Summary of SPECIAL SESSION: Bill C-38 – Understanding the Changes

Presentations from this session are available.

The EMA of BC attracted a capacity crowd of 180 environmental managers, lawyers, scientists, engineers, and others to hear two expert panels discuss the implications of Bill C-38 on environmental practice in British Columbia during a special session held September 13, 2012. The large attendance at SFU Harbour Centre demonstrated the level of interest in this legislation amongst the Province’s environmental professionals.

The audience listened to seven speakers talk about the changes that the Federal Budget Omnibus Bill brought to two specific areas of federal legislation: the Canadian Environmental Assessment Act (CEAA) and the Fisheries Act. A recurring message throughout the three-hour event was that the changes make a clear difference to environmental management in Canada, but the implications of these changes will only be fully understood once guidance has been developed and case law is created.

The Environmental Assessment Panel

The Environmental Assessment Panel featured Deborah Overholt, a partner at the law firm Borden Ladner Gervais LLP; Malcom Smith from the environmental consulting firm Hemmera; and Michelle Carr from the BC Environmental Assessment Office. They each presented summaries of changes to CEAA from their specific viewpoints, including important transitional provisions made for projects already in the federal Environmental Assessment (EA) process. Bill C-38 repeals and replaces CEAA with legislation that aims to deliver increased efficiency and improved outcomes to the EA process.

Key Messages of the Environmental Assessment Panel
The panel identified that Bill C-38 changes will bring about the following changes and implications:

  • Fewer federal EAs – related only to designated projects rather than the previous range of federal triggers. This may help focus limited resources on the review of higher risk projects, rather than large numbers of low risk projects.
  • Fewer responsible authorities – comprising only National Energy Board, Canadian Nuclear Safety Commission, CEA Agency, and others added by regulation.
  • Fixed timescales – including those for screening, referrals, decisions, and review panels.
  • A focus on federal jurisdiction for federal EAs – specifically fish and fish habitat, aquatic species defined by the Species at Risk Act, migratory birds, other specified components of the environment, federal lands, and aboriginal peoples.
  • The option for substitution between federal and provincial EA processes, as long as the provincial EA process is an appropriate substitute. A federal decision will still be required if a substituted provincial process is undertaken.
  • There will likely be a higher emphasis on ensuring compliance of commitments made and conditions of approval.

Key Questions Posed to the Environmental Assessment Panel
The question and answer period included the following thoughtful questions from the audience:

  • Will proponent commitments be looked at more carefully and treated as conditions of approval that must be complied with?
  • What tools will be available to the authorities to manage non-compliance of commitments made by a proponent?
  • How will substitution of federal and provincial EA processes work for other provinces? When substitution is applied, will there be uniformity across Canada?
  • In cases where the province and Canada (federal) have different requirements for consultation, including a different interpretation of strength of claim, how will the Canadian Environmental Assessment Agency ensure appropriate consultation by the province during a substituted EA?
  • If a project is not a designated project, how would the federal responsible authority conclude that the project would not cause a significant adverse effect?
  • Will the Environmental Assessment Office budget be increased to handle extra work load arising from these changes?

The Fisheries Act Panel

The Fisheries Act Panel featured Daniel Kiselbach, a partner at the law firm Miller Thompson LLP; Todd Gerhart, Associate Chief Federal Prosecutor; and Megan Hanacek from the Association of Professional Biology. They outlined the changes to the federal Fisheries Act, with emphasis on the move to protecting “fisheries” rather than all fish, the use of the term “serious harm”, and the application of significant mandatory minimum fines for non-compliance. Some of the changes brought by Bill C-38 are already in force, while others will be applied later through an order in council.

Key Messages of the Fisheries Act Panel
Key comments provided by the panel included the following:

  • The Fisheries Act is considered as one of the most powerful and regularly applied pieces of environmental legislation in Canada.
  • The federal government’s position in bringing about changes through Bill C-38 was that the Fisheries Act was outdated and unfocused in balancing environmental and economic needs.
  • The part of Bill C-38 that has already changed the Fisheries Act is the expansion of the “harmful alteration, disruption or destruction” (HADD) provision to include “activities”, as well as works or undertakings that are subject to the prohibition.
  • The other amendments to the Fisheries Act will be brought in at a date set by the Governor in Council.
  • The revised Fisheries Act will apply to commercial, recreational, or aboriginal fisheries.
  • It is not yet clear how the revised Fisheries Act will apply to fish that support fisheries (e.g. fish that are food for fish in a fishery).
  • The amendments include major change to the HADD provision to focus on “serious harm” to certain fish. “Serious harm” includes the death of certain fish and permanent alteration of fish habitat.
  • Once the serious harm amendments are in place, there may not be grounds to prosecute cases that do not cause death of fish or the destruction or permanent alteration of fish habitat.
  • It is uncertain how permanent alteration of fish habitat will be established, given that ecological systems generally recover, albeit to altered states.
  • There will be challenges in proving that a project caused the death of fish, given that fish carcasses can move down river or may be eaten.
  • Significant fines will be imposed for non-compliance, with these fines increasing significantly for subsequent non-compliance.
  • The serious harm test will require biologists to develop new baseline analyses of what constitutes serious harm, and may mean a movement away from habitat-based models.

Key Questions Posed to the Fisheries Act Panel

  • Is it likely there will be less enforcement as the minimum fines are so high?
  • Will people be more likely to contest fines?
  • What is the current level of prosecution under the Fisheries Act?
  • Will work window requirements no longer be applied because of the exclusion of temporary alteration?
  • Where will guidance come from for local government to advise people who may be making changes that could be governed by the Fisheries Act?
  • How would we be able to prove that a water body is not part of a fishery?
  • Has the focus of the environmental legislation been moved from fish to fisheries as an economic activity?
  • Will there still be a requirement for habitat compensation and will the calculation for determining compensation requirements be the same?
  • Given that rivers are very dynamic, how would permanent change be defined and over what timescale?
  • How will these changes affect the Riparian Areas Regulation?

The two panels generated engaging debates during the question and answer periods, reflecting the interest in Bill C-38 among the environmental management community. The special session concluded with Mark Leung, EMA of BC’s chairperson for the day, asking the audience to make suggestions for further events on what would likely be a recurring theme for the organisation.

Event Sponsors

The event was generously sponsored by Borden Ladner Gervais LLP, with drinks and snacks provided by Maxxam Analytics. The Environmental Assessment Panel and the Fisheries Act Panel were sponsored by AGAT Laboratories and Miller Thomson LLP, respectively. Thank you for your support to make the event possible.

The EMA of BC also thanks the panel members for contributing their expertise:

  • Moderator: William McNaughton, Partner, Borden Ladner Gervais LLP
  • Environmental Assessment Panel: Deborah Overholt, Partner, Borden Ladner Gervais LLP; Michelle Carr, Executive Director, Policy and Quality Assurance, BC Environmental Assessment Office; Malcolm Smith, Hemmera
  • Fisheries Act Panel: Daniel Kiselbach, Partner, Miller Thomson LLP; Todd Gerhart, Associate Chief Federal Prosecutor, Public Prosecution Service of Canada; Megan Hanacek, Managing Director, Association of Professional Biology

The information reported by the EMA of BC reflects our understanding of the views and opinions of the panelists and should not be construed as legal advice.  For specific advice, please consult knowledgeable environmental consultants and lawyers.