Projects on Federal Lands: Making a determination under section 67 of the Canadian Environmental Assessment Act, 2012

Part 1: Context

Act Requirements

CEAA 2012 includes specific requirements for Authorities around considering the likelihood of significant adverse environmental effects of a project. To assist Authorities in understanding these requirements, the key legislative obligations are described in the following sections. Additionally, a listing of definitions relating to Section 67 of CEAA 2012 is presented in Appendix A (also denoted in highlighted text, linking to the definition).

Subsection 4(2) of CEAA 2012
"The Government of Canada, the Minister, the Agency, federal Authorities and responsible Authorities, in the administration of this Act, must exercise their powers in a manner that protects the environment and human health and applies the precautionary principle."

The purpose of this Act, with respect to federal lands, includes the requirements to:

  • Ensure that projects, as defined in section 66, that are to be carried out on federal lands, or those that are outside Canada and that are to be carried out or financially supported by a federal authority, are considered in a careful and precautionary manner to avoid significant adverse environmental effects; and
  • Encourage federal authorities to take actions that promote sustainable development in order to achieve or maintain a healthy environment and a healthy economy.

Environmental Effects (Section 5)

All environmental effects considered under section 67 of CEAA 2012 must result from a component of the project located on federal lands.

Environmental effects on federal lands

Biophysical Effects: any changes to the environment occurring on federal lands that are caused by the project are covered (see definition of “environment” in section 2 of CEAA 2012), as per subparagraph 5(1)(b)(i).

  • This means that all effects that the project causes to the environment can be considered without regard as to whether the effects are on “federal components of the environment” such as fish or migratory birds. In other words, the scope is as broad as the environment is. Effects to be examined can include air quality, water quality, soil, plants and wildlife, etc.

Socio-Economic Effects: effects of any changes to the environment on Aboriginal peoples, as per paragraph 5(1)(c), or the effects in several socioeconomic and cultural areas of a change to the environment that is linked to a federal decision, as per paragraph 5(2)(b).

Environmental effects outside federal lands

Biophysical Effects: changes that:

  • may be caused to fish and their habitat, shellfish and their habitat, crustaceans and their habitat, marine animals and their habitat, marine plants and migratory birds, as per paragraph 5(1)(a);
  • may occur in another province or outside Canada without regard as to whether the effects are on “federal components of the environment”; or
  • are linked to a federal decision, as per paragraph 5(2)(a) without regard as to whether the effects are on “federal components of the environment”.

Socio-Economic Effects: effects of any changes to the environment on Aboriginal peoples, as per paragraph 5(1)(c), or the effects in several socioeconomic and cultural areas of a change to the environment that is linked to a federal decision, as per paragraph 5(2)(b).

Federal Lands (Section 67)

Under the federal lands provision of CEAA 2012, an Authority must not make a decision about projects [2] on federal lands unless the project is determined to be unlikely to cause significant adverse environmental effects or the Governor in Council (GIC; i.e., Cabinet) decides that those effects are justified under subsection 69(3) of CEAA 2012. Authorities are required to consider the likelihood of significant adverse environmental effects before a project can proceed. Section 68, which covers projects outside of Canada, is not covered by this guidance document.

Referral to Governor in Council (Section 69)

If an Authority determines that the carrying out of a project on federal lands is likely to cause significant adverse environmental effects and the Authority would like the project to proceed, the Authority must refer the project to the GIC to decide whether those effects are justified in the circumstances. If the determination is made by an Authority other than a federal Minister, the referral will have to be made through the federal Minister responsible before Parliament for that Authority. When a matter has been referred to the GIC, the GIC must decide whether the significant adverse environmental effects are justified in the circumstances and must inform the Authority of its decision.

Exemptions (Section 70)

Section 70 of CEAA 2012 identifies specific circumstances under which an Authority will not have to determine whether a project is likely to cause significant adverse environmental effects before the project can proceed on federal lands. These include:

  • Instances where there are matters of national security in relation to a project;
  • When a project is to be carried out in response to a national emergency for which special temporary measures are being taken under the Emergencies Act; or
  • When a project is to be carried out in response to an emergency, and carrying out of the project without delay is in the interest of preventing damage to property or the environment or is in the interest of public health and safety.

Reporting (Sections 71 & 72)

CEAA 2012 also sets out requirements for annual reporting.

  • Under section 71 a Federal Authority must, at the end of each fiscal year, report to both Houses of Parliament on its activities under sections 67 to 69 during the previous fiscal year.
  • Under section 72 the Authorities set out in Schedule 3 of CEAA 2012 are required to report on their activities under Section 67 to 69 during the previous year and make that information available to the public.

Note: This guide does not provide guidance on reporting requirements.

Roles and Responsibilities

Many organizations, agencies and departments may be implicated by the requirements under CEAA 2012. To help ensure consistency in determination approaches across these different organizations, the following sections delineate the key roles and responsibilities.

Authorities

An Authority is defined in section 66 of CEAA 2012 as a Federal Authority; and any other body that is set out in Schedule 3 of CEAA 2012[3].

A Federal Authority is defined in section 2(1) of CEAA 2012 as: a Minister of the Crown in right of Canada; an agency of the Government of Canada or a parent Crown Corporation, as defined in subsection 83(1) of the Financial Administration Act, or any other body established by or under an Act of Parliament that is ultimately accountable through a Minister of the Crown in right of Canada to Parliament for the conduct of its affairs; any department or departmental corporation that is set out in Schedule I or II to the Financial Administration Act; and any other body that is set out in Schedule 1 of CEAA 2012.

An Authority has the discretion to decide how to conduct its determination of whether or not a project is likely to cause significant adverse environmental effects. The Authority is, however, bound by section 5 of CEAA 2012 which describes the environmental effects that are to be taken into account.

Multiple Authorities

It is likely that, for some projects on federal lands, more than one Authority may have responsibilities under Section 67. Authorities that are required to make a determination of significance on the same project are encouraged to work together in completing their analysis or producing a single report[4]. Each Authority will be required to make their own determination.

Expert Departments

Authorities may need to seek expert advice from other federal departments or agencies when making determinations. Expert departments and agencies are encouraged to work cooperatively and respond to requests for information and expertise in a timely manner. These departments and agencies are those that possess specialist information or knowledge with respect to a certain area that would be valuable in making a project determination.

Principles to Guide Determinations

There are a common set of principles which can guide all Authorities' determination processes.

  • Accountability – There should be clear accountability for ensuring environmental reviews are conducted and documented and results are reported. 
  • Analytical soundness – The research and analysis must be accurate and defensible, based on the best available information.
  • Application of professional judgement – All else notwithstanding, professional judgement should be applied at every step in this process to ensure environmental protection and sound decision making.
  • Appropriate level of effort – The approach and depth of analysis should be commensurate with the risk and likelihood of significant adverse environment effects associated with carrying out the project.
  • Appropriate use of precedent – Decisions around similar projects should be taken into account.
  • Cooperation – Authorities are encouraged to work cooperatively with one another on multi-jurisdictional projects.
  • Precautionary approach – Environmental protection and avoidance of likely significant adverse environmental effects should not be postponed for lack of full scientific certainty.

[2] In this instance, ‘decision about projects includes carrying out a project or exercising any power or performing any duty or function conferred on it under any Act of Parliament other than CEAA 2012

[3] At the time this document was produced, the only Authorities that are not federal Authorities are designated airport Authorities as defined in subsection 2(1) of the Airport Transfer (Miscellaneous Matters) Act.

[4] Legislated requirements for cooperation and coordination are limited to designated projects under CEAA 2012; however this guide recommends coordination and cooperation in order to better ensure efficiency and efficacy of the process.