Bill C-69, which includes the proposed Impact Assessment Act (the “Act”) is currently in the second reading of the Senate. In February, 2018, the Government of Canada released the Consultation Paper on Information Requirements and Time Management Regulations and sought comments from the public on the proposed components of the Regulations. Based on the comments and submissions received, the Federal Government has now published a Discussion Paper on Information Requirements and Time Management Regulatory Proposal (the “Paper”). The Paper summarizes the comments received from the public and the proposed requirements of the Regulations, focusing on “early planning”, “enhancing predictability” and “avoiding delays”. With the release of the Paper, the Federal Government now seeks another round of comments from the public by May 31, 2019. This post will summarize the Discussion Paper and specifically the newly proposed timelines, time management tools, and information requirements under the Regulations.
As an overview, the proposed Regulations will include:
- Criteria under which legislated time limits could be suspended;
- Information required from the proponent in the Project Description, which would be provided at the outset of early planning and updated during the planning phase;
- Requirements to support accessibility of information provided by proponents;
- Products the Impact Assessment Agency of Canada (the"Agency") would deliver at the end of early planning;
- A requirement for the Agency to make participant funding programs available for all designated projects; and
- The time limit for the Minister to respond to a request that a regional or strategic assessment be conducted.
Proposed New Timelines
- Early Planning Phase (max. 180 days): Once the proponent provides the Agency with an initial Project Description, a new 180-day planning phase begins to determine whether or not an impact assessment of a designated project is required.
- Impact Statement Phase (max. 3 years): After the end of the early planning phase, the proponent can take as much time as it needs (up to 3 years) to prepare the Impact Statement in accordance with Tailored Impact Statement Guidelines provided by the Agency at the end of the Early Planning Phase. If more than 3 years elapses, the proponent may make a request to the Agency for additional time.
- Impact Assessment Phase (max. 300 or 600 days): This phase can either be led by the Agency (in which case the timeline would be 300 days) or referred to a review panel (in which case the timeline would be 600 days). During this phase, the Agency or review panel would seek views on the project, including public feedback, and consider the range of factors prescribed under s. 22 of the proposed Act. The Agency or review panel will prepare an impact assessment report at the end of this phase which will be submitted to the Minister and posted on the online public registry.
- Decision-Making (30 or 90 days): The Minister decides during this phase whether the project would be in the public interest, or refers the matter to the Governor in Council. The Minister has 30 days and the Governor in Council has 90 days to reach a decision. A decision statement will be issued with each decision and posted to the online public registry.
- Follow-up, Compliance & Enforcement: The newly proposed impact assessment system would also provide strengthened follow-up and enforcement. The required information and time periods would be set out in the decision statement for the project.
Proposed Time Management Tools:
1. Suspension of time limits: suspensions may only be used for proponent-driven reasons in accordance with criteria set out in the Regulations. The Paper sets out the three proposed criteria for the suspension of timelines:
- If the proponent requests that the timeline be suspended, for any activity, until such time that the activity is completed;
- For the proponent to provide information related to a design change, or change in construction or operation plans that could change the project’s potential impacts; and
- Until payment is received in the event of non-payment by the proponent of recoverable costs.
Authority to suspend timelines applies to the early planning phase (180 day limit), the minister’s referral of assessment to the review panel (45 day limit), and the impact assessment phase (300 day limit for an Agency-led assessment and 600 day limit for a Panel-led assessment). There is no authority to suspend timelines for the decision-making phase.
2. Extension of time limits: extensions are available to address matters within the government mandate (e.g. to ensure continued alignment with other jurisdictions) and may only be used by the Minister once every 90 days. Further extensions would require Governor in Council approval. Authorities to extend timelines apply to the planning phase (180 day limit), the impact assessment phase (300 day limit for an Agency-led assessment and 600 day limit for a Panel-led assessment), and the decision-making phase (30 day limit for a decision by the Minister and 90 day limit for a decision by the Governor in Council).
3. Timeline transparency: Notice of any suspension or extension of time limits would have to be posted on the online public registry, along with reasons for the suspension or extension.
Proposed Information Requirements
The proposed Regulations will set out information requirements for the Project Description which will evolve in response to issues raised during the early planning and impact assessment phases. The Regulations will also outline the products the Agency is required to deliver to proponents at the end of the planning phase which include:
- Tailored Impact Statement Guidelines;
- Cooperation Plan;
- Indigenous Engagement and Partnership Plan;
- Public Participation Plan; and
- Permitting Plan.
The proposed Regulations will include requirements that information provided by proponents be provided in a machine-readable, accessible format. Proponents will also be required to provide information to the Agency on the individuals who prepared the Impact Statement report in order to provide the public with information about the Report’s lead authors.
How can you submit your feedback to the government?
The government is accepting comments on the proposed Regulations. You can provide comments to www.impactassessmentregulations.ca by May 31, 2019.
*With thanks to Sophia Ma, articling student for her assistance in drafting this blog.
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.