit in that the earlier interactions between proponent, communities and government is intended to enable the assessment guidelines to be more focused and less prone to missing important elements which would need to be addressed at a later stage. Also the government staff has indicated that these early stage benefits enable them to shorten the Impact Assessment (IA) timelines compared to the 2012 CEAA legislation. CHA will be monitoring to see if these benefits are realized.
CHA welcomes many of the other new elements in the Impact Assessment Act, such as initiation of Strategic and Environmental Assessments and development of a national environmental framework to determine and specify acceptable levels of impacts.
We also will be analyzing and commenting on the regulations that are being developed in parallel while the acts are passing through the legislative process. There is some concern that the project list triggering the federal assessments will be expanded to such a degree that it will be overly onerous for developers, especially the non-major projects. The CHA is of the opinion that only major projects may have significant impacts in areas of federal jurisdiction should be subject to a federal IA process
The CHA is concerned that the reversion of the prohibitions in the Fisheries Act on causing serious harm to fish, back to two separate prohibitions (death to fish and the harmful alteration, disruption and destruction of fish habitat (HADD)) could result in authorizations being required for works which impacts on fish are minor and could instead be managed with mechanisms that require less time and human resources.
The CHA will monitor closely the development of regulations under the revised Fisheries Act as these offer some new means of maintaining the gains in efficiency that were made through the 2012 amendments without compromising the additional protection of fish and fish habitat provided by the current changes. It will be critical to ensure that the key regulations are ready to come into force at the same time as the new prohibitions.
The CHA is pleased to note that the factors the Minister of Fisheries, Oceans and the Canadian Coast Guard must consider when making key decisions under the Act will continue to be explicitly listed in the Act and that they include the potential impact on the productivity of fisheries, fish management objectives, mitigation and compensation measures and habitat banks. This should contribute to ensuring that good projects will be approved while making decisions more predictable and consistent. The CHA is of the preliminary opinion that habitat banking should be defined in a manner that would allow third party banking and not only proponent led banking.
The explicit requirement to consider potential impacts on Indigenous rights, and the need to integrate traditional knowledge will ensure that these factors will be systematically considered and should contribute to ensuring the credibility of the process. It will be critical, however, to ensure that these additional requirements do not threaten the timeliness of the project authorization process under the Fisheries Act.
The implementation of the revised Fisheries Act will require significant additional resources (more staff, more senior specialists, etc.). The CHA will monitor carefully the budget of the Department of Fisheries and Oceans to make sure that these resources are actually made available.
Navigation Protection Act:
The new requirements that will apply to certain categories of works on some categories of waters under the Navigation Protection Act changes will create a significant additional burden on the hydropower industry. It will be important to try to minimize this additional burden as lists of waterbodies of different classes, lists of minor works and lists of major works, as well as other regulations under the Act, are developed.
The above views of CHA are our preliminary thinking based on an initial review of the hundreds of pages of legislation and the briefings provided to date. We will be analyzing the legislation more thoroughly and consulting with members to obtain a better understanding.
For more information, please contact:
(613) 751-6655 x.2