Operational Policy Statement

Projects on Federal Lands and Outside Canada under the Canadian Environmental Assessment Act, 2012

June 2013

Disclaimer

The Operational Policy Statement Projects on Federal Lands and Outside Canada under the Canadian Environmental Assessment Act, 2012 is for information purposes only. It is not a substitute for the Canadian Environmental Assessment Act, 2012 (CEAA 2012) or any of its regulations. In the event of any inconsistency between this guide and CEAA 2012 or regulations, CEAA 2012 or regulations, as the case may be, would prevail.

For the most up-to-date versions of CEAA 2012 and regulations, please consult the Department of Justice website.

Purpose

The purpose of this Operational Policy Statement is to provide guidance with respect to projects to be carried out on federal lands or outside Canada as described in sections 66-72 of the Canadian Environmental Assessment Act 2012 (CEAA 2012).

This guidance document is intended for authorities who are responsible for making decisions on federal lands and outside Canada.

Background

CEAA 2012 distinguishes between designated projects1 and projects. For actions taken by an authority2 on federal lands3 or outside Canada, section 66 of CEAA 2012 defines a project as a physical activity that is carried out on federal lands or outside Canada in relation to a physical work and that is not a designated project.

A formal environmental assessment under CEAA 2012 is required by section 10(b) or by section 13 or 14 in respect of certain designated projects but is never required in respect of a project.

Although a project is never the subject of a formal environmental assessment under CEAA 2012, an authority is nonetheless required by section 67 of CEAA 2012 to determine the likelihood of significant adverse environmental effects that might result from a project being carried out on federal lands. A finding that such environmental effects are not likely or that they are likely but justified in the circumstances, according to a Governor in Council (GIC) decision, allows the authority to carry out the project on federal lands or exercise any power or perform any duty or function under an Act of Parliament other than CEAA 2012 that could permit the project on federal lands to be carried out, in whole or in part. Parallel requirements, as set out in section 68, are imposed on a federal authority that plans to carry out a project or provide financial assistance4 for the project to enable it to be carried out, in whole or in part, outside of Canada.

The environmental effects to be analysed under sections 67 and 68 of CEAA 2012 are identified in section 5.

Under CEAA 2012, environmental assessments of designated projects are to be conducted by responsible authorities. The only responsible authorities under CEAA 2012 are the Canadian Environmental Assessment Agency, the National Energy Board, and the Canadian Nuclear Safety Commission or a federal authority prescribed in regulations made under paragraph 83(b). At the time this document was produced, no federal authority had been appointed in such manner. Thus, the majority of authorities are not responsible for the conduct of environmental assessments. Accordingly, the only environmental analysis for which most authorities are directly responsible under CEAA 2012 is the analysis required by sections 67 and 68 regarding the likelihood of significant adverse environmental effects for projects on federal lands or outside of Canada.

Principles

Under CEAA 2012, an authority has discretion to determine how to conduct its analysis of whether or not a project is likely to cause significant adverse environmental effects.

The approach and depth of analysis should be commensurate with the risk and likelihood of significant adverse environmental effects associated with carrying out the project.

A project carried out on federal lands or outside Canada should be considered in a careful and precautionary manner to avoid significant adverse environmental effects.

Prohibitions under CEAA 2012

Under CEAA 2012, an authority must not carry out a project on federal lands, or exercise any power or perform any duty or function conferred on it under any Act of Parliament other than CEAA 2012 that could permit a project to be carried out, in whole or in part, on federal lands, or must not carry out a project outside Canada or provide financial assistance to enable, in whole or in part, a project to be carried out outside of Canada, unless:

  1. it has determined that the project is not likely to cause significant adverse environmental effects; or
  2. it has determined that the project is likely to cause significant adverse environmental effects and the GIC has subsequently determined that those effects are justified in the circumstances.

Conducting the Analysis

Under CEAA 2012, authorities have full discretion as to how to conduct their analysis towards making a determination in respect of significant adverse environmental effects under sections 67 or 68. They are, however, bound by section 5 of CEAA 2012, which describes the environmental effects that are to be taken into account. For projects that extend beyond federal lands, only the project components that are on federal lands will be considered in the analysis.

Each authority is encouraged to develop or utilize elements of a known environmental management process that meets its mandate and unique circumstances. The approach and depth of analysis is flexible and should be commensurate with the risk and likelihood of significant adverse environmental effects associated with carrying out the project. Many authorities have extensive experience in determining whether or not a routine project may potentially cause environmental effects and this experience should be applied in conducting future analyses.

The authority may need to seek expert advice from other federal departments or agencies when making its determination. Departments5 and agencies are encouraged to work cooperatively and respond to requests for information and expertise in a timely manner. CEAA 2012 does not set out specific timelines for departments and agencies that are providing advice.

In determining whether a project will likely cause significant adverse environmental effects, an authority should take into account potential mitigation measures. The determination of significance is made after assessing how these measures are likely to reduce environmental effects. As the circumstances warrant, authorities are encouraged to take into consideration public concerns related to projects on federal lands and outside Canada.

The determination of the likelihood of significant adverse environmental effects is the responsibility of the authority. If there is more than one authority conducting a project or performing a duty or function, each authority has to make a determination. For example, one authority could be providing funding, another could be the federal land administrator and another could be providing a regulatory permit. Authorities that have to make a determination of significance on the same project are encouraged to work together in completing their analysis or producing a single report.

In determining significance of adverse environmental effects of projects, authorities may want to take into consideration:

  • Whether the outcomes of the project are likely to exceed thresholds established under a regional study;
  • Whether the timing of the proposal could result in important interactions with the environment (i.e. construction or operation of a project during nesting season for migratory birds);
  • Whether examination of environmental effects and mitigation measures of other similar projects or designated projects could be applied to the current project;
  • Level of public concern at the local, national, and international levels;
  • The potential for cumulative effects;
  • Criteria such as scale, magnitude, duration, reversibility, and the ecological context of potential effects;

Environmental due diligence should take into consideration legal requirements as well as industry standards:

  • Legislative and regulatory requirements at the federal, provincial and municipal levels (e.g. Canadian Environmental Protection Act 1999, Species at Risk Act, Migratory Birds Convention Act, 1994, Fisheries Act, etc.);
  • Compliance or conformity with standards (applicable international codes, domestic standards, and other stated norms for compliance).

Federal lands and Aboriginal Consultation

The absence of an environmental assessment under CEAA 2012 on federal lands does not preclude an authority's obligation, prior to carrying out or authorizing a project, to assess and meet any Aboriginal consultation requirements that may apply. An authority must assess if its contemplated actions may trigger any obligations to consult based on current treaty provisions, statutory requirements or the constitutional duty to consult where federal conduct has the potential to adversely affect any potential or established Aboriginal or treaty rights6.

Where the duty to consult is triggered, an authority is required to develop a meaningful consultation process and, where appropriate, develop accommodation options. Authorities that have relied on the federal environmental assessment process of the former legislation to assist in meeting Aboriginal consultation requirements must develop their own approach for identifying and fulfilling any consultation requirements that may arise as a result of their proposed actions. In assessing and seeking to fulfill any Aboriginal consultation requirements, the authority should consult existing federal guidelines7 on fulfilling the duty to consult and accommodate and obtain any expert advice that may be necessary.

Regional Studies

In conducting its analysis towards making a determination in respect of significant adverse environmental effects under section 67 or 68, each authority is encouraged to make use of applicable regional studies. CEAA 2012 gives the Minister of the Environment the authority to establish a committee to carry out regional studies on federal land. A regional study links science to decision making in sensitive, high-risk ecosystems subject to multiple projects or designated projects. Regional studies will provide information that will assist authorities in engaging in meaningful public and Aboriginal consultation on the management of cumulative effects and the setting of acceptable thresholds.

Governor in Council Referral

Should an authority determine that a project on federal lands or outside of Canada is likely to cause significant adverse environmental effects, the authority may refer the project to GIC.

The GIC will determine if the significant adverse environmental effects are justified in the circumstances on the basis of information provided by the authorities and will inform the authority of its decision (as described under subsection 69(3)).

Where the authority decides not to request a decision from the GIC or where the GIC decides that those effects are not justified in the circumstances, the authority must not carry out the project on federal lands or exercise any power or perform any duty or function conferred on it under any Act of Parliament other than CEAA 2012 that could enable the project to be carried out, in whole or in part, on federal lands, or in whole or in part outside Canada.

Reporting on Activities

Authorities must report on their activities under sections 67 to 69. In accordance with section 71, a federal authority must table its report to each House of Parliament every fiscal year. An authority that is listed under Schedule 3 of CEAA 2012 (and is not a federal authority) does not have to report on its activities to Parliament, however it must make the information on its activities available to the public each year (as described in section 72).

Exemptions

Under certain circumstances8, an authority will not have to determine whether a project is likely to cause significant adverse environmental effects before the project proceeds on federal lands or outside Canada. This is the case when a project is:

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

Additional Guidance

A Reference Guide for the Canadian Environmental Assessment Act: Determining Whether a Project is Likely to Cause Significant Adverse Environmental Effects, 1994.

Updated Guidelines for Federal Officials to Fulfill the Duty to Consult

Publication Information

© Her Majesty the Queen in Right of Canada, 2013.

This publication may be reproduced for personal or internal use without permission, provided the source is fully acknowledged. However, multiple copy reproduction of this publication in whole or in part for purposes of distribution requires the prior written permission from the Minister of Public Works and Government Services Canada, Ottawa, Ontario K1A 0S5 or copyright.droitdauteur@pwgsc.gc.ca

Catalogue No.: En106-114/2013E-PDF

ISBN: 978-1-100-22023-9

This document has been issued in French under the title: Projets sur un territoire domanial et à l'étranger en vertu de la Loi canadienne sur l'évaluation environnementale (2012)

This document is also available in Adobe's Portable Document Format [PDF - 156 KB].


1 "Designated project" is defined in section 2(1) of CEAA 2012 as: one or more physical activities that are carried out in Canada or on federal lands; are designated by regulations made under paragraph 84(a) of CEAA 2012 or designated by an order made by the Minister of the Environment under subsection 14(2) of CEAA 2012; and are linked to the same federal authority as specified in those regulations or that order. It includes any physical activity that is incidental to those physical activities.

2 "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. "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.

3 Federal lands are defined in section 2(1) of CEAA 2012 as: lands that belong to Her Majesty in right of Canada, or that Canada has the power to dispose of, and all waters on and airspace above those lands, other than lands under the administration and control of the Commissioner of Yukon, the Northwest Territories or Nunavut; the internal waters of Canada, in any area of the sea not within a province, the territorial sea of Canada in any area of the sea not within a province, the exclusive economic zone of Canada, and the continental shelf of Canada; and reserves, surrendered lands and any other lands that are set apart for the use and benefit of a band and that are subject to the Indian Act, and all waters on and airspace above those reserves or lands.

4 Financial assistance includes any assistance given by an authority that renders the project, from a financial perspective, less burdensome or more feasible. Some examples of financial assistance are grants, loans, guarantees, and the setting of rent at a discounted rate (i.e. below fair market value).

5 Section 20 of CEAA 2012 requires every federal authority that is in possession of specialist or expert information or knowledge with respect to a designated project that is subject to an environmental assessment to make, on request, that information or knowledge available to entities as specified in that provision "within the specified period". No similar requirement is in CEAA 2012 with respect to a project. The absence of a legal requirement does not prevent administrative cooperation between federal Government entities.

6 A potential adverse impact on asserted or established Aboriginal or treaty rights or interests is sufficient to trigger the common law duty to consult. It is not necessary that there be a "significant adverse environmental effect" in order for such a duty to consult to be triggered.

7 It is suggested that authorities familiarize themselves with the Updated Guidelines for Federal Officials to Fulfill the Duty to Consult – March 2011 which are available online.

8 As set out in section 70 of CEAA 2012.


Annex: Projects on Federal Lands and Outside Canada under the Canadian Environmental Assessment Act 2012

These questions and answers pertain to sections 5 and 66 to 72 of the Canadian Environmental Assessment Act, 2012 (CEAA 2012).

Federal lands

How do authorities make a determination of the likelihood of a project causing significant adverse environmental effects?

The CEAA 2012 does not prescribe how authorities should determine whether or not a project is likely to cause significant adverse environmental effects. Hence, authorities are given flexibility to design their own approach towards making such a determination. However, it should be noted that the project must be in compliance with other applicable legislation (for example the Fisheries Act, the Species at Risk Act, the Migratory Birds Convention Act, 1994, etc.). When determining whether or not a project is likely to cause significant adverse environmental effects, authorities may take into account:

  • Approaches, processes, procedures, and techniques that were applied under the Canadian Environmental Assessment Act, S.C. 1992, c.37 (the former legislation), and in particular, elements of the screening environmental assessment process that were followed under the former legislation; although authorities also have flexibility to create variations of that process or another process.
  • Performance standards, codes of good practice, prior equivalent project reviews (under the former legislation, and projects and designated projects under CEAA 2012), professional judgment and other mechanisms.
  • Concrete Federal Sustainable Development Strategy goals and targets.
  • Where applicable, thresholds established under a regional study, land use plan, or those developed for a specific project (under the former legislation, and projects and designated projects under CEAA 2012).
  • Results of a strategic environmental assessment.

Will the public be informed of proposed projects on federal lands? How would an authority's activities on federal lands be reported to the public?

Authorities do not have to inform the public prior to making a determination regarding whether or not a project is likely to cause significant adverse environmental effects. Nevertheless, under the spirit of transparency and accountability, the Canadian Environmental Assessment Agency encourages authorities to inform the public of proposed projects on federal lands in order to take into account concerns of the public with respect to such projects.

Each year, the public will be informed – either directly or indirectly, of the activities under sections 67 – 69 of CEAA 2012. Federal authorities must report to each House of Parliament and authorities that are listed in Schedule 3 of CEAA 2012 must make the information on their activities available to the public.

Do authorities have to meet legislated timelines for projects on federal lands?

The timelines in CEAA 2012 apply only to designated projects. However, determinations under section 67 for projects on federal lands should be made in a timely fashion so that projects are not delayed unnecessarily and mitigation measures can be built into the project design.

How does an authority ensure that it receives timely advice from other departments?

For designated projects, CEAA 2012 requires every federal authority that is in the possession of specialist or expert information or knowledge to make it available, on request, to specified government entities within a specified time period. There is no similar requirement in CEAA 2012 with respect to a project on federal lands.

Nevertheless, the Canadian Environmental Assessment Agency encourages federal authorities to work cooperatively when dealing with projects on federal lands. Approaches, processes, procedures, and techniques that were used for screening-type EAs under the former legislation may be useful for authorities communicating with each other.

What environmental effects should authorities examine on determinations required under section 67?

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

Direct 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 the Act), 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.

Indirect 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

Direct 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".

Indirect 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).

Would section 19 of CEAA 2012, regarding factors to be considered in an environmental assessment, apply to projects on federal lands?

Section 19 does not apply to projects on federal lands. However, when an authority is making a determination as to whether or not the carrying out the project is likely to cause significant adverse environmental effects, section 19 may be a useful guide in determining what to consider in an authority's analysis towards making such a determination.

Regarding projects, how will the federal Crown meet its legal duty to consult with Aboriginal groups to ensure that its conduct does not adversely affect asserted or established Aboriginal or Treaty rights or interests?

Federal Crown conduct gives rise to a legal duty to consult and, if appropriate, accommodate Aboriginal groups where that conduct may potentially affect asserted or established Aboriginal or treaty rights or interests. The approach that was used by the federal Crown to fulfill such duty in the context of screening-type environmental assessments under the former legislation provides good guidance towards meeting that duty. However, every situation is unique, and this will be reflected in the approach used by the federal Crown.

On reserve lands that are set apart for the use and benefit of bands under the Indian Act, how will the federal government ensure that decisions on projects can proceed in an environmentally responsible manner?

In collaboration with the First Nation on reserve, Aboriginal Affairs and Northern Development Canada and other authorities (as applicable) will work closely with each Band council to ensure that decisions are made in an environmentally responsible manner. The authorities must not exercise any power or perform any duty or function conferred on them under a federal Act other than CEAA 2012 that would permit a project to be carried out, in whole or in part, on federal lands until it is determined that carrying out the project is not likely to cause significant adverse environmental effects or that these effects are justified in the circumstances. Environmental review and management systems will be in place to properly inform such decisions.

What happens if the authority determines that carrying out a project is likely to cause significant adverse environmental effects? What are the next steps?

If an authority determines that carrying out a project is likely to cause significant adverse environmental effects, the authority may seek a Governor in Council (GIC) decision on whether or not the significant adverse environmental effects are justified in the circumstances. The authority would be responsible for ensuring that the GIC has all relevant information to make its decision.

Where the authority does not request such a decision from the GIC, the authority is not authorized to carry out the project or exercise a power or perform a duty or function under a federal Act other than CEAA 2012 that would permit the project to be carried out, in whole or in part, on federal lands.

If the GIC determines that the significant adverse environmental effects are justified in the circumstances, the authority will be authorized to carry out the project or exercise a power or perform a duty or function under a federal Act other than CEAA 2012 that would permit the project to be carried out, in whole or in part, on federal lands and the authority will be required to report such activity in accordance with sections 71 and 72 of CEAA 2012.

Although CEAA 2012 does not require it, the authority may issue a public statement prior to the authority's annual reporting (for example, in circumstances where there was a high degree of public concern or interest in a proposed project) on whether the project will be carried out.

How will an authority ensure that the proponent will carry out mitigation measures associated with a proposed project?

Under CEAA 2012, there are enforcement provisions to ensure the implementation of mitigation measures specified within the EA decision statement for designated projects. For projects on federal lands an EA decision statement is not issued. However, authorities who make a determination on whether or not a project should be carried out on federal lands will, in most cases, issue a permit or authorization, and/or prepare some other form of agreement, to which mitigation measures can be linked. The proponent would have to implement mitigation measures in order not to contravene the terms of the authorization or agreement.

For example, if an authority requests that mitigation measures be implemented and they are not carried out for a particular project, a proponent could be in contravention of the permit or agreement that was signed. Any enforcement mechanisms would be specific to the legal regime that governs the issuance of the permit or the approval of the agreement.

Can regional studies be used in the analysis for determining significant adverse environmental effects?

Yes, regional studies and regional planning tools can be used to support the analysis of a project to be carried out, in whole or in part, on federal lands if the information would help the authority's analysis and determination of whether or not the carrying out of the project is likely to cause significant adverse environmental effects.

If an authority supports a project with funding, for a project on federal land that is administered by another authority, which authority is responsible for making the determination whether the project may result in significant adverse environmental effects, the one providing the funding or the land administrator?

Both authorities would have a responsibility to ensure that carrying out the project will not result in significant adverse environmental effects if both authorities are exercising a power, duty or function conferred on it by an Act of Parliament (i.e., if both have an obligation under section 67). As well, both authorities would have a duty to report on their activities in relation to the project. Authorities are encouraged to work cooperatively on their analysis and decision making.

What are the regulations under CEAA 2012?

The regulations that are currently in force under CEAA 2012 are:

  • Prescribed Information for the Description of a Designated Project Regulations;
  • Cost Recovery Regulations;
  • Regulations Designating Physical Activities

All regulations under the former legislation are repealed.

Outside Canada

What are some examples of projects outside of Canada?

A federal authority (FA) may contribute funding to a project proposal such as a community development initiative. The FA may also be the proponent of a project proposal, for example, on embassy property.

What FAs will have responsibilities for projects outside of Canada under CEAA 2012?

FAs that have an international mandate and have carried out environmental assessments or contributed funding to a project proposal in the past, under the former legislation, will likely still be carrying out or funding project proposals outside Canada in the future.

If an FA is carrying out or providing financial assistance for a project outside of Canada, is there a requirement to conduct an environmental assessment?

Projects outside Canada are not subject to an environmental assessment as they are not designated projects under CEAA 2012. However, a determination of whether or not carrying out a project is likely to cause significant adverse environmental effects would be required under section 68 of CEAA 2012. In addition, the project would need to comply with local environmental laws and regulations of the jurisdiction outside Canada where it would be carried out. Under local environmental laws, a requirement to assess the "environmental effects" of the project may also apply.

How will the international public be informed of projects being carried out or funded by FAs outside Canada? How will FAs' activities outside of Canada be reported?

Local laws and regulations for projects may require that the public be informed. FAs should seek public input where it will inform their analysis. Under CEAA 2012, FAs are required to report to Parliament on their activities outside Canada each year.

Are there timelines that FAs have to meet when carrying out a project outside Canada?

CEAA 2012 does not specify timelines for making a determination as to whether or not the carrying out of the project outside Canada will cause significant adverse environmental effects. Federal authorities are encouraged to follow best practices and already established internal timelines. Under local laws and regulations, there may be timelines that have to be met.