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Supreme Court of Canada Restricts Federal Discretion in Environmental Assessments

03-Feb-10

By Stuart Chambers, Energy, Environmental & Regulatory

In its recent decision in MiningWatch Canada v. Canada (Fisheries and Oceans) ("Red Chris"), the Supreme Court of Canada issued a significant reconsideration of the law applying to federal environmental assessments. Under this new guidance from the Supreme Court, the primary power to determine the scope of a project which may have an environmental impact is returned to the project proponent, while the federal regulators now have significantly less discretion to alter that scope (and, apparently, none at all to narrow it). This is an important development, of interest to all proponents of projects which will have an environmental impact, as the "scope" of the project determines whether federal environmental assessments under the Canadian Environmental Assessment Act ("CEAA") and its associated regulations will apply (in addition to provincial assessments) and, if so, the intensity of the required federal assessment.

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