This is the most recent blog in a series of posts which discuss the proposed recommendations set out by the Expert Panel in its report entitled Building Common Ground – A New Vision for Impact Assessment in Canada, The Final Report of the Expert Panel for the Review of the Environmental Assessment Processes (the "Report"), released April 5, 2017. This entry will focus on the proposed tiered approach to federal Impact Assessment (IA) processes, namely, the use of strategic and regional IAs to inform project IAs as outlined in Section 3 of the Report.
A Tiered Approach to Impact Assessment
As discussed in our previous posts, the proposed focus of the new IA process is sustainability. The Report notes that many elements of sustainability cannot be properly assessed at the project level. Sustainability requires the consideration of federal government policies, plans, and initiatives ("Federal Initiatives") and regional issues. Given this, the Report proposes a tiered approach to IA whereby strategic and regional IAs will be developed to provide guidance and context against which project IAs can proceed. Below we provide a high level review of strategic and regional IAs including their purposes, when they would apply, how they would apply, and their anticipated benefits.
Strategic IAs provide direction on how specific Federal Initiatives should be considered as part of a regional or project IA. The purpose of a strategic IA is to provide clear direction and guidance on how the goals of the specific plan, program, or policy can be implemented through regional and project IAs. Some of the topics for existing initiatives identified in the Report include federal government policies on wetlands, species at risk, climate change, fisheries, migratory birds, ocean protection, and sustainable development. Depending on the nature of the Federal Initiative, a strategic IA may set criteria and thresholds against which regional and project IAs should be measured.
The Report recommends that a strategic IA be required for any Federal Initiative that:
- is likely to affect many projects subject to federal IA; and
- lacks clear guidance on how it should be applied in a project or regional IA.
These triggers are designed to exclude Federal Initiatives that already have clear detailed guidance as to how they are to apply to environmental assessment processes.
The Report recommends that strategic IAs be developed in consultation with interested jurisdictions, parties with relevant expertise or experience, and Indigenous Groups. The ultimate goal of a strategic IA should be to provide guidance and direction on:
- all pillars of sustainability that are relevant to implementing the Federal Initiative for project and/or regional IAs;
- the information or studies within each applicable pillar that are needed to address the Federal Initiative in project and/or regional IAs; and
- the objectives, criteria, thresholds, methods, or protocols that must be addressed in project and/or regional IAs.
The anticipated benefits of strategic IAs include enhanced realization of Federal Initiatives, greater clarity for proponents regarding information requirements and the objectives or standards that proposed projects must meet, and a common standard against which all participants can measure a project vis-à-vis a specific Federal Initiative.
Regional IAs focus on the current state of a particular geographical area. The purpose of a regional IA is to provide the regional context necessary to accurately assess the potential impacts of a project through the project IA process. It is anticipated that regional IAs will gather baseline information regarding the current state of the region's environment (including Aboriginal traditional uses), establish valued components and associated criteria, identify regional stressors and trends, provide local context and background information for matters of interest to the community, identify areas of importance, and assess cumulative impacts.
Regional IAs will not be required in every instance. The Report proposes that a regional IA is necessary only where the project in question occurs:
- on federal lands or marine areas with the potential for cumulative impacts; or
- outside of federal lands and marine areas where there is a potential for, or existing, cumulative impacts on federal interests.
The first scenario applies where there is broad federal authority over the area in question. The Report recommends that the regional IA extend beyond the specified area if there is co-operation with other jurisdictions. Regional IAs commenced under this trigger are expected to focus on the five pillars of sustainability and assess cumulative impacts in the region in order to develop a robust, forward-looking alternative development scenario approach.
The second scenario applies where there are several federal interests in the area, but no exclusive federal authority. Given the lack of exclusive federal authority, regional IAs required for these scenarios will be limited in the following two ways: (1) they will not include any consideration of alternative development scenarios; and (2) they will focus exclusively on cumulative impacts to valued components related to matters of federal interest. The scope of regional IAs under this trigger may be expanded if there is co-operation from other jurisdictions.
It is expected that regional IAs will be developed gradually through a transition process whereby certain regions will be prioritized over others, based on need. Regional IAs are expected to be developed through the same three stage process as project IAs, as described in our earlier post.
The integration of regional IAs into the federal IA process is expected to give rise to several benefits. First and foremost, regional IAs are expected to result in more efficient, effective, and accurate project IAs. Almost all parties that participated in the review of the federal environmental assessment processes agreed that some form of sustainability at a regional level was necessary to accurately assess the impacts of a project. Other anticipated benefits include better informed decisions on future projects, improved trust and relationships with Indigenous Groups, and a clear strategy for achieving regional sustainability through the assessment of alternative development scenarios.
The Expert Panel's recommended tiered approach proposes a new way to consider Federal Initiatives and regional issues as part of the project approval process. While the existing federal environmental assessment regime includes mechanisms for the consideration of Federal Initiatives and the undertaking of regional studies, many participants in the review process indicated that these mechanisms are rarely used and ineffective in achieving the desired result.
The recommendations made by the Expert Panel are significant in that, in certain instances, they would render strategic and regional IAs mandatory. While the Report provides some guidance on the process for completing strategic and regional IAs, the work proposed is not a simple task and would require cooperation among several parties. As such, there remains considerable uncertainty as to when strategic and regional IAs would be available to inform project IAs. It remains to be seen which of the Expert Panel's recommendations will be accepted by the federal government. Members of the public have until May 5, 2017 to provide the federal government their feedback on the Report.
With special thanks to Rochelle Collette and Daphne Rodzinyak for their assistance in finalizing this post.
On Friday, April 21, Lawson Lundell will be hosting a seminar on the Report and potential implications. For more information about the seminar, or to register, please email firstname.lastname@example.org with your name and company name by Wednesday, April 19th. We will have video conferencing available for those participating outside of Vancouver. If you would like to join via video conference, please let us know in your RSVP response and we will send you the video and dial-in information. Please note: spaces are limited.
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.