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Health and Environmental Impact Assessment Law and Policy in Canada

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Title: Health and Environmental Impact Assessment Law and Policy in Canada


1
Health and Environmental Impact Assessment Law
and Policy in Canada
  • Facultad de Derecho
  • Universidad Nacional del Nordeste
  • Corrientes, 25 de noviembre del 2005
  • Marie-Claire Cordonier Segger, MEM (Yale), LLB,
    BCL (McGill), BA Hons (Carl)
  • Director, Centre for International Sustainable
    Development Law
  • Chevening Scholar, Oxford University Faculty of
    Law

2
Health and Environmental Impact Assessment Law
and Policy in Canada
  • Presentation Overview
  • 1. Canadian EIA Law Structure Scope
  • a. Federal Provincial EIA Law
  • 2. The Role of Health Considerations in Canadian
    EIA Law
  • a. Overview of Federal and Provincial
    Legislation
  • b. The Canadian Environmental Assessment Act
  • c. The Quebec Environmental Quality Act
  • d. The British Columbia Environmental Assessment
    Act
  • e. The Oldman River Dam Case
  • 3. The Impact of EIA Legislation on Trade
    Liberalization
  • a. Strategic Environmental Assessment
  • b. SEAs and Trade Negotiations
  • 4. Case Studies

3
Health and Environmental Impact Assessment Law
and Policy in Canada
  • 1
  • Canadian EIA Law
  • Structure Scope

4
Health and Environmental Impact Assessment Law
and Policy in Canada
  • 1. Canadian EIA Law Structure Scope
  • a. Federal Provincial EIA Law
  • Federal Legislation
  • Environmental Assessment and Review Process
    Guidelines Order, 1984 (EARPGO)
  • Canadian Environmental Assessment Act, 1992
    (CEAA)
  • Jurisdiction
  • Jurisdiction over the environment is shared
    between the provinces and the federal government.
  • The CEAA only applies when the federal government
    is a decision-maker - i.e. when the federal
    government is a proponent, land administrator,
    source of funding, or regulator.

5
Health and Environmental Impact Assessment Law
and Policy in Canada
  • 1. Canadian EIA Law Structure Scope
  • a. Federal Provincial EIA Law
  • Process
  • Describe the project in detail.
  • Evaluate the negative environmental effects.
  • Determine ways to eliminate or reduce the
    negative effects on the environment.
  • Find the best solution possible for the public,
    the environment and industry.
  • What Is a Project?
  • An activity in relation to a physical work.
  • An activity not related to a physical work which
    is described in the Inclusion List Regulations.
  • Exempt Projects
  • A project may be exempt if it is likely to have
    insignificant environmental effects is to be
    carried out in response to a national emergency
    is to be carried out in response to an emergency
    and the project is in the interest of preventing
    damage to property or the environment or is in
    the interest of public health or safety.

Source Canadian Environmental Assessment Agency,
online lthttp//www.ceaa-acee.gc.ca/gt
6
Health and Environmental Impact Assessment Law
and Policy in Canada
  • 1. Canadian EIA Law Structure Scope
  • a. Federal Provincial EIA Law
  • Examples of Projects Covered by the Inclusion
    List Regulations
  • National Parks Protected Areas
  • Oil Gas Projects
  • Nuclear Related Facilities
  • Defense
  • Transportation
  • Waste Management
  • Fisheries
  • Flora Fauna
  • Projects on Aboriginal Lands
  • Northern Projects
  • Forests

Source Canadian Environmental Assessment Agency,
online lthttp//www.ceaa-acee.gc.ca/gt
7
Health and Environmental Impact Assessment Law
and Policy in Canada
  • 2
  • The Role of Health Considerations in
  • Canadian EIA Law

8
Health and Environmental Impact Assessment Law
and Policy in Canada
  • 2. The Role of Health Considerations in Canadian
    EIA Law
  • a. Overview of Legislation

Requirements for Including Health in Selected
Canadian EA Legislation
Source Health Impact Assessment Task Force,
Canadian Handbook on Health Impact Assessment
(2004), online lthttp//www.hc-sc.gc.ca/ewh-semt/p
ubs/eval/handbook-guide/vol_1/acknow-remer_e.htmlgt
9
Health and Environmental Impact Assessment Law
and Policy in Canada
  • 2. The Role of Health Considerations in Canadian
    EIA Law
  • b. Canadian Environmental Assessment Act
  • The inclusion of health considerations in the
    CEAA
  • "environmental effect" means, in respect of a
    project,
  • (a) any change that the project may cause in the
    environment, including any change it may cause to
    a listed wildlife species, its critical habitat
    or the residences of individuals of that species,
    as those terms are defined in subsection 2(1) of
    the Species at Risk Act,
  • (b) any effect of any change referred to in
    paragraph (a) on
  • (i) health and socio-economic conditions
  • Criticism of the CEAA
  • The health component of environmental assessment
    focuses primarily on potential effects of
    projects on physical health,such as increased
    risks of mortality, morbidity and injuries.There
    is increasing interest in incorporating other
    aspects of health within the scope of EA,
    including the social, community and psychological
    dimensions of health and well-being.

Source Environmental Assessment and Human
Health Perspectives, Approaches, and Future
Directions - A Background Report for the
International Study of the Effectiveness of
Environmental Assessment (1997), online
lthttp//www.hc-sc.gc.ca/ewh-semt/pubs/eval/health-
perspective-sante/index_e.htmlgt
10
Health and Environmental Impact Assessment Law
and Policy in Canada
  • 2. The Role of Health Considerations in Canadian
    EIA Law
  • c. Quebec Environmental Quality Act
  • Emissions Discharges
  • Section 20 of the Quebec Environmental Quality
    Act states that nothing may be emitted or
    discharged into the environment that is likely
    to affect the life, health, safety, welfare or
    comfort of human beings, or to cause damage to or
    otherwise impair the quality of the soil,
    vegetation, wildlife or property.
  • Recent Developments the proposed amendment to
    the Quebec Charter of Rights and Freedoms to
    include the right to live in a healthy
    environment.

11
Health and Environmental Impact Assessment Law
and Policy in Canada
  • 2. The Role of Health Considerations in Canadian
    EIA Law
  • d. British Columbia Environmental Assessment
    Act
  • Environmental Effects
  • The BC Environmental Assessment Act incorporates
    health considerations into environmental
    assessment primarily by defining environmental
    effects as including health effects.
  • British Columbia, along with Quebec, was one of
    the first provinces to include health
    considerations in its environmental assessment
    legislation.
  • The definition of environmental effects as
    including anything other than the physical
    environment has been a controversial issue in
    Canada. This was an issue addressed by the Oldman
    River Dam Case in 1992.

12
Health and Environmental Impact Assessment Law
and Policy in Canada
  • 2. The Role of Health Considerations in Canadian
    EIA Law
  • e. Practice
  • Oldman River Dam Case (1992)
  • Issue Is EARPGO ultra vires the power of the
    Department of Environment Act because is requires
    the consideration of matters other than the
    physical environment?
  • - Justice La Forest EARPGO, which requires
    the decision maker to take socio-economic
    considerations into account in the environmental
    impact assessment, does not go beyond what is
    authorized by the Department of the Environment
    Act. The concept of "environmental quality" in s.
    6 of the Act is not confined to the biophysical
    environment alone. The environment is a
    diffuse subject matter and, subject to the
    constitutional imperatives, the potential
    consequences for a community's livelihood,
    health and other social matters from
    environmental change, are integral to decision
    making on matters affecting environmental quality.

13
Health and Environmental Impact Assessment Law
and Policy in Canada
  • 3
  • The Impact of EIA Legislation on
  • Trade Liberalization

14
Health and Environmental Impact Assessment Law
and Policy in Canada
  • 3. The Impact of EIA Legislation on Trade
    Liberalization
  • a. Strategic Environmental Assessment
  • 1999 Cabinet Directive on the Environmental
    Assessment of Policy, Plan and Program Proposals
  • Quasi-law
  • Calls for strategic environmental assessments
    (SEA) to be conducted for any policy, plan, or
    program proposal that is submitted to a Minister
    or to Cabinet for approval and that is likely to
    have important environmental effects, positive or
    negative.
  • Increased transparency As of January 1, 2004
    departments and agencies are now required to
    prepare a public statement of environmental
    effects when a detailed assessment of
    environmental effects has been conducted through
    an SEA.
  • SEA Process
  • Identify the economic effects of the negotiation
    in Canada
  • Identify the likely environmental impacts in
    Canada of such changes
  • Assess the significance of the likely
    environmental impacts and
  • Identify enhancement/mitigation options to
    inform the negotiation process.

15
Health and Environmental Impact Assessment Law
and Policy in Canada
  • 3. The Impact of EIA Legislation on Trade
    Liberalization
  • b. SEAs and Trade Negotiations
  • Example of Recent SEAs performed under the
    Directive
  • Initial Strategic Environmental Assessment
    Report of the Free Trade Area of the Americas
    Negotiations
  • - "The analysis performed for this Initial EA
    suggests that, in the aggregate, any effects that
    the FTAA negotiations may have on the Canadian
    environment are likely to be minimal due to one
    or a combination of the following reasons (1)
    further trade liberalisation affects only a small
    proportion of Canada's trade (the bulk already
    being subject to NAFTA and other regional free
    trade agreements) (2) federal and provincial
    environmental legislation that can mitigate
    negative effects is, or will soon be, in place
    (3) some negotiations seek to create a
    rules-based trading system, which will facilitate
    trade by creating a consistent international
    framework in which to conduct trade, but may not
    directly translate into increased production or
    trade."

16
Health and Environmental Impact Assessment Law
and Policy in Canada
  • 4
  • Case Studies

17
Health and Environmental Impact Assessment Law
and Policy in Canada
  • 4. Case Studies
  • a. The North West Territories Diamond Project
  • Description
  • In December 1994, a federal environmental
    assessment panel was appointed to review the
    environmental and socio-economic effects of the
    NWT Diamonds Project proposed by BHP Diamonds
    Inc. and the Blackwater Group. The proposal would
    involve open-pit and underground mining of five
    diamond-bearing deposits located about 300 km
    northeast of Yellowknife near Lac de Gras.
  • Outcome of the Environmental Assessment
  • The project was approved subject to a lengthy
    list of recommendations to mitigate the possible
    environmental and socio-economic effects of the
    mines. These recommendations included
  • Aboriginal land claims settlements.
  • Impact and benefits sharing agreements.
  • Monitoring and compensation for adverse effects
    on water quality and health.

18
Health and Environmental Impact Assessment Law
and Policy in Canada
  • 4. Case Studies
  • b. Trans Quebec Maritimes Pipeline Extension
    Project
  • Description
  • In 1998 Gazoduc Trans Quebec Maritimes Inc.
    (TQM) submitted a proposal to extend its natural
    gas pipeline from Lachenaie to the Quebec-New
    Hampshire border near East Hereford in order to
    consolidate Gaz Métropolitain's network and to
    meet the supply requirements of the Portland
    Natural Gas Transmission System (PNGTS). The
    pipeline, which is approximately 213 km long,
    would cross the river at Île aux Fermiers, the
    property of the Canadian Wildlife Service.
  • Outcome of the Environmental Assessment
  • This was the first major project where the
    proponent was asked to conduct an inventory of
    nesting avifauna. The consultant used the Guide
    pour l'évaluation des impacts sur les oiseaux to
    develop a sampling strategy which was later
    submitted for the Canadian Environmental
    Assessment Agencys approval. The proponent
    agreed to the recommended changes of its sampling
    protocol and developed an inventory by transects.
    The results showed that no rare, vulnerable or
    endangered species were breeding along the chosen
    route.

19
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