Environmental, Indigenous and Natural Resources Blog

On February 8, 2018, Bill C-69 was introduced for first reading, Part 1 of which is the draft Impact Assessment Act ( the “IAA”) to repeal and replace the Canadian Environmental Assessment Act, 2012 (“CEAA 2012”).

This post explores the triggers for project Impact Assessment (“IA”), as well as the transition provisions for existing projects, and provisions to substitute assessment processes run by other jurisdictions. The IAA names the Impact Assessment Agency of Canada (the “Agency”) as the authority responsible for conducting IAs and coordinating Crown consultations. A general overview of the IAA and the Agency continued thereunder was the topic of our Feb 13, 2018 post. One of the differences between the IAA and CEAA 2012 is that under the IAA the scope of a project assessment will include not only environmental aspects within federal jurisdiction, but also health, social and economic issues, hence the change in name from environmental assessment to impact assessment.

Federally Designated Projects:

Similar to CEAA 2012, the IAA requires project IAs for designated projects only. Designated projects are those that are designated by regulation (the “Project List”) or by an order of the Minister. The Minister may not designate a project by order if the carrying out of the physical activity has substantially begun or if any federal permits or approvals have already been issued for the project.

The Government of Canada has initiated public consultations on the approach to determining which projects should be designated on the Project List (as well as on project information requirements and timeline management). The consultation papers inviting public comment by April 15, 2018 are found online here. Comments on the approach to the Project List may be made by filling in the online form or by uploading submissions directly as provided on the website. After the initial round of consultation, the government will develop and circulate a draft Project List for a second round of consultation, currently anticipated in the Fall of 2018. The formal process to bring the revised regulation into force is expected to begin in 2019.

Although the revised list of designated projects is not yet known, what seems clear from the discussion papers is that the current Regulations Designating Physical Activities under CEAA 2012 provides a starting point, and the federal government seeks to have more projects trigger the planning phase of the IAA process than triggered the screening phase under CEAA 2012. The stated intention is to develop a criteria-based approach to designating projects, to focus on projects with the most potential for adverse environmental effects in areas of federal jurisdiction (e.g. fish and fish habitat, aquatic species, and migratory birds as defined in federal environmental legislation). The draft Schedule enumerating additional components of the environment (and changes to health, social and economic matters) within federal jurisdiction has not yet been populated, however the consultation paper provides further guidance. 

The consultation paper suggests that the following types of projects could be designated:

• additional types of mines (e.g. for impacts to fish and fish habitat);
• large-scale wind power facilities (e.g. for impacts on migratory birds and, in the case of offshore facilities, fish and fish habitat); and
• insitu oil sands facilities (e.g. for impacts on GHGs), but with an exception for jurisdictions having a hard cap on GHG emissions.

The consultation paper suggests that under the criteria-based approach, some thresholds for project types already on the list could either go up or down depending on the potential for impact in areas of federal jurisdiction, or exceptions could be added. Examples given are that fewer tidal power generating facilities may trigger IA as impacts have tended to be lower, but more hydro-electric projects could trigger for impacts on fish and fish habitat. Marine terminals are already on the list, but there could potentially be some exceptions added, such as where the terminal is in conformance with a current land-use plan.  It is also possible that some types of projects already on the list may be removed. 

Projects on federal lands (as defined) are in a special category and require federal environmental assessment (as opposed to IA) even if they are not designated projects. (This is similar to CEAA 2012).

Impact Assessment Types:

In general, designated projects on the Project List are required to submit an initial description to commence the IA planning phase. During the planning phase the Agency will identify issues, collect further submissions, and determine whether an IA by the Agency is required for that project. Other potential outcomes of the planning phase are that the Minister refers the project to a review panel within 45 days after the notice of commencement of the project IA has been posted. Alternatively, the Minister may approve a substitution process for the project, which we discuss further below.

For those projects with activities regulated under the Canadian Energy Regulator Act or Nuclear Safety and Control Act, the IA must be conducted by way of a panel review. Panels will include two members of the Agency and one Canadian Energy Regulator commissioner or Canadian Nuclear Safety Commission member, respectively. There are similar panel review arrangements for projects with activities regulated under the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act or the Canada–Newfoundland and Labrador Atlantic Accord Implementation Act.

Project Transition Provisions:

The IAA has transition provisions that cover a variety of scenarios at the date when the IAA comes into force. In some cases, assessments already underway under previous legislation are continued under the IAA. The proposed transitions are as follows:  

1. Any Screenings started under CEAA 1992 that are still in progress are terminated.
2. Any Comprehensive Study started under CEAA 1992 and for which notice of the Comprehensive Study Report has not yet been published is terminated.
3. Any Comprehensive Study started under CEAA 1992 and for which notice of the Comprehensive Study Report has been published continues as an environmental assessment under CEAA 2012.
4. Any Comprehensive Study started under CEAA 1992 but continued under CEAA 2012 by order of the Minister continues as an environmental assessment under CEAA 2012.
5. Any CEAA 2012 screening still in progress is terminated and the project description is deemed to be an initial description under s. 10(1) of the IAA.
6. Any ongoing CEAA 2012 environmental assessment being conducted by the Agency and for which the Agency considers that the proponent has not provided the required information and studies under s. 23(2) is continued under the IAA. (This provision excludes projects for which a Comprehensive Study was started under CEAA 1992 and continued by the Minister under CEAA 2012.)
7. Any ongoing CEAA 2012 environmental assessment being conducted by the Agency and for which the Agency considers that the proponent has provided the required information or studies is continued under CEAA 2012. (This provision excludes projects for which a Comprehensive Study was started under CEAA 1992 and continued by the Minister under CEAA 2012.)
8. If the 60 day period under CEAA 2012 for the Minister to refer an environmental assessment to a review panel has passed, the Minister may not refer the assessment to a review panel under the IAA. However, within 60 days of the IAA coming into force, the project proponent may request the termination of its CEAA 2012 assessment in order to commence an assessment under the IAA. (This provision excludes projects for which a Comprehensive Study was started under CEAA 1992 and continued by the Minister under CEAA 2012.)
9. Any ongoing environmental assessment being conducted by the Canadian Nuclear Safety Commission or the former National Energy Board is continued under CEAA 2012.
10. Any environmental assessment referred to a review panel under CEAA 2012 and for which the Agency considers that the proponent has not provided the required information or studies in the pre-panel phase is continued as an impact assessment by review panel under the IAA.
11. Any environmental assessment referred to a review panel under CEAA 2012 and for which the Agency considers that the proponent has provided the required information or studies in the pre-panel phase is continued under CEAA 2012. (However, the proponent has up to 60 days to request that the Minister terminate the EA so that the proponent can instead provide an initial description under the IAA.)
12. A decision statement made under CEAA 2012 is deemed to be a decision statement under the IAA except for the purposes of s. 70 of the IAA.
13. An environmental assessment approved for substitution by the Minister under CEAA 2012 is continued as a substitution under CEAA 2012.

Projects that Did Not Trigger a CEAA 2012 screening but are on the revised IAA Project List:

The proposed transition provisions do not address projects that did not trigger a Screening under CEAA 2012, but which perhaps do trigger the IA planning phase under the IAA. 

CEAA 2012 dealt with this type of gap by saying that if construction of the project had already started, then such projects were not subject to the new regime. The draft IAA has a similar concept in the provision which prohibits the Minister from designating projects for which the carrying out of the physical activity has substantially begun, or for which a federal approval has already been issued under another statute. A similar provision could be introduced for projects that did not trigger a CEAA 2012 screening but do appear on the revised Project List.

In many cases a project that did not require a CEAA 2012 screening will nonetheless require a provincial environmental assessment. The IAA has a substitution provision that could be used in that scenario, so that the provincial environmental assessment process already underway could be deemed sufficient for substitution under the IAA if it meets the criteria.  Substitution is the mechanism under which an assessment undertaken by another jurisdiction (such as a province) results in a report that is delivered not only to the provincial authority but also to the federal Minister for decision under CEAA 2012 or the IAA (as applicable). Although to our knowledge British Columbia is the only province in which substitution was frequently approved under CEAA 2012, the IAA carries the concept forward and sets out criteria for approval of substituted processes. Upon request, the Minister may approve a substitution only if satisfied that the following criteria are met:

1. the process to be substituted will include a consideration of the factors set out in subsection 22(1) for federal IA;
2. federal authorities that are in possession of relevant specialist or expert information or knowledge will be given an opportunity to participate in the assessment;
3. the jurisdiction that is following the process to be substituted has the ability to enter into an arrangement for cooperation with any of several listed jurisdictions in the conduct of the assessment;
4. the process to be substituted will include consultations with any Indigenous group that may be affected by the carrying out of the designated project;
5. the public will be given an opportunity to participate in the assessment and to provide comments on a draft report;
6. the public will have access to records in relation to the assessment to enable its meaningful participation;
7. at the end of the assessment, a report will be submitted to the Minister;
8. the report will be made available to the public; and
9. any other conditions that the Minister establishes are or will be met.

We note that substitution is not available for projects referred to review panel or for projects regulated under any of the following Acts:

• Canada Oil and Gas Operations Act,
• Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act,
• Canada-Newfoundland Labrador Atlantic Accord Implementation Act, and
• Canada Transportation Act.

If you would like to discuss the consultation process for the Project List or how the IAA and revised Project List may affect your project, please contact Jennifer Nyland at jnyland@lawsonlundell.com or any of the other partners in our Environmental & Regulatory Group.

Special thanks to articling student Braeden Wiens for his assistance in compiling this blog post.