Audit at a Glance—Chapter 4—Implementation of the <em>Canadian Environmental Assessment Act</em>, 2012
Audit at a Glance
Chapter 4—Implementation of the Canadian Environmental Assessment Act, 2012
What we examined (see Focus of the audit)
The audit examined three responsible authorities: the Canadian Environmental Assessment Agency, the National Energy Board, and the Canadian Nuclear Safety Commission, and whether they have put in place systems, practices, and procedures to support effective environmental assessments under the Canadian Environmental Assessment Act, 2012 (CEAA 2012). This audit covers the period from July 2012 to July 2014.
CEAA 2012 is still in its early stages of implementation. As such, we focused on key aspects of the Act that are relevant at this stage; namely, processes for identifying projects requiring environmental assessment and processes for public and Aboriginal participation. We also looked at processes for implementing the substitution and equivalency provisions of the Act and some aspects of the cumulative effects assessment.
What we found
Overall, we found that the Agency’s rationale for identification of projects for environmental assessment is unclear, specifically in making its recommendations to designate projects that may require an assessment, its process for supporting case-by-case designation of projects, and its screening process for determining which projects will undergo an assessment. As well, most of the Agency’s processes and the rationales on which recommendations are based are not made public. As the intent of the new legislation is to focus on projects that have the greatest potential for significant adverse environmental effects, it is important for the Agency to have a clear, transparent basis for identifying those projects.
The rationale to identify projects for environmental assessment is unclear (see paragraphs 4.21-4.26)
Recommendation. To support future reviews of the Regulations Designating Physical Activities, the Canadian Environmental Assessment Agency should develop criteria to recommend changes to the Regulations. The Agency should also develop a clear process to support its recommendations for the case-by-case designation of projects. The Agency’s criteria and processes should also be made public.
It is not always clear how the Canadian Environmental Assessment Agency has reached its screening decisions (see paragraphs 4.27-4.30)
Recommendation. The Canadian Environmental Assessment Agency should clearly outline and explain how, in its screening process, various criteria and inputs are considered to support its screening decisions. This information should also be made public.
Public and Aboriginal participation
Overall, we found that mechanisms such as guidance, processes, and some funding programs are in place to assist public participation in environmental assessment processes. We noted that the Canadian Environmental Assessment Agency’s guidance to review panels does not include any interpretation of interested parties. We also noted that some of its tools were not available to the public. We noted that the provisions of the National Energy Board Act differ from CEAA 2012 with respect to public participation and that guidance regarding participation needs to be established for offshore drilling projects. Aboriginal groups and other stakeholders interviewed and surveyed as part of the audit raised concerns over their capacity to participate in a meaningful manner. In the context of federal environmental assessments, the purpose of public participation is to ensure that those who must make decisions during and after the environmental assessment process are well informed, and that the public has had the opportunity to participate in a meaningful way.
Mechanisms for public and Aboriginal participation are in place but there are gaps (see paragraph 4.33)
Publication of the Agency’s guidance would increase transparency (see paragraphs 4.34-4.36)
Recommendation. The Canadian Environmental Assessment Agency should develop a systematic process for engaging with Aboriginal peoples on policy issues. The Agency should also make publicly available its detailed working guidance such as, but not limited to, guidance on Aboriginal consultation, environmental assessment by a review panel, and the basis on which screening decisions are determined. The guidance made available should inform Aboriginal groups and stakeholders, as well as proponents on how the Agency carries out its obligations under CEAA 2012.
Guidance would assist review panels in deciding who can participate in hearings (see paragraphs 4.37-4.39)
Recommendation. The Canadian Environmental Assessment Agency should provide general guidance to review panels to assist them in determining who may participate in public hearings and in what capacity.
National Energy Board public participation guidance does not refer to CEAA 2012 (see paragraphs 4.40-4.43)
Recommendation. The National Energy Board should update its guidance to ensure consistency with the Canadian Environmental Assessment Act, 2012. This guidance should include clarity regarding criteria and decision making for its standing tests and levels of participation.
There is no public participation guidance in place for offshore drilling projects (see paragraphs 4.44-4.46)
Recommendation. The National Energy Board should put in place guidance on public participation for projects designated under the Canadian Environmental Assessment Act, 2012 that are also regulated by the Canada Oil and Gas Operations Act. This should be developed and put in place before any offshore drilling applications are filed with the Board.
The Canadian Nuclear Safety Commission has updated its practices for public participation (see paragraphs 4.47-4.49)
Some Aboriginal and stakeholder groups are concerned about their capacity to participate (see paragraphs 4.50-4.53)
Recommendation. The Canadian Environmental Assessment Agency, the National Energy Board, and the Canadian Nuclear Safety Commission should assess whether their public and Aboriginal participation processes and time frames provide Aboriginal groups and the public with an opportunity to participate in a meaningful way and to ensure that their concerns are taken into consideration for reviewing projects that may affect them. Where necessary, measures to resolve issues related to these processes should be identified and implemented.
Working with other jurisdictions
Overall, we found that the Agency has ensured that conditions were in place for substituting provincial environmental assessment processes for federal ones.
Conditions for substitution have been established (see paragraphs 4.59-4.61)
Assessing cumulative effects
Overall, we found that each of the three responsible authorities have developed or are developing some guidance for assessing cumulative effects. The Canadian Environmental Assessment Agency’s and Canadian Nuclear Safety Commission’s technical guidance is still in draft while the National Energy Board still needs to put in place guidance for offshore drilling projects. We also noted that CEAA 2012 has provisions for the carrying out of regional studies, an important step that, once completed will help in understanding the effects of multiple projects (existing and future) in a given region.
Guidance on the assessment of cumulative effects is not yet finalized (see paragraphs 4.65-4.67)
Recommendation. The National Energy Board should further develop and update its cumulative effects guidance for projects regulated under the Canada Oil and Gas Operations Act and designated under the Canadian Environmental Assessment Act, 2012.
The Agency is exploring the potential for regional studies (see paragraphs 4.68-4.69)
The audited entities agree with our recommendations, and have responded (see List of Recommendations).
Why we did this audit
According to the Canadian Environmental Assessment Agency, an environmental assessment should be conducted as early as possible in the planning stage of a project. This is done so that the proponent can consider the analysis in the proposed plans, including incorporation of mitigation measures to address adverse environmental effects.
CEAA 2012 was introduced as part of the government’s Responsible Resource Development plan, which aimed to make the review process for major projects more predictable and timely, reduce duplication among various levels of government, strengthen environmental protection, and enhance consultations with Aboriginal peoples. The intent of the new legislation was to focus on projects that have the greatest potential for significant adverse environmental effects in areas under federal jurisdiction.
Details of the audit
|Report of the||Commissioner of the Environment and Sustainable Development|
|Type of product||Performance audit|
|Completion date||31 July 2014|
|Tabling date||7 October 2014|
|Related audits||Chapter 1—Applying the Canadian Environmental Assessment Act, 2009 Fall Report of the Commissioner of the Environment and Sustainable Development|
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The Commissioner’s Comments
Canada’s new Environmental Assessment Act finds early challenges with project list and public participation