On June 21, 2019 Bill C-69 received Royal Assent. However the federal Impact Assessment Act (“IAA”), which will replace the Canadian Environmental Assessment Act, 2012, is not yet in force. It will be brought into force on a date to be set by order of the Governor in Council. Similarly, a replacement of British Columbia’s Environmental Assessment Act (“BC EAA”) has been passed and will come into force by regulation of the Lieutenant Governor in Council (anticipated in late 2019).
The British Columbia Environmental Assessment Office (“EAO”) and its federal counterpart the Canadian Environmental Assessment Agency (the “Agency”) (soon to become the Impact Assessment Agency when the IAA is in force) have set out procedures for cooperation in a draft agreement.
On July 8, 2019 the EAO released for public comment a draft of that agreement: the Impact Assessment Cooperation Agreement (the “Draft Agreement”). The Draft Agreement outlines how the pending federal IAA and the pending BC EAA replacement will interact on environmental assessments for projects that are subject to both of these regulatory regimes.
Overview of the Draft Agreement
Based on the Draft Agreement, it is clear that the EAO and the Agency are contemplating a high degree of coordination wherever possible. This is not surprising, given their history of cooperation and the many similarities between the new assessment regimes.
The Draft Agreement allows for various forms of cooperation, including Substitution (as allowed by the IAA, wherein the EAO conducts an assessment that also meets the federal requirements, and then each order of government makes its own decision under its own legislation, regarding whether to approve the project), Coordinated Assessments where Substitution is not occurring, and Joint Review Panels. Some of the new material in the Draft Agreement is to spell out how the new early engagement processes under both sets of legislation will work, and how the new Indigenous engagement provisions will be coordinated.
The EAO and the Agency will notify one another upon becoming aware of a project that may require assessment pursuant to both Acts. They will coordinate cooperation and collaboration with Indigenous peoples, and will notify each other as early as possible of engagement plans. During the Early Engagement phase, the EAO and the Agency will establish joint early engagement processes to facilitate common requirements and the joint issuance of documents whenever appropriate. Some examples include consolidated requirements for Initial Project Descriptions, coordinated public comment periods, coordinated engagement with Indigenous peoples, municipal governments and federal and provincial authorities, and the preparation of a single document setting out the comments received.
The EAO and the Agency will attempt to coordinate the timing of their decisions as to whether an assessment is required, and will notify one another of their decisions.
Where Substitution is being considered, the provincial Minister will endeavour to make a substitution request early on, to allow the IAA public comment period on the substitution request to coincide with the comment period on the Initial Project Description if possible. If the substitution request is granted then the provincial rules for process and timing will apply (until the assessment report is provided to the federal Minister).
If an assessment is not substituted, the EAO and the Agency will cooperate during the planning phase (after the assessment required decision) and the impact assessment, to enable coordination of their processes. Some examples include harmonized timelines, an impact assessment cooperation plan that provides for a joint technical working group, coordinated engagement with Indigenous peoples, coordinated development of information requirements, coordinated public engagement on assessment reports, and joint preparation of a single assessment report if appropriate.
The Draft Agreement also addresses the possibility of Joint Review Panels where appropriate.
The EAO and the Agency will jointly review potential conditions for the project, to minimize duplication and, to the extent possible, align reporting and notification requirements as well as terminology.
Where possible, the EAO and the Agency will coordinate the announcement of their respective decisions on whether to allow a project to proceed.
They will also attempt to coordinate post-decision activities, and will notify one another if they receive notification of proposed changes to an approved project.
The EAO has opened a 30 day public comment period on the Draft Agreement, from July 8 to August 7, 2019. Comments on the Draft Agreement can be submitted online, by mail, or by fax. Review the Draft Agreement and submit a comment online by clicking here.
If you would like to discuss the Draft Agreement or how it may affect your project, please contact Jennifer Nyland at email@example.com or any of the other partners in our Environmental & Regulatory Group.
With special thanks to Summer Student Ali Adams for her assistance.
Lawson Lundell's Project Law Blog focuses on updating proponents on issues emerging in the law and policy that applies to the development of major projects in Canada. The focus of the blog is on matters relating to environmental assessment and compliance, regulatory matters and Indigenous consultation.