Canadian EIA
Outline
Types of multi-jurisdictional agreements
- Standardization
- Harmonization
- Retrenchment (substitution, equivalency)
Case Studies
- Mackenzie Pipeline
- Enbridge Pipeline
- Trans Mountain Pipeline Expansion
Canadian EIA
Multiple Jurisdictions
Under the old CEAA, many projects would overlap between
federal and provincial authorities
1998: Canadian Council of Ministers of the Environment
• Signed accord between fed/prov/territorial processes
• “One-window” approach
• Not to streamline, but to prevent proponent duplication
Inconsistency of processes, mandates and requirement
between different bodies => ongoing problems
Canadian EIA
Multiple Jurisdictions
Three broad approaches
1. Standardization
2. Harmonization
3. “Retrenchment”
Canadian EIA
Standardization
Everyone uses the same process
Example – Canadian Standards Association Draft 14
• Gov’t, NGOs, industry attempt to standardize processes
during review of CEAA 1995
• Didn’t really work
Canadian EIA
Standardization
Everyone uses the same process
Sounds simple, but doesn’t realistically work
• Everyone has the best approach for their jurisdiction
• Restricts autonomy of provinces/territories
• Lowest common denominator (“race to the bottom”)
• OR would be far too ambitious (e.g. CSA Draft 14)
Canadian EIA
Harmonization
Coordination of assessments of different jurisdictions
Two ways:
1. Project-by-project basis
• Agencies meet to determine effective/efficient process
• Sign memorandum of understanding
Canadian EIA
Harmonization
Coordination of assessments of different jurisdictions
Two ways:
2. Bilateral agreements
• 1998 accord - Sub-Agreement on EA
“seeking to provide…greater consistency, predictability and
timely and efficient use of resources where two or more
Parties are required by law to assess the same proposed
project.”
Canadian EIA
Harmonization
Coordination of assessments of different jurisdictions
Two ways:
2. Bilateral agreements
• 1998 accord - Sub-Agreement on EA
• Agreements signed for BC, Alb, Sask, Man, Ont, Que, Nfl, Yk
Operational Procedures to Assist in the Implementation of the
Environmental Assessment of Projects Subject to the Canada-
British Columbia Agreement for Environmental Assessment
Cooperation
Canadian EIA
Harmonization
Coordination of assessments of different jurisdictions
Two ways:
2. Bilateral agreements
• 1998 accord - Sub-Agreement on EA
• Agreements signed for BC, Alb, Sask, Man, Ont, Que, Nfl, Yk
Nearly 50% of all major natural resource projects in Canada are
in BC jurisdiction (BC Business, 2015)
Canadian EIA
Harmonization
Coordination of assessments of different jurisdictions
Two ways:
2. Bilateral agreements
• 1998 accord - Sub-Agreement on EA
• Agreements signed for BC, Alb, Sask, Man, Ont, Que, Nfl, Yk
• Most/all are expired, but continue to be used
Canadian EIA
Harmonization
Coordination of assessments of different jurisdictions
• Decision coordination, but still separate reviews
• Two main complications = public participation & triggers
• Was used wide with CEAA 1995, moved away from it in 2012
Canadian EIA
“Retrenchment”
The reduction of costs or spending in response to economic
difficulty
Oxford English Dictionary
Canadian EIA
“Retrenchment”
Harmonization being replaced by limiting federal role entirely
1. Substitution: One process in place of all triggered (Minister
retains decision)
Must substitute if province requests it & Minister is
satisfied that all factors are being considered
Canadian EIA
“Retrenchment”
Harmonization being replaced by limiting federal role entirely
1. Substitution: One process in place of all triggered (Minister
retains decision)
2. Equivalency/Exemption: If passes provincial process, can
be exempt from federal process (Minister cedes decision)
3. Exclusion: CEAA 2012 doesn’t apply for most of territories
4. Abrogation: Raises the bar for triggering federal process,
provinces/territories forced to take over
Canadian EIA
Summary of Effects of Removal of Duplicity
Why remove duplicity?
• Removes repetition in process
• Saves time/money for both gov’t and proponents
Why keep duplicity?
• Fail-safe between jurisdictions
• Forces a more holistic view beyond federal limitations
• Harmonization already removes some repetition
• Generally, federal processes have MUCH less
participation Hanna 2015, p. 192
Canadian EIA
Case Study – Pipelines
• Many pipelines projects crossing BC (LNG, Oil)
• Most ‘visible’ in Canada
• Mackenzie Valley
• Enbridge Northern Gateway
• Kinder Morgan Trans Canada Expansion
• Energy East
• Regulated exclusively through NEB
Canadian Energy Pipeline Association 2016
http://www.cepa.com/map/index-en.html
Existing
Proposed
Canadian Energy Pipeline Association 2016
http://www.cepa.com/map/index-en.html
Existing
Proposed
Canadian EIA
Case Study – Enbridge Pipeline
Canadian EIA
Case Study – Pipelines
Mackenzie Valley LNG Pipeline (2003-2010)
• Mackenzie Delta to Alberta (>1000 km)
• Would have been largest industrial project ever in Can.
• Overlapping Joint Review Panel & NEB
• Approved in 2011, certificate expires in 2017
• EIA process convinced Exxon it wasn’t economic
• Expires in 2017 (won’t be built) – saved billions
Canadian EIA
Case Study – Pipelines
Kinder Morgan Trans Mountain Pipeline Expansion
• 1000 km of new pipe, 200 km reactivated pipe
• Marine terminal expansion (1 per week => 1 per day)
• 2013: NEB conducting assessment
• No cross-examination of NEB witnesses by qualified
interveners (e.g. Nature Canada, Fisheries and Oceans,
etc.)
• Opposition from BCers
• Hearings ending now, NEB to Minister in 2016
Canadian EIA
Case Study – Pipelines
Kinder Morgan Trans Mountain Pipeline Expansion
BC’s five conditions:
1. Successful completion of EA process
2. World-leading marine spill response
3. World-leading spill prevention systems
4. Legal requirements of Aboriginal and treaty rights
5. BC receives fair share of profits
Canadian EIA
Case Study – Pipelines
Kinder Morgan Trans Mountain Pipeline Expansion
During the course of the NEB review, the company has not
provided enough information around its proposed spill
prevention and response for the province to determine if it
would use a world-leading spills regime
Final Argument of the Province of BC
submitted to the NEB on Jan 11, 2016
Canadian EIA
Case Study – Pipelines
Jan 27, 2016
• New federal government says more steps involved in EA pipeline
process, after NEB recommendations
• Will include more public participation and Aboriginal consultation
• Will take ‘upstream’ emissions into consideration
http://www.cbc.ca/player/play/2682702897/
http://www.cbc.ca/player/play/2682704118/
Canadian EIA
Case Study – Pipelines
Enbridge Northern Gateway Pipeline
• Oil/LNG from Alberta to Kitimat – shipped to China
• 1,177 km long through all kinds of terrain
• NEB panel (2012-2014); approved in 2014
• Almost certainly won’t proceed. Why?
• Change in law around Aboriginal rights and title
• No agreement = real title, can’t displace
• Substantial opposition from BC Govt and BCers
Canadian EIA
Case Study – Pipelines
January 2016
• 2010: BC asked for equivalency with federal process
• BC has a duty to consult upon entering equivalency
• BC Supreme Court says BC cannot pass the buck on the
final decision to the NEB without consulting
I find that there has been a breach of the Province’s duty to consult, and thus the
honour of the Crown, by the failure of the Province to consult with the petitioners
I find the Agreement invalid to the extent it removes the need for the Ministers to
exercise [approval authority] of the EAA
- BC Supreme Justice Koenigsberg, Jan 2016
