Overhaul of Canada’s Environmental Assessment Regime – The Impact Assessment Act

Authors: Rangi Jeerakathil, Anna Beatch, Erin Moch

The federal government recently introduced 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. Bill C-69 proposes, among other things, to repeal the Canadian Environmental Assessment Act, 2012 (“CEAA, 2012”) and to enact the Impact Assessment Act (the “IAA”).

Bill C-69 received second reading on March 19, 2018 and has been referred to the Standing Committee on Environment and Sustainable Development.

Bill C-69 is preceded by the report prepared by the expert panel that was established to conduct a review of Canada’s environmental assessment processes and develop recommendations on how to improve these processes.

We discussed this report in a previous blog post. The end of the extended comment period – June 1, 2018 – is approaching quickly.

Enacting the Impact Assessment Act

The IAA would result in a major overhaul of the existing federal environmental assessment process. The IAA would shift the assessment process from an “environmental assessment” to an “impact assessment” and proposes a new impact assessment process.

The following paragraphs outline some of the proposed amendments.

1. Impact Assessment Agency

Under the IAA, the Canadian Environmental Assessment Agency (the “Former Agency”) would be continued as the Impact Assessment Agency of Canada (“Agency”). The Agency would be the sole federal agency that would lead impact assessments for major projects.

2. Creating an Early Planning and Engagement Phase

Under the IAA, an early planning and engagement phase would be introduced. During this phase, the proponent of a designated project would prepare and deliver to the Agency an initial description of the designated project, including the information that will be prescribed in the Information Requirements and Time Management Regulations. The Former Agency is currently seeking public comments with respect to these regulations.

3. Broadening the Assessment Criteria

The IAA would also broaden the assessment criteria and consider certain legislative effects (including changes to the environmental or to health, social or economic conditions) in relation to various federal heads of power, including fish habitat, species at risk, migratory birds, Indigenous peoples, federal lands and interprovincial and international effects. The IAA moves away from the question of whether “significant adverse environmental effects” will occur in favour of a “public interest” test, which creates uncertainty with respect to the criteria against which projects will be assessed.

4. Enhancing Consultation with Indigenous Peoples

The IAA would also:

  1. allow the Minister to enter into agreements with Indigenous jurisdictions on impact assessment-related matters, and to substitute the impact assessment process with an Indigenous jurisdiction’s process for assessing the effects of designated projects;
  2. authorize the Agency to delegate the carrying out of any part of an impact assessment to Indigenous jurisdictions; and
  3. require each impact assessment to take into account the impact that a designated project may have on any Indigenous group and any adverse impact that the project may have on the rights of Indigenous peoples recognized and affirmed by Section 35 of the Constitution Act, 1982, as well as traditional Indigenous knowledge provided to the Minister.

5. The Regulatory Process

Bill C-69 also proposes to shorten the regulatory process.

For example, for Agency-led impact assessments, the timeline would be reduced from 365 days to a maximum of 300 days to submit a report following the impact assessment; for panel reviews, the timeline would be reduced from 720 days to a maximum of 600 days.

However, numerous opportunities exist for the federal government to expand and lengthen the review process.

For example, the Minister may establish a longer time limit for both Agency-led and panel-led reports to allow for cooperation with other jurisdictions. Further, the proponent of a designated project has three years to provide the Agency with the information and studies that are set out in relevant notice; however, if this time limit is extended at the request of the proponent, the Minister may require additional information or studies to be provided by the proponent. As a result of these uncertainties it is difficult to predict with any certainty how long an impact assessment will ultimately take given the number of opportunities for extension and the number of parties that may be involved.

Transitional Provisions

The IAA contains several transition provisions. For example, if the proponent of a designated project has provided a description of the designated project to the Former Agency, and the Former Agency has not decided (before the IA Act comes into force) whether an environmental assessment is required, the screening is terminated (but the project description is deemed to be an initial project description under the IAA).

Furthermore, with respect to an environmental assessment of a designated project commenced under CEAA, 2012 (before the IAA comes into force):

  1. if the Agency considers that the proponent has (before the IAA comes into force) collected the information or undertaken the studies required by the Former Agency to conduct the environmental assessment, the environmental assessment is continued under CEAA, 2012 as if that act had not been repealed; and
  2. if the Agency considers that the proponent has not (before the IAA comes into force) collected the information or undertaken the studies required by the Former Agency to conduct the environmental assessment, the environmental assessment is continued as an impact assessment under the IAA.

It should be noted that the transitional provisions do not appear to explicitly address the following circumstances:

  1. if the proponent of a designated project has provided a project description to the Former Agency, and the Former Agency has decided that an environmental assessment is not required; and
  2. if the proponent of a project has not provided a project description to the Former Agency because the project is not a designated project under CEAA, 2012 (and therefore the environmental assessment provisions of CEAA, 2012 were not triggered).

Further, there is uncertainty as to what will constitute a designated project under the IAA as the Regulations Designating Physical Activities, also known as Project List, have not yet been made.

The Former Agency is currently conducting public consultation regarding the approach to be used to guide the review of the Project List. The comment period was recently extended – comments may be submitted until June 1, 2018.

Following this first round of public consultation, a new Project List will be proposed. This Project List will be subject to a second round of public consultation. The formal regulatory process will then begin, likely in 2019, which includes the federal government posting a draft regulation for public comment. Based on preliminary guidance, the Project List is likely to be expanded.

MLT Aikins has significant experience advising clients on environmental matters, including environmental assessments. Our lawyers in this practice area would be pleased to discuss the IAA, including the transitional provisions, and how it may affect your projects.

Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.