Projects face new rules under Fisheries Act and Canadian Environmental Assessment Act

At the Environmental Liability Seminar held at the Allstream Centre in Toronto on April 9, consulting engineers heard about important new changes coming to the federal Fisheries Act and the Canadian Environmental Assessment Act. The event was held by Ecolog Environmental Legislation Service.

Joanne Vince of Willms & Shier Environmental Lawyers gave a presentation on these two federal laws as part of a day-long event where consultants heard from a variety of environmental lawyers, insurers and a crown counsel on the legal pitfalls of dealing with contaminated sites and other environmental issues on behalf of their clients.

Vince explained that new Fisheries Act amendments are being implemented by the federal government in two phases. The first phase amendments are already in force and are relatively minor. She noted that in this phase of amendments, for example, the duty to report and take action after a harmful spill has been broadened so that the spill does not need to be out of the normal course of events. Also new is that when such spills occur, those responsible must now provide a written report.

In the second phase of pending amendments to the Fisheries Act, more fundamental changes are being proposed. They will mean major changes for consulting engineers working for project proponents.

For example, under the proposals, the broad sweep of the Act now is becoming more focused on preventing harm to “fisheries,” and then only to specific “commercial, recreational or aboriginal fisheries.”

Developments affecting a fishery will require a permit under the new regulations, but will not trigger the Canadian Environmental Assessment Act 2012. Thus there will be no requirement to consult stakeholders.

However, in the case of Aboriginal fisheries there will be a need to consult stakeholders, Vince said, so a critical aspect of how the amendments are finalized will be how “aboriginal” fisheries will be defined. She said this appears to be a “political decision.”

The proposed amendments would also increase the potential fines for those contravening the new Fisheries Act. For a first offence, the fine for an individual rises from $15,000 to $1 million; for municipalities and “small revenue corporations” it rises from $75,000 to $4 million; and for corporations it rises from $500,000 to $6 million. Subsequent offences bring about even higher fines, and the limitation of liability period increases from two to five years.

Vince also surveyed the changes under the Canadian Environmental Assessment Act (CEAA) 2012. For example, under the old CEAA many government departments became involved in an assessment, but the process has been streamlined to just three agencies. One is the Canadian Environmental Assessment Agency to deal with projects in general, and the others are the National Energy Board for power projects, and the Canadian Nuclear Safety Commission.

Only certain designated projects as listed in the new Regulation now require a federal environmental assessment, Vince explained. These include major projects like mines and large hydro projects, although others could be designated by the Minister of the Environment.

Among many other changes that Vince noted is that the Environment Ministry will decide on whether a project needs an environmental assessment based on a new document called a “Project Description.” And, she said, consultants must take care to note that while there are new strict timelines, the process can be paused at any time if the CEAA decides that they need more information about a project. The time taken to acquire that information will be added to the end of the timeline, meaning projects could take longer to get approval.

An article by Joanne Vince on the new Canadian Environmental Assessment Act will appear in the upcoming June-July print issue of Canadian Consulting Engineer