The Canadian Environmental Assessment Act 2012 and Aboriginal Consultation

1. The Canadian Environmental Assessment Act 2012 and Aboriginal Consultation November 2012

2. Outline • Overview of CEAA 2012 • Aboriginal consultation and expectations • Key process steps of CEAA 2012 • Harmonization with provinces • Public participation

3. Major Changes in CEAA 2012 Former Act CEAA 2012 EA responsibility within CEA Agency, NEB, CNSC Applies to Proponents Focus on projects with greater environmental risk — 2 types of EA (Standard and Review Panel) Focus on federal jurisdiction with EA off ramp Timelines for key EA steps — 10d (Project Description), 45d (Screening), 60d (Panel Referral), 365d (Standard EA) or 24mo (Review Panel) EA Decision Statement with enforceable conditions Cooperation, substitution and equivalency with provinces except projects referred to Review Panels EA responsibility within many departments Applies to federal departments/Agencies with decision on a Proponent’s project Applies broadly to many project types and sizes — 3 types of EA Environmental effects defined broadly Overall timeline for Comprehensive Studies Enforcement of EA conditions done through permits and sometimes challenging Cooperation with provinces -3-

4. EA Processes & Timelines EA starts Limitfor referral to review panel Pre-EA EA Commencement Conduct the Analysis EAReport EADecision Compliance & Enforcement 245 days** EA by the Agency 55 days* Max 365 days** 60 days 60 days Review Panel Max 24 months** * Includes 10 days to reviewproject description and 45 days to determinewhether an EA is required ** Government time only, federalclockmaybestoppedwhen the proponent is required to provide information

5. Aboriginal Consultation • Crown has legal duty to consult Aboriginal peoples about potential impact on their rights of decisions associated with federal conduct • Agency will continue to integrate consultation into EA process to the greatest extent possible • CEAA 2012 includes requirement to assess changes to the environment that affect aboriginal peoples • Participant funding program will continue to provide capacity funding to enable Aboriginal groups to engage in consultations • Type of expenses covered: fees for expert advice, travel expenses, purchase of relevant information materials, information collection and dissemination costs, among others

6. 3 - CoordinatedApproach to Aboriginal Consultation • Agency coordinates federal Aboriginal consultation activities during the EA process • Provides Aboriginal gro ups with opportunity to comment on: • potential environmental effects of the project and how they should be included in the EA • the potential impacts of a project on potential or established Aboriginal or Treaty rights • mitigation and accommodation measures • follow-up programs • May not always lead to “agreed to” accommodation

7. Integration of Aboriginal Consultation into the environmental assessment process Environmental Assessment Process Phase 1: Pre-EA Planning Phase 2: EIS Guidelines Phase 3: EIS Review and Draft EA Report Phase 4: EA Report Review Phase 5: EA Decision Phase 6: Compliance and Enforcement PD Review and EA Determination Key Consultation Activities for Aboriginal Groups • Comment on EIS (technical studies and analysis) • Comment on the proposed consultation workplan • Receive information about participant funding program • Participate in consultation activities, as per workplan • Receive EA determination notification letter from the Agency • Have preliminary discussions with the proponent • Receive EA determination decision letter from the Agency • Comment on Environmental Impact Statement (EIS) Guidelines (the terms of reference) • Comment on the draft EA Report, including the Aboriginal consultation summary • Participate in consultation activities, as per workplan • Notified of the Minister’s EA Decision • Engagement as appropriate on: • Outstanding impacts identified in the EA • Mitigation and follow-up programs

8. Environmental Effects • Change that may be caused to fish and fish habitat, aquatic species or migratory birds • Change to the environment that would occur on federal lands or in a province other than the site of the project or outside Canada • With respect to Aboriginal peoples, an effect of any change to the environment on • health and socio-economic conditions • physical and cultural heritage • current use of lands and resources for traditional purposes • elements of historical, archaeological, paleontological or architectural significance • Changes to the environment other than those above directly linked or necessarily incidental to federal decisions

9. Determining if an EA is Needed • Regulations Designating Physical Activities (“project list”) describes projects that may be subject to a federal EA • Minister of the Environment may designate a project not on the list • Proponents of designated projects must provide the Agency with a project description • Information requirements are set out in the Prescribed Information for the Description of a Designated Project Regulations • Includes a requirement to identify Aboriginal Groups that may be interested in, or potentially affected by, the designated project

10. Determining if an EA is Needed(cont’d) • Agency has 45-days, including a 20-day public comment period, to decide whether to require an EA • Agency must consider: • description of the project, • possibility of adverse environmental effects • comments received during the comment period • results of any relevant regional studies • Once the Agency accepts a project description, Aboriginal groups will be notified in writing of the potential federal EA and will be sent a copy of the PD for their comments • CNSC/NEB regulated projects skip screening step and automatically require an EA

11. Types of EA and CooperativeMechanisms Designated Project *Substitution and equivalency do not apply to EAsconducted by Review Panels onr by NEB or CNSC 11

12. Substitution [s. 32 to 36] Substitution enables a provincial process to substitute for the federal EA process • Substitution does not apply to review panels or projects regulated by the CNSC or the NEB [s. 33] • Upon request, the Minister must allow a provincial process to substitute or may approve the substitution to another jurisdiction if: • of the opinion that the process will be an appropriate substitute [ss. 32(1), 32(2)], and • satisfied that conditions for substitution will be met [ss. 34(1)] • EA decision for substituted EA remains with Minister [s.36]

13. Equivalency[s. 37] • If substitution to a province has been granted by the Minister, Governor in Council (GIC) may exempt a designated project from application of CEAA 2012. • Equivalency covers both EA process and decision-making • GIC must be satisfied that: • conditions for substitution are met • upon completion of the EA, the province makes determination of significance of environmental effects • province ensures implementation of mitigation measures & implementation of follow-up program, and • any other conditions that the Minister establishes will be met

14. Regional Studies • Minister of the Environment may appoint a “committee” (similar to a review panel) to conduct regional studies • Need agreement and cooperation of other jurisdictions for regions not entirely made up of federal lands • Will incorporate traditional knowledge and use studies • Results of a regional study created under CEAA 2012 must be considered during the screening step when determining if an EA is required and during an EA

15. Public Participation Provided for throughout the EA processes: • public comment period when the Agency is determining whether an EA is required[s.9] • an opportunity for public participation is provided during the conduct of EAs by the RA [s.24] • public comment period on draft EA report for projects assessed by the Agency [par.25(1)(b)] • review panels are required to hold public hearings during which interested parties can participate [par.43(1)(c)] • review panels also consider written comments from public

16. Roles and Responsibilities Aboriginal Groups • Identify potential impacts on potential or established Aboriginal or Treaty Rights • Share relevant information regarding potential impacts • Participate in identifying resolution to issues • CEAA- Crown Consultation Coordination • Coordinate consultation during EA phase • Manages Aboriginal funding • Maintain crown record for EA phase Major Project Management Officer (MPMO) • Oversees crown consultation effort post EA phase • Receives crown consultation record from CEAA • Federal Departments • Participate in consultation • Address obligations that arise during consultation relevant/appropriate for their mandate • Aboriginal and Northern Affairs Development Canada (AANDC) • Supports consultation through advice on Treaty Rights, training, development of consultation protocols and MOUs

17. Questions?