What is a Regional Assessment?

A regional assessment is an environmental impact assessment process through which the potential environmental, social, and economic effects of numerous proposed activities are assessed on a broad, regional scale. Whereas project-specific impact assessments only assess the potential effects of individual proposed projects, a regional assessment is a tool for assessing large-scale effects of a number of activities within a given region. 

Regional assessments are created and conducted under section 92 of Canada’s Impact Assessment Act (“IAA”). Under the IAA, the Minister of Environment and Climate Change (the “Minister”) may establish a committee or authorize the Impact Assessment Agency of Canada (the “Agency”) to conduct a regional assessment of the effects of existing or future physical activities. 

The Minister must establish Terms of Reference (“TOR”) to guide any regional assessment, and if the Minister creates a committee to conduct a regional assessment, the Minister must appoint the committee's members. Whether a committee or the Agency conducts a regional assessment, the body conducting the assessment must take into account any scientific information and Indigenous knowledge that is provided for the assessment. Additionally, the public must be provided with an opportunity for participation. 

When a regional assessment has been completed, the body that conducted the assessment must provide a report to the Minister. The IAA is silent on how a regional assessment report should or will be used.

What was the Newfoundland and Labrador Regional Assessment?

The Newfoundland and Labrador Regional Assessment was Canada’s first regional assessment. It was conducted to assess the potential regional effects of proposed offshore oil and gas exploratory drilling projects in the study area, which totals 735,000 square kilometers off the eastern shore of Newfoundland and Labrador. In September 2018, the Canadian Environmental Assessment Agency (now the Impact Assessment Agency of Canada) released a Draft Agreement for the Regional Assessment of Exploratory Oil and Gas Activities for the Offshore of Newfoundland and Labrador. A 30-day window for public commentary followed its release.

On April 15, 2019, the Agency published a Final Agreement for the Regional Assessment. The Agreement was designed to meet the requirements of the Canadian Environmental Assessment Act, 2012 as well as those of Canada's Impact Assessment Act, which replaced CEAA 2012 in August 2019. 

Ultimately, the Regional Assessment resulted in a Report that was submitted to Canada's Minister of Environment and Climate Change, and which may provide a foundation for Ministerial decision-making about proposed projects in the region in the future. Based on the Report, the Minister created a Regulation that exempts all future offshore exploratory oil and gas drilling projects from federal impact assessment.

Who conducted the Newfoundland and Labrador Regional Assessment?

Canada's Minister of Environment and Climate Change, with input from Ministers of the Government of Newfoundland and Labrador, established a five-member Regional Assessment Committee and mandated it to conduct a Regional Assessment of the effects of existing and anticipated exploratory drilling in an offshore area east of Newfoundland and Labrador. 

The Committee was required to conduct the Regional Assessment in keeping with legislative requirements and the Terms of Reference created by the Minister. Those requirements included engaging with the public and Indigenous groups.

The Committee was assisted by a Task Team, which was headed by the Canadian Environmental Assessment Agency (which later became the Impact Assessment Agency). The Task Team included members of the Canada-Newfoundland and Labrador Offshore Petroleum Board, Natural Resources Canada, and Newfoundland and Labrador's Department of Natural Resources. The Task Team was responsible for the Regional Assessment’s design, including its objectives, a work plan, process steps, knowledge and information requirements, resource needs, and measures for engagement. 

The Agreement for the Regional Assessment also called for the creation of a Technical Advisory Group (the “TAG”), which was meant to support the Task Team and Committee to gather relevant data and information, conduct technical analysis, and provide expertise for the Regional Assessment. Members of the TAG could be from within or outside of government, as long as they had knowledge or experience relevant to the Regional Assessment. 

What was the objective of the Regional Assessment?

The Regional Assessment Committee’s mandate was to conduct a regional assessment of offshore oil and gas exploratory drilling in the study area. Ultimately, the purpose of the Regional Assessment was to conduct a large-scale assessment of the potential effects of numerous new offshore oil and gas exploratory drilling projects that are contemplated for the region, and to provide information to the Minister of Environment and Climate Change that could inform environmental decision-making going forward. To that end, the Committee was required to submit a Final Report to the Minister and include advice on how best to use the results of the Regional Assessment to assist with Ministerial decision-making.

In carrying out its work, the Committee was guided by the Final Agreement that had been issued by the Canadian Environmental Assessment Agency in April 2019. That Agreement set out the factors that the Committee had to consider (listed in Appendix A) and the Committee’s terms of reference (listed in Appendix D). 

In general, the factors to be considered by the Committee generally reflected the factors that must be considered in a project-specific impact assessment, as described by section 22 of the Impact Assessment Act. They included:

• Changes to the environment, health, social or economic conditions;
• Mitigation measures;
• Impacts of exploratory drilling on Indigenous groups and adverse impacts on Indigenous rights under section 35 of Canada's Constitution Act, 1982;
• Purpose of and need for offshore exploratory drilling;
• Alternate means;
• Indigenous knowledge;
• Offshore exploratory drilling contribution to sustainability;
• Extent to which offshore exploratory drilling hinders or contributes to environmental obligations and climate change commitments; 
• Changes to offshore exploratory drilling caused by the environment;
• Requirements of follow-up programs;
• Public comments and comments from other jurisdictions during the Regional Assessment;
• Any assessments of offshore exploratory drilling effects conducted by an Indigenous governing body;
• Any study or plan conducted of a region within the study area, such as strategic environmental assessments;
• Intersection of sex and gender with other identify factors; and
• Other relevant matters.

How did the Newfoundland and Labrador Regional Assessment process work?

The Regional Assessment Committee was required to hold, at minimum, face-to-face meetings in Newfoundland and to provide the public with an opportunity to provide comments on its draft report. The Committee was required to complete its work by “Fall 2019”, which it interpreted as December 2019. The initial deadline was later extended to February 2020. 

A public registry housed on the website of the Canadian Environmental Assessment Agency (now the Impact Assessment Agency) was maintained by the Task Team to allow for public access. The registry compiled information that was used to develop the Regional Assessment, including submissions, reports, and comments received by the Task Team or Committee from the public and Indigenous groups. The registry was also meant to include information produced by the Task Team or Committee. The registry is still used by the agency to house additional information created through subsequent processes, including public comments on the regulations and announcements about the related follow-up program.

The Committee conducted a number of meetings during the spring and summer of 2019, which included meetings with the public, stakeholders and participants, and Indigenous nations and communities. In September 2019, it hosted the first (and only) Technical Advisory Group ("TAG") meetings. A total of five sessions with Indigenous groups and seven sessions with non-Indigenous groups were conducted. Meetings with Indigenous groups were organized around attending group interest, while the other sessions each focused on one of the following topics:

• Commercial fisheries;
• Marine birds;
• Geographical Information System;
• Oil spills;
• Cumulative effects;
• Marine fish and fish habitat; and
• Climate change.

The Committee conducted a number of separate TAG sessions with Indigenous communities.

Before each TAG session, a backgrounder document was provided to participants of each specific meeting, which had brief summaries of information and posed general discussion questions. TAG sessions were facilitated and lasted approximately two to three hours each. Later in the autumn of 2019, stakeholders were invited to participate in a literature review.

In December 2019, participants of the Regional Assessment process were invited to workshops to discuss draft recommendations. Two workshops occurred in early December, and they were held in St. John’s, Newfoundland, and Halifax, Nova Scotia, respectively. A separate workshop was also held in Truro, Nova Scotia, for Indigenous participants.

The Committee released its Draft Report on January 23, 2020. A 30-day window for public commentary followed. It closed on February 21, 2020. The Committee also opened public access to the GIS on February 03, 2020 for a public commentary period. 

The Committee sent its Final Report to the Minister of Environment and Climate Change on February 29, 2020. The Geographic Informational System (GIS) and its decision-support tool was completed on May 31, 2020.

What was the outcome of the Regional Assessment?

Despite the Committee's acknowledgement in the executive summary of its Final Report (page viii) that “Assessing and evaluating risk was beyond the timing and resources available to the Committee, but remains a fundamental requirement to guide future decision-making around sustainable use of offshore resources”, the Committee determined that no long-term adverse effects were anticipated, citing the conclusions of project-level environmental assessments and subsequent decisions of the regulator to approve exploratory drilling.

In its Final Report, the Committee reached a number of conclusions and recommendations, some of which were directed towards creating an improved regulatory regime for future exploratory drilling projects, whiles others were directed at government departments and agencies to conduct more research and work for the study area. The Committee also recommended a number of standard mitigation conditions that all future exploratory oil and gas drilling projects should meet to qualify for exemption under any potential regulation exempting those activities from impact assessments in the future. 

The Committee framed the Regional Assessment as an on-going process and recommended that a Regional Assessment Oversight Committee be established to provide on-going oversight and support for the Regional Assessment process. It also recommended that the GIS be treated as an evergreen process, to be continually updated with new information relevant to the Regional Assessment. 

In March 2002, the Minister of Environment and Climate Change released a proposal, based on the Final Report of the Regional Assessment Committee, to create regulations under subsection 112(1)(a.2) of Canada's Impact Assessment Act. After a public commentary period on the proposal that ended in April 2020, the Minister created regulations that exempt exploratory oil and gas drilling projects within the Regional Assessment study area from requiring impact assessments under Canada's Impact Assessment Act. 

Although the regulations establish conditions for proposed new exploratory oil and gas drilling projects that will be exempted from impact assessments, the regulations streamline future proposal and approval processes and make it easier for proposed new projects in the region to proceed. 

On November 04, 2020, the Canada-Newfoundland and Labrador Offshore Petroleum Board (CNLOPB) accepted a bid from BP Canada to explore a portion of the Northeast Newfoundland Slope Closure marine refuge, which is an environmentally sensitive marine refuge in the study region that was part of the Regional Assessment. It is the first bid to be accepted since the regulations were enacted. 

The Impact Agency of Canada has also begun the creation of an associated Follow-up Program for the Regional Assessment. Public submissions on the program's draft Terms of Reference are open until December 12th, 2020. 

What are the Regulations?

Under section 112(1)(a.2) of the Impact Assessment Act, the Minister may make regulations that designates a physical activity or classes of physical activities from among those specified in the Physical Activities Regulations. The regulation may:

• Establish conditions that, when met, exclude a physical activity or class of physical activities from designation under the Physical Activities Regulations.
• Establish the conditions that a proponent must provide to the Agency for a proposed project exempted

The creation of a regulation under s. 112(1)(a.2) is within the discretion of the Minister; however, the IAA requires that the Minister must first consider either a regional assessment (s. 92) or a strategic assessment (s. 93) that was conducted for the type or class of project to which the regulation would apply. Subsection 2(2) of Physical Activities Regulations make it clear that only two types of projects can be excluded from impact assessment by the Minister: offshore exploratory drilling; and offshore wind powers projects.

The Minister adopted the Regulations Respecting Excluded Physical Activities (Newfoundland and Labrador Offshore Exploratory Wells) on June 04, 2020. The regulations outline conditions for exemption of certain exploratory drilling projects within the Regional Assessment’s Study Area (specified in Schedule 1 of the regulations) from requiring impact assessment. 

The ministerial regulation eliminates the requirement for an impact assessment and replaces it

with a 90-day notification process. In addition to notification, projects will be required to meet some basic conditions for environmental protection that are set out in the regulation.

The regulation excludes all projects that meet the description in section 34 of the Physical Activities Regulations, namely, drilling, testing and abandonment of offshore exploratory wells in the first drilling program proposed by a proponent in an exploration licence provided by the Canada-Newfoundland and Labrador Offshore Petroleum Board (“CNLOPB”). The drilling program may be comprised of one or more exploratory wells, as well as associated activities.

The regulation applies to the entire regional assessment study area. In other words, exploratory drilling can take place anywhere within the study area without an impact assessment. In particularly sensitive areas such as effective area-based conservation measures areas like a marine refuge, aggregations of habitat forming corals and sponges, and Northwest Atlantic Fisheries Organization Fisheries Closure Areas (“special areas”) the regulation will require the proponent to submit additional information. 

What is the GIS?

The Geographic Information System (the “GIS”) was developed and billed as a key component of the Regional Assessment. It is referred to by the Committee as a “decision support tool”. It was completed on May 31, 2020. 

The GIS is fundamentally a geographic information data and mapping interface, which houses information gathered by the Committee during its Regional Assessment. 

The Committee conceptualized the GIS as a “evergreen” system that would be used on an ongoing basis and routinely updated with new relevant information.  The Committee intends for the Impact Assessment Agency of Canada to take over administration and hosting by the end of 2020. 

What was East Coast Environmental Law's role in the Regional Assessment?

East Coast Environmental Law applied for, and received, participant funding for the Regional Assessment. By participating in the Assessment process—alongside a number of other environmental non-governmental organizations that work in the Atlantic Region—we hoped to contribute meaningful input so that the information gathered by the Regional Assessment Committee could provide an appropriate foundation for future environmental decision-making by Canada's Minister of Environment and Climate Change.

East Coast Environmental Law lawyer Mike Kofahl took the lead on our participation in the Assessment process. On May 28, 2019, Mike participated in his first meeting with the Regional Assessment Committee. Afterwards, East Coast Environmental Law prepared a joint submission with the Sierra Club of Canada and the Ecology Action Centre to express concerns about the meeting and the plan for the Assessment process more generally. We provided that submission to the Canadian Environmental Assessment Agency on July 25, 2019. We sent a follow-up email to the Committee on September 9, 2019, reiterating our concerns. On September 19, 2019, the Committee provided us with an official response to our letter and email.

In September 2019, East Coast Environmental Law participated in several Technical Advisory Group sessions and provided input into those sessions. 

In October 2019, East Coast Environmental Law staff met with the Committee in St. John’s, Newfoundland, to raise ongoing concerns, provide information, and discuss various aspects of the Committee’s work. 

On December 17, 2019, East Coast Environmental Law sent a letter to the Minister of Environment and Climate Change—this one written in collaboration with the Balaena Institute for Cetacean Conservation Studies, the Ecology Action Centre and the Sierra Club of Canada. Again, the letter expressed concerns about the Regional Assessment process. 

After the Committee released its draft report on the Regional Assessment, East Coast Environmental Law reviewed the report carefully and submitted comments to the Committee.

East Coast Environmental Law submitted comments on the draft version of the Ministerial regulation that would exempt future offshore oil and gas exploratory drilling projects in the study area from future impact assessments. East Coast Environmental Law is also providing on-going support to the Ecology Action Centre in the judicial review of the Committee's report and the Minister's regulation. 

East Coast Environmental Law has received funding to provide comments on the proposed Terms of Reference for the Follow-up program to the Regional Assessment. 

What were East Coast Environmental Law's concerns with the Regional Assessment?

There was no assessment of risks

The Committee acknowledged in its Final Report to the Minister that assessing and evaluating risk of offshore oil and gas drilling was beyond its timing and resources.  There are gaps in risks for marine mammals, benthic species, corals, and sponges. The Committee acknowledged that it did not have access to relevant scientific studies that should have been included in the report.  These studies may have influenced the recommendations.  There is also very little risk analysis on oil spills.

The cumulative effects assessment was incomplete 

The Committee largely left assessment of cumulative effects of exploratory oil and gas projects to the future. It identified the land tenure process of the CNLOPB as the point in which the spatial and temporal distribution and intensity of future activities (part of cumulative effects) should be considered.  The exploratory drilling scenarios presented should at least provide the basis for forecasting reasonable extraction scenarios and conducting a cumulative effects assessment based on an intensity of extraction derived from past experience. These gaps include uncertainties in the effects of noise, seismic drilling, mitigation measures, ice, chronic oil pollution and other activities.

There was no meaningful public engagement 

Participants during the regional assessment process were frequently given materials and information at the last minute and given little time to provide commentary and feedback. Final public comments on the Draft Report were due only one week before the Final Report was provided to the Minister, making it unlikely (probably impossible) for the Committee to incorporate public feedback into the Final Report. 

Additionally, the Geographic Information System (“GIS”), which was heavily referenced and cited within the Draft Report,  was only opened to the public on February 3^rd. This meant that the public did not have access to all the information relevant to the regional assessment until almost two weeks into the 30-day public commentary period.  The GIS support tool is currently only partially available and, as such, its usefulness is extremely limited.  For example, the analytical capabilities of the GIS system must be upgraded in order to facilitate quantitative analyses, including cumulative effects. 

No areas within the Study Area are exempt from oil and gas 

The Committee stated that it had no scientific information on which it could recommend possible areas to be excluded from exploratory oil and gas drilling. That is despite the Committee’s own findings that special areas within the Study Area might be particularly vulnerable, and submissions from participants in the regional assessment process that special areas should be exempted from exploratory oil and gas drilling.  Scientific studies are currently being undertaken on Marine Refuges, Fisheries Closure Areas, and Vulnerable Marine Ecosystems and a five-year review period may be too long for the assessment to be updated.

An assessment of impacts on Canada’s climate commitments was narrow

The Committee’s assessment of the effects of exploratory oil and gas drilling projects on climate change, and specifically, greenhouse gases emissions, was narrow. Only GHG emissions from exploratory oil and gas drilling were included (potential emissions from future production projects was excluded) and methane was not included in the assessment. The Committee stated that it was limited to assessing exploratory oil and gas, despite including production facilitates and oil and gas generally when discussing potential benefits. 

No assessment of international obligations

While the Committee identified potential international conventions, which may create environmental obligations for Canada within the Study Area, it incorrectly concluded that exploratory oil and gas would have no effect on Canada’s obligations under these conventions. 

What has happened with the judicial review challenge of the Regional Assessment?

There are currently two judicial reviews before the Federal Court related to the Regional Assessment. These judicial review applications have been consolidated. 

On May 11, 2020 an application for judicial review of the Regional Assessment Committee’s Final Report was filed in Federal Court. The application was filed jointly by three parties: the Sierra Club Canada Foundation, a public environmentalist foundation; the World Wildlife Fund Canada, a charity focused on conservation; and the Ecology Action Centre, an environmental non-profit headquartered in Halifax. The Canadian environmental law organization Ecojustice is representing the applicants. 

The application seeks several outcomes, most notably:

• An order declaring that the Regional Assessment failed to comply with several sections of the Impact Assessment Actand thus is not a valid regional assessment;
• The Final Report being quashed and sent back to the Committee for completion in compliance with the IAA; 
• An order prohibiting the (then-proposed) IAA regulations from taking effect;
• An interim order prohibiting any future proposals of regulations until the judicial review application is decided, or alternatively an interim order staying the effects of the proposed regulations until the judicial review application is decided.

On June 29, 2020 the same applicants filed another application for judicial review of the Ministerial regulations that were created as a result of the Regional Assessment. The second application sought several outcomes, including:

• An orders declaring the regulations to be ultra vires(beyond the power) of the Minister’s jurisdiction and the Impact Assessment Act,and therefore invalid, and 
• A certiorariorder quashing the regulations.

The respondents in both judicial reviews are the Minister of Environment and Climate Change and the Attorney General of Canada. As of July 31, both applications were consolidated and will be heard together.

A hearing for the consolidated judicial review applications is not yet set. However, the Federal Court has already heard and dismissed a motion by the respondents to strike the judicial review of the Final Report. In the same motion, the court dismissed the Applicants’ request for an interim order staying the effect of the regulation until this Court issues its decision on the underlying application for judicial review. This means the regulations remain in effect.