DECISION-MAKING, FOLLOW-UP AND ENFORCEMENT OCTOBER 15, 2012
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DECISION-MAKING, FOLLOW-UP AND ENFORCEMENT
OCTOBER 15, 2012
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Overview
Canadian Environmental Assessment Act 2012
•Decision-making
•Follow-up
•Enforcement and compliance
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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
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Project Decision-making
• What does significance mean?
• What does justified in the circumstances mean?
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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
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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
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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
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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
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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
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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?
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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
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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
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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?
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Ekati Diamond Mine (BHP Billiton)
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Ekati Diamond Mine (BHP Billiton)
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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
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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
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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
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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
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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”
(a)Agency decision
(b)Proponent complies with “conditions included in decision statement
•CEAA – no prohibition sections
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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)
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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
(a)Agency decision
(b)Decision statement “indicates that the designated project is not likely to cause significant adverse environmental effects . . .”
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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)
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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?