1.      FEDERAL EA PROCESS

Federal EAs are administered by the Canadian Environmental Assessment Agency. EAs are most often completed by the Agency, and in such cases, must be completed within 365 days of commencement. The National Energy Board (NEB) and Canadian Nuclear Safety Board (CNSB) also conduct federal EAs for projects that fall within their regulatory authority. Collectively, the Agency, the NEB and the CNSB are referred to as Responsible Authorities under the Canadian Environmental Assessment Act, 2012 (CEAA) s 15.

The process can be summarized into 6 stages:

  • Determining if an EA is required. A proponent submits a project description to the Agency, and the Agency has 45 days to determine if an EA is needed. This determination is made by reference to a schedule of designated projects that are likely to require an EA. This list includes, for example, projects related to the construction, expansion or abandonment of oil sands facilities; offshore drilling; oil refineries; pipelines; mines, nuclear facilities; pulp mills; pharmaceutical processing; dams; and electrical transmission lines. Regulations Designating Physical Activities, SOR/2012-147 ss. 9,10, 14,15, 17, 20, 34 online: <http://www.gazette.gc.ca/rp-pr/p2/2012/2012-07-18/html/sor-dors147-eng.html>). Projects must reach a threshold in size to trigger the EA requirements

    The Agency may determine that an EA is required even if a proposed project does not fall within this schedule. A summary of the project description is posted online for a 20-day public comment period. These public comments are used to help the Agency determine if an EA is necessary. The Agency also considers the description of the project, the potential for adverse environmental impacts, and other regional studies ((CEAA, ss 13, 14) Canada, Canadian Environmental Assessment Agency, Basics of  Environmental Assessment (Government of Canada, 2017) online: <https://www.canada.ca/en/environmental-assessment-agency/services/environmental-assessments/basics-environmental-assessment.html#gen01> [Basics of EA]).
     
  • Draft Environmental Impact Statement: If an EA is required, the proponent must prepare a draft Environmental Impact Statement (EIS), which is posted online for public comment. After the public comment period has ended, the Agency issues Environmental Impact Statement Guidelines. The proponent will modify their EIS in accordance with these guidelines (Basics of EA).
     
  • (Optional) Referral and Appointment of Review Panel: The Agency has the discretion if it wishes to proceed with the EA via Review Panel. A Review Panel consists of independent experts selected by the Agency to oversee the EA process.

    If no Review Panel is appointed, the Agency or other Responsible Authority continues handling the EA. When the Agency handles the EA, it must be completed within 365 days from the Agency’s decision that an EA is necessary (subject to three month extension).

    If a Review Panel is appointed, its Terms of Reference (outlining authority and mandate) are set and opened for public comment prior to that appointment. The EA must be completed within 24 months from the Agency’s decision that an EA is necessary (subject to three month extension).

    (Basics of EA, CEAA s 38)
     
  • Participant Funding Period Commences: The Canadian Environmental Assessment Agency administers a Participant Funding Program, which supports individuals, non-profit organizations and Indigenous groups interested in participating in federal environmental assessments. To be eligible for participant funding, the applicant must demonstrate the value they will add by participating in an environmental assessment and meet at least one of the following criteria:
    • Have a direct, local interest in the project, such as living or owning property in the project area;
    • Have community knowledge or Indigenous traditional knowledge relevant to the environmental assessment;
    • Plan to provide expert information relevant to the anticipated environmental effects of the project; and/or
    • Have an interest in the potential impacts of the project on treaty lands, settlement lands or traditional territories and/or related claims and rights

(CEAA, s 57; Canada, Canadian Environmental Assessment Agency, Participant Funding Application for an Environmental Assessment (Ottawa: Government of Canada, 2017) online: <https://www.canada.ca/en/environmental-assessment-agency/services/public-participation/participant-funding-application-environmental-assessment.html4>).

  • Considering the EIS: The Review Panel/Responsible Authority considers whether or not the proponent’s modified EIS is adequate to present to the public for comment. If inadequate, the proponent is required to provide more information. The EIS will include information on:
    • environmental effects, including environmental effects caused by accidents and malfunctions, and cumulative environmental effects
    • significance of those environmental effects
    • public comments
    • mitigation measures and follow-up program requirements
    • purpose of the designated project
    • alternative means of carrying out the designated project
    • changes to the project caused by the environment
    • results of any relevant regional study
    • any other relevant matter

(Basics of EA)

  • Public Comment / Public Hearings: Once the EIS is complete, in the case of a Review Panel process, public hearings are held. Where there is no Review Panel, the Responsible Authority posts the modified EIS online for comment.
     
  •  Report to the Minister: The Review Panel / Responsible Authority drafts a Report based on the EIS. This Report report includes the Agency's conclusions regarding the potential environmental effects of the project, the mitigation measures that were taken into account and the significance of the remaining adverse environmental effects as well as follow-up program requirements. Comments on the Report are solicited, after which it is submitted to the Minister of the Environment.
     
  • Minister’s Decision: The Minister decides if the project is likely to cause significant adverse environmental effects. If so, it is referred to the Governor in Council (Cabinet) (CEAA, s 52(2)). Cabinet decides if the likely significant adverse environmental effects are justified in the circumstances (CEAA, s 52(4). Once this is decided, the Minister issues an environmental assessment decision statement with enforceable conditions. This could include mitigation measures and a follow up program (CEAA, s 54).

(Basics of EA)

There are four stages of the process where members of the public are encouraged to participate:

  1.  Determination of whether an EA is required
  2.  Environmental impact statement guidelines (drafted by the Agency)
  3.  Environmental impact statement (drafted by the proponent)
  4.  Report to the Minister (Agency or review panel): the public can comment on the draft environmental assessment report. In the case of a Review Panel, this stage is supplemented with public hearings.

    (Basics of EA)

In order to participate in the EA process, members of the public must make themselves aware of opportunities for public comment and public funding. The Registry can be found here (LINK: http://ceaa-acee.gc.ca/050/index-eng.cfm). Public participants do not necessarily get personal notice of a proposed project unless they are following closely with the projects reviewed by the government.

2.      PROVINCIAL EA PROCESS

The Environmental Protection and Enhancement Act, RSA 2000, c E-12 online: <http://www.qp.alberta.ca/documents/acts/e12.pdf> (EPEA) governs environmental impact assessments (EIAs) in Alberta. The EPEA’s purpose is to support and promote the protection, enhancement and wise use of the environment (EPEA, s 2). In addition, the Water Act, RSA 2000, c W-3 governs the regulatory process for any proposed projects affecting the conservation and management of water (Water Act, s 2).

Like the federal regime, provincial EIAs are required for certain types of projects that meet a certain threshold. This includes, for example, pulp mills, water reservoirs and dams, power plants, oil sands operations, and refineries that operate within Alberta. Environmental Assessment (Mandatory and Exempted Activities) Regulation, Alta Reg 111/1993.

While EIAs are overseen by the EPEA, they are the responsibility of either:

  •  The Alberta Energy Regulator (AER) - for EIAs related to energy resources activities.
  •  Alberta Environment and Parks - for all other EIAs.

(Alberta, Alberta Energy Regulator, Environmental Assessments (Alberta, Alberta Energy Regulator, 2014) online: < https://www.aer.ca/applications-and-notices/environmental-assessment>).

The provincial process for environmental assessments can be grouped into 5 steps (Alberta, Alberta Environment and Parks, Alberta’s Environmental Assessment Process (December 2015) (Alberta, Alberta Environment and Parks, 2015) online: <http://aep.alberta.ca/land/land-industrial/programs-and-services/environmental-assessment/documents/EnvironmentalAssessmentProcess-Dec2015A.pdf> [Provincial EA Process]:

  •  Determining whether an Environmental Impact Assessment is Needed: The Environmental Assessment Director receives notice of a new project and determines if the project is one requiring a mandatory EIA or is exempted from an EIA. If it falls under neither heading, the director has discretionary authority to order an EIA.  The Environmental Assessment (Mandatory and Exempted Activities) Regulation lists the mandatory and exempted activities. If an Environmental Impact Assessment report is required for a project, the Indigenous Consultation Office will also become involved (Provincial EA Process, EPEA s 45).
     
  • Setting Scope of EIA: If an EIA is required, the proponent will prepare two documents: Terms of Reference, which lays out the information needed for the EIA; and a First Nations Consultation Plan, which directly focuses on the consultation that will take place with potentially impacted Indigenous communities. The proponent will advertise the proposed Terms of Reference to allow for public participation. Once input is received, the Director determines the scope and information required to be included in the EIA Report (Provincial EA Process, EPEA s 48).
     
  • Technical Review: The proponent submits a finalized EIA report to the Director. A regulatory review is conducted by either Alberta Environment and Parks or the Alberta Energy Regulator, which involves a multi-disciplinary team of provincial experts. The reviewers determine if there are remaining uncertainties, and if the terms of reference have been satisfied. If they have, the EIA report is submitted to the Director. The director then determines if the EIA is complete and refers it to an applicable board, or to the Minister.
     
  • Public Interest: If the matter has been referred to the Minister, he or she decides if the project is in the public interest. If it is not referred to the minister, the public interest determination is made by the appropriate Regulatory Board (Alberta Utilities Commission, Energy Resources Conservation Board or Natural Resources Conservation Board).  A public hearing may be part of this determination.
     
  • Regulatory Approval: If a project is deemed to be in the public interest,  the proponent moves forward with other regulatory approvals from applicable departments. This could include, for example, the Regulatory Board, Alberta Environment, Alberta Sustainable Resource Development and potentially several other government departments

    Alberta, Alberta Environment and Parks, Environmental Assessment Programs, Frequently Asked Questions (Updated Feb 2010) (Alberta: Alberta Environment and Parks, 2010) online: <http://aep.alberta.ca/land/land-industrial/programs-and-services/environmental-assessment/documents/EnvironmentalAssessmentProgram-FAQ-2010A.pdf> [Alberta EA FAQ].

As with the federal system, public participation is sought at various stages of the approval process. The proponent must advertise notices for public participation throughout the process, whenever it is required. Usually, these notices will appear in several newspapers and at least one Indigenous newspaper when Indigenous consultation is required. The proponent selects the newspaper and the Director gives approval (Alberta EA FAQ).

The public can review the current projects here. There is a list of the current projects, as well as a list of previous Environmental Impact Assessments as well. These can also be viewed in person at the Alberta Government Library in Edmonton as well as through a library catalogue online.

The public usually has 30 days from the time of notice publication to submit any comments, but longer timelines may be specified within the notice. If comments are not submitted within the timeframe provided, the Director may not be able to consider them. As well, the comments must be submitted to the appropriate person. The publication here lists the address in which to submit comments.