Wild Border Watersheds

The Law

The charts below contain some easy to access information about the current reality for the three environmentally related statutes that can affect proposed development projects in BC. See the pages dedicated to each Act for further information.

Photo Credit: David Nunuk

The Canadian Environmental Assessment Act

The Canadian Environmental Assessment Act, 2012 (CEAA, 2012) provides a legal framework for environmental effects to be considered by federal decision makers responsible for issuing permits or approvals for development activities.

  1. In 2012, the former CEAA was repealed and replaced by a new law as part of a broader suite of reforms brought in by the Harper government. The new CEAA, 2012 is significantly different, and less robust than its predecessor.
  2. The shift from the use of project definitions to trigger lists means that fewer projects are undergoing a federal EA process.
  3. Public participation opportunities have also been curtailed due to “interested party criteria” and a pre-screening process.
  4. There are significant concerns that CEAA, 2012 imposes unrealistic timeframes for decisions that could limit the ability of government bodies to understand the full potential impacts of a project.
  5. Other recent changes include the elimination of the comprehensive study process and mediation. This means projects will receive less scrutiny, and no formal means for dispute resolution.

MORE ABOUT CEAA

The British Columbia Environmental Assessment Act

BC has a separate environmental assessment process under the British Columbia Environmental Assessment Act (BCEAA) that provides a legal framework for environmental effects to be considered in relation to large projects or developments within the province.

  1. The current BCEAA was significantly amended in 2002 by the Liberal government led by Premier Gordon Campbell. These amendments reduced its scope and application, and eliminated provisions allowing for the involvement of First Nations, local governments and community stakeholders.
  2. The goal of these amendments was to expedite the provincial EA process and apply it to fewer projects.
  3. The BC process applies to large projects that exceed size thresholds set out in a regulation. The thresholds were increased, resulting in fewer projects requiring assessment.
  4. After an EA has been completed, the executive director recommends whether the project should be granted an Environmental Assessment Certificate by the responsible Cabinet Ministers.
  5. As under CEAA, 2012 the ultimate decision following an EA is a political one. Typically the responsible ministers will follow the director’s recommendation. Projects are very rarely turned down.

MORE ABOUT BCEAA

Fisheries Act

The Federal government has exclusive constitutional legislative authority over seacoast and inland fisheries, and protects fish and fish habitat primarily through the Fisheries Act and supporting regulations.

  1. The Fisheries Act is one of Canada’s oldest and most important environmental laws.
  2. Previously, the Fisheries Act prohibited the harmful alteration, disruption or destruction (“HADD”) of fish and fish habitat unless specific permission has been granted. However, changes passed by the Harper Government significantly narrow the situations where permission is required and considerably limit habitat protection.
  3. The changes restrict HADD protection to cases of serious harm to commercial, recreational and aboriginal fisheries (or fish that support such fisheries). Other fish and fish habitat will no longer enjoy HADD protection.
  4. The changes further weaken habitat protection provisions by narrowing the prohibition to causing “serious harm” which is defined as “permanent” alteration to, or destruction of, fish habitat or actual death of fish. Permanent changes could be very difficult to prove -- yet temporary harm to fish habitat could have significant impacts given the life cycles of species such as salmon.
  5. Since these changes have only recently come into force, it is uncertain what impact they will have.  It is clear, however, that these changes place significant new limitations on the federal government’s historic role in ensuring that the impacts of development and human activity on fish and fish habitat are mitigated and, where possible, avoided entirely.

MORE ABOUT FISHERIES ACT

Canadian Federal Environmental Assessment Process

PROPOSAL
SUBMITTED

CNSC or NEB is the Responsible Authority

CEA Agency is the Responsible Authority (45 days for screening)

No screening required. CEAA does not apply.

Regulatory EA process by CNSC or NEB
(public participation)

Public comments on whether an EA is required
(20 days)

Panel Review (2-yr limit). Public comments collected. "Interested parties" can participate in hearings

Standard Review
(1-year limit).
Public participation

Exempt from federal EA due to substitution or discretion

Exempt from CEAA 2012 due to equivalency

FEDERAL DECISION

British Columbia Environmental Assessment Process

INITIAL PROPOSAL
SUBMITTED

Scope and
process for
review
determined by
EAO

Application
Information
Requirements
(30-day public
comment period)

APPLICATION
SUBMITTED

Application
evaluated for
completeness by
EAO

Application review
(Public comment
period)

Assessment report
prepared by EAO

DECISION BY
MINISTER

Pre-application: no time limit

Completion evaluation: 30 days

Application review: 180 days

Decision: 45 days