February 20, 2018
On February 8, 2018, the Canadian federal government proposed a new Impact Assessment Act in Bill C-69, An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigation Protection Act and to make consequential amendments to other Acts. The newly proposed Impact Assessment Act doesn’t implement a wholly new regulatory regime for the offshore oil and gas sector (as the Canadian Energy Regulator Act does for the offshore renewable energy sector). But it is clear that under the new Impact Assessment Act, the existing Offshore Boards – the Canada-Nova Scotia Offshore Petroleum Board (CNSOPB) and the Canada-Newfoundland and Labrador Offshore Petroleum Board (CNLOPB) – will play a clearer – and ultimately greater – role in the new impact assessment regime for offshore oil and gas activities.
Offshore Boards’ Current Role. Major offshore oil and gas activities trigger environmental assessments under the existing federal environmental assessment law, the Canadian Environmental Assessment Act, 2012 (CEAA 2012). CEAA 2012 assigns responsibility for environmental assessments of various activities in a so-called “designated project list” to particular federal agencies, called the “responsible authority.” Currently, the Canadian Environmental Assessment Agency (CEA Agency) is the responsible authority for offshore activities. In 2015-2016, the federal government began the process to make the Offshore Boards responsible authorities under CEAA 2012, but never completed it; the CEA Agency remains responsible for major offshore environmental assessments. Under the current law, Offshore Boards don’t participate directly in assessing major offshore projects; however, they are responsible for environmental assessments for smaller activities that don’t trigger environmental assessments under CEAA 2012.
Offshore Boards’ New Role. With the proposed Impact Assessment Act the CEA Agency will continue, but under a new name: the Impact Assessment Agency (IA Agency). The Impact Assessment Act won’t change the basic assignment of responsibility for impact assessments of offshore oil and gas activities that are on the project list or designated by the Minister, despite some public discussion about the Offshore Boards assuming responsibility for them under the new regime. The IA Agency will continue to be in charge of impact assessments for offshore activities on the designated project list; the Offshore Boards will continue to conduct environmental assessments for smaller projects that are not. But the Impact Assessment Act will change the Offshore Boards’ role in impact assessments in other ways, giving Offshore Board expertise a clearer – and ultimately greater – role in the assessment process. The Impact Assessment Act mandates the inclusion of Offshore Board expertise on impact assessment review panels. And while it’s not yet clear how the designated project list might change, if an impact assessment is required for a designated offshore oil and gas project the Minister will have no choice but to order a review panel assessment.
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