Summary of Environmental Law in Canada

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7 Environmental Impact Assessment

 

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7.1 Screening or Determining when an EIA is required

 

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In Canada, both levels of government have the authority to legislate environmental impact assessment. The following discussion applies to environmental assessment at the federal level. Environmental assessment procedures in each of the ten provinces are significantly different in various respects. Cooperation agreements have been signed between the federal government and some provinces such as Manitoba, Alberta and British Columbia. Under the agreements, projects that have to be reviewed under both the federal and the provincial environmental assessment laws will undergo a single environmental assessment meeting the legal requirements of both governments.

The Canadian Environmental Assessment Act (CEAA), which came into force in January 1995, governs environmental assessment at the federal level. The Canadian Environmental Assessment Agency is in charge of administering the environmental assessment process.

The Act requires an environmental assessment where a federal authority supports a private or public sector project in one or more of four ways:

There is no list of projects that require environmental assessment, nor is there a threshold requirement such as "significant impact on the environment." However, there is a list of types of projects, called the "comprehensive study list." If a project is of a type described on this list, and if the Act otherwise requires it to undergo a federal environmental assessment, then the assessment required is more thorough than if the project were not on the comprehensive study list.

The decision to do an environmental impact assessment is made by whatever federal authority is required to conduct the environmental assessment. The 1996 Federal Authority Regulation addresses the procedure for determining which federal authority will take the lead role when there is more than one federal authority involved.

The Act prohibits any federal authority from taking steps to allow a project to proceed prior to completion of the federal environmental assessment.

If the Act does not require a federal environmental assessment, there are a number of discretionary provisions for environmental assessment in transboundary situations.

Where a federal authority decides that the Act does not require an environmental assessment of a project, the Act imposes no obligation to provide reasons for this decision. However, as a matter of practice, a federal authority is expected to do so. A party that disagrees with such a decision can apply to the Federal Court for a judicial review of the federal authority's decision.

In 1999, the Act was subjected to a five-year review, and amendments were proposed in a bill introduced in late 2002. The review found that the current environmental impact assessment process contained several strong points such as the Act's fundamental objectives and principles, the basic structure of the process, the aspects to be addressed, and the role of the Agency. These parts of the Act were therefore preserved in the amendment bill. However, the current Act will be strengthened in three respects:

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7.2 Determining the Scope of the EIA Process

 

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The CEAA specifies some of the topics that must be addressed by the environmental assessment of a project. These include the environmental effects of the project, the significance of these effects, comments from the public, and mitigation measures. In addition, the environmental assessment of projects described on the comprehensive study list must address the following factors:

The responsible authority or the Minister of Environment may require additional topics to be addressed. The Act defines environmental effects to include socio-economic aspects of any environmental effects of the project. However, the definition does not include the direct socio-economic impacts of the project. In July 1998, a decision of the Federal Court restrained the discretion of federal departments to determine what should be considered in a project assessment. The decision is on appeal.

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7.3 Contents of EIA Document

 

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The project proponent prepares the environmental assessment document. As discussed above, the nature of the project determines what the proponent must include in the environmental assessment document. Where the project is on the comprehensive study list, the assessment must address the purpose of the project and alternative means of carrying out the project. All environmental assessments must include a discussion of mitigation measures and responses to public comments. Environmental assessment of projects on the comprehensive study list must also include a discussion of a follow-up program.

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7.4 Decision-making and Post-Decision Monitoring

 

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If, after completion of the federal environmental assessment, the responsible authority determines that the project, including mitigation measures, is not likely to cause significant adverse environmental effects, or that such effects are justifiable in the circumstances, then the project will be allowed to proceed subject to whatever terms and conditions are necessary to ensure that the mitigation measures are implemented. If, after completion of the environmental assessment, the responsible authority concludes that the project is likely to cause significant adverse environmental effects that cannot be justified under the circumstances, then no federal authority may take steps to allow the project to proceed.

The CEAA allows the responsible authority to determine whether it requires a follow-up program for a project. What exactly is required in a follow-up program has not yet been fully determined.

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7.5 Public Participation

 

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One of the stated purposes of the CEAA is to ensure that there is an opportunity for public participation in the environmental assessment process. Normally, the responsible authority has the discretion to determine whether to provide public notice of the environmental assessment of a project. However, if the project is on the comprehensive study list, then the responsible authority must provide an opportunity for members of the public to provide written and oral comments on a draft initial assessment report. Following completion of a screening report or a comprehensive study report, the responsible authority or the federal Minister of Environment may decide to refer the project to a mediator or a public review panel.

The Act provides for mediation of one or more issues or of the whole environmental assessment. The Act allows any "interested party" to be eligible to participate in a mediation, and it defines interested party broadly. If the mediator cannot achieve consensus among the interested parties, including the proponent and the responsible authority, then a review panel completes the environmental assessment.

The Minister of Environment sets the terms of reference for a mediation or review panel. The members of a review panel are independent experts appointed by the Minister of Environment. The panel conducts public hearings and has the power to require the attendance of witnesses. A participant funding program has been established under the Act to facilitate public participation at these hearings. The panel submits a final report to the Minister. The Act requires the Minister to make the report public.

The Act also requires the responsible authority to establish a public registry, which includes documents related to each environmental assessment. The Federal Environmental Assessment Index promotes public involvement by making information about federal environmental assessments easily accessible to the public.

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2003