On February 8, 2018, Bill C-69, An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigation Protection Act and to make consequential amendments to other Acts, was introduced for first reading. Part 1 of Bill C-69 will repeal the Canadian Environmental Assessment Act, 2012 ("CEAA, 2012") and enact the Impact Assessment Act (the "Act").
A Single Agency Responsible for Impact Assessments
The Impact Assessment Agency of Canada (the "Agency") will replace the Canadian Environmental Assessment Agency and will be the single agency responsible for the management of impact assessments for designated projects under the Act.
Notably, the word “environmental” is no longer part of the title of the new Agency. This omission is intentional – the proposed legislation has broadened the scope of assessments from “environmental assessments” to “impact assessments” in an effort to understand how proposed projects may affect not only the environment but also health, social, and economic issues.
Whereas previously, the Canadian Environmental Assessment Agency, the National Energy Board and the Canadian Nuclear Safety Commission all had responsibility for conducting environmental assessments under different processes, the Agency becomes the single federal body leading all impact assessments and coordinating Crown consultations for all federally designated projects.
The new Canadian Energy Regulator (replacing the National Energy Board), and the Canadian Nuclear Safety Commission retain their responsibility for lifecycle regulation of a project but the impact assessment of new projects will no longer be assessed by those agencies and will instead fall to the Agency to manage.
The question of which projects will be assessed under the Act has not yet been determined. The federal government is currently consulting with Canadians, seeking input with respect to the current project list under the Regulations Designating Physical Activities, which we will report on in a further blog post.
Under the Act, there has been a change in the factors to be taken into account in making the ultimate decision as to whether a project is approved. For projects assessed by the Agency or by a substituted process, the Minister determines if the adverse effects of the project that are within federal jurisdiction are “in the public interest”, taking into account a list of prescribed public interest factors. For projects assessed by a review panel, the Governor in Council will be responsible for determining whether the adverse effects within federal jurisdiction are in the public interest.
The Act therefore eliminates the previous decision-making language of whether a project is “likely to cause significant adverse environmental effects.” Instead, the Minister or the Governor in Council must determine whether adverse effects (but not necessarily significant ones) are in the public interest.
The prescribed public interest factors the Minister and Governor in Council must take into account are broad and include, for instance, the extent to which a project contributes to sustainability, and the extent to which the effects of the project hinder or contribute to the Government of Canada’s ability to meet its climate change commitments.
Also included as a public interest factor is the extent to which each of the adverse effects is adverse. It therefore appears that the significance of an effect is reserved as a separate public interest factor unto itself. Importantly, however, all adverse effects of a project may be considered as to whether they are in the public interest, and not only significant adverse effects, as was previously the case.
A New Early Planning Phase
A key feature of the Act is the creation of a new, mandatory early planning phase. The goal of this phase is to proactively address potential project problems and to promote early engagement of the public and Indigenous peoples in project design and planning. This stage begins when a proponent gives an initial description of the proposed project to the Agency. The Agency will post this initial description on its public website and must invite the public to comment and offer to consult with any potentially affected Indigenous groups.
The Agency will then provide the proponent with a summary of issues, which may include issues raised by the public or Indigenous groups. The proponent must prepare a notice that sets out how the proponent intends to address these issues. Once the Agency is satisfied that the proponent's notice contains all of the information or details required, the Agency will post a copy of the notice on its public website.
The planning phase must be completed within 180 days from when the Agency posts the initial description on its public website. The exact information required in the initial description and in the proponent's response to the Agency's summary of issues will be prescribed by regulation, drafts of which have not yet been released.
New Strategic and Regional Impact Assessments
The Act also establishes three levels of impact assessments: project-level impact assessments, regional impact assessments, and strategic impact assessments. Project-level impact assessments will be conducted by the Agency or a review panel. The new regional and strategic impact assessments will be optional. Regional impact assessments will be used to assess baseline conditions and the cumulative impacts of projects and activities within defined regions. Strategic impact assessments will be used to achieve goals in matters of national interest. These strategic and regional assessments are intended to evaluate “big-picture” issues such as climate change, biodiversity and species at risk, and the cumulative effects of development.
The Agency will be required to establish an expert committee to advise the Agency on issues related to impact assessments and an advisory committee to advise the Agency with respect to the interests and concerns of Indigenous peoples in relation to impact assessments. The membership of both of these committees must include Indigenous persons.
New Mandatory Factors for Assessment
The Act will replace "environmental assessments" with "impact assessments", in an effort to understand how proposed projects may affect not only the environment but also health, social, and economic issues. While these issues are generally already being assessed by proponents on a practical level, the Act makes mandatory the assessment of certain additional factors, including the following:
- the impact the project may have on Indigenous groups or on the rights of the Indigenous peoples of Canada, traditional knowledge of Indigenous peoples, and considerations related to Indigenous cultures;
- the need for and any alternatives to the project;
- the extent to which the project contributes to sustainability and hinders or contributes to Canada's ability to meet its environmental obligations and its commitments in respect of climate change;
- the results of strategic or regional assessments; and
- the intersection of sex and gender with other identity factors.
Transparency, Public Participation, and Advancing Reconciliation
The federal government has also made increased transparency and certainty that decisions will be based on robust science, evidence, and Indigenous traditional knowledge a priority under the Act. One of the ways the Act accomplishes this is by mandating opportunities for public participation. For example, the Agency must post the reports and notices generated through the impact assessment process on a public website and must invite the public to comment at various stages. The Agency is also required to establish participant funding programs to facilitate public participation in the impact assessment process.
The Act also creates opportunities for Indigenous peoples to participate in impact assessments. For example, the Agency must offer to consult with potentially affected Indigenous groups at the planning phase. Additionally, impact assessments must consider Indigenous traditional knowledge, if provided, alongside other evidence.
In response to concerns regarding the timing of assessments, the Act will shorten the legislated timelines of the impact assessment process. For example, the maximum time for assessments led by the Agency will be reduced from 365 days to 300 days. The maximum time for assessments led by review panels will be reduced from 720 days to 600 days.
In addition, whereas under CEAA, 2012, there were certain periods where the time would be excluded from calculation in the overall time limit (for instance, where a proponent was responding to information requests by a review panel), these excluded periods do not exist under the Act. Instead, the Minister and the Governor in Council will retain the authority to extend or suspend the timelines in certain situations.
For projects assessed by the agency, the Minister will have 30 days to make the public interest decision or refer the decision to the Governor in Council. The Governor in Council will have 90 days to make the public interest decision for projects that assessed by review panels.
Strengthened Requirements for Substitution
The Act aims to ensure that the highest standards of impact assessment are consistently met by increasing the number of conditions that must be satisfied for the Minister to approve substitution. For example, the Minister must be satisfied that federal authorities that are in possession of relevant specialist or expert information or knowledge will be given an opportunity to participate in the assessment and that the substitute process will include consultations with potentially affected Indigenous groups. The Minster has the authority to request additional information from the substitute jurisdiction or the proponent if required to make a decision under the Act.
The federal government has announced that it will invest up to $1.01 billion over five years to support the new impact assessment regime and Canadian Energy Regulator as well as bolster scientific capacity in federal departments and agencies. Until the new legislation comes into effect, the existing rules under CEAA, 2012, continue to apply.
Lawson Lundell's Environmental, Indigenous and Natural Resources Blog focuses on environmental, indigenous and natural resources law, as well as related litigation. Included are summaries of significant cases from Canadian appellate courts, changes in the legal framework governing resource development including energy and climate change policy, and key decisions from the more influential regulatory bodies in Canada.
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