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DECISION-MAKING, FOLLOW-UP AND ENFORCEMENT OCTOBER 15, 2012

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

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DECISION-MAKING, FOLLOW-UP AND ENFORCEMENT OCTOBER 15, 2012

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  1. DECISION-MAKING, FOLLOW-UP AND ENFORCEMENTOCTOBER 15, 2012

  2. Overview Canadian Environmental Assessment Act 2012 • Decision-making • Follow-up • Enforcement and compliance

  3. 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

  4. Project Decision-making • What does significance mean? • What does justified in the circumstances mean?

  5. 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

  6. 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

  7. 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

  8. 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

  9. 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

  10. 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?

  11. 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

  12. 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

  13. 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?

  14. Ekati Diamond Mine (BHP Billiton)

  15. Ekati Diamond Mine (BHP Billiton)

  16. 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 • www.monitoringagency.net

  17. Independent Environmental Monitoring Agency • Compiles environmental information using indicators such as water quality • Publishes annual monitoring reports since 1999-2000 as well as newsletters • Recommends changes to environmental management regime, and is now advising on mine closure plan

  18. 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

  19. 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

  20. 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” • Agency decision • Proponent complies with “conditions included in decision statement • CEAA – no prohibition sections

  21. 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)

  22. 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 • Agency decision • Decision statement “indicates that the designated project is not likely to cause significant adverse environmental effects . . .”

  23. 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)

  24. 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?

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