With the proposed Impact Assessment Act (part of Bill C-69), the federal government seeks to increase public acceptance and certainty for the assessment of major projects. The stakes are high because project assessment is at the intersection of many federal policy objectives that shape our natural resource economy and global reputation.
Although Bill C-69 retains many features of the 2012 Canadian Environmental Assessment Act, the IAA is ambitious in scope and will reshape the project assessment regime.
- The IAA focuses on impact assessment versus environmental assessment and includes an expanded list of assessment factors:
- contribution to sustainability, cumulative effects, regional assessments, gender-based impact analysis, alternatives to the project, and alternative means to carry out the project. Assessing economic factors and positive effects is essential to sustainable development. But overemphasis on risk without a proper weighing of the positive effects will constrain innovation and growth.
- The Canadian Environmental Assessment Agency will become the Impact Assessment Agency of Canada. It will have an expanded role as the authority responsible for impact assessments. Panels will continue to review larger projects.
- Ultimate decisions will remain at the political level and will follow a defined public interest test. The Minister or cabinet must weigh the public interest, policy direction, and risk trade-offs, and then stand accountable.
- The IAA emphasizes the reconciliation of the interests and traditional knowledge of Indigenous peoples and allows opportunity for input at all stages of decision-making.
- The IAA retains the “project list” approach, rather than returning to a federal approval “trigger” to decide on reviewable projects.
- The Minister may designate a project for review in the public interest, but not if the project has substantially started or has received federal approvals that allow it to proceed.
The Minister may initiate regional assessments. Assessing cumulative effects in a region rather than placing that burden on a single project developer is important, but it is unclear how the process will work and how overlaps with provincial interests will be reconciled. Regional assessments will take time and resources.
- The Agency will use the planning phase to assess the public interest, determine the need for assessment, and set the scope of the assessment, which shifts more work to the front end of the process so the review is more efficient. Developers must factor this early stage process into any planning timeline.
- The IAA allows for inter-jurisdictional co-operation and for a provincial process to substitute for the federal assessment, but decisions remain at the federal level. This may help avoid regulatory duplication but will require meticulous planning to withstand legal challenges.
- The IAA increases the opportunity for public participation, with funding, which has the potential to overwhelm a review unless the Agency or Panel manage the process well.
- The transition rules require further clarity for proponents planning or undergoing assessments in the current process.
- The IAA emphasizes time limits, transparency, notices and detailed reasons for decisions for each phase.
The Standing Committee on Environment and Sustainable Development completed its review at the end of May. The committee considered over 500 amendments and passed over 130 of them. The amended Bill C-69 will be posted publicly in June and then sent to the House of Commons for third reading.
Completed public consultations on the Regulations Designating Physical Activities (Project List) and the Information Requirements and Time Management Regulations will inform the drafting of the regulatory proposals over the summer. Consultation on the draft proposals is set for the fall, with a plan to finalize the regulations in early 2019.
These regulations are important tools that will define the practical application of the IAA.
Implications for resource development
The ambitious blueprint laid out by Bill C-69 will require substantial federal resources and time to achieve its goals of increasing public confidence in the process and creating more certainty for project developers. In a world where capital for resource development projects is mobile, Canada must have an efficient project review process to attract capital to develop our natural resources and civil infrastructure.
DAVID BURSEY is partner and co-head of Aboriginal Law at Bennett Jones. SHARON G.K. SINGH and BRANDON MEWHORT are associates; STEPHANIE RIDGE is a student-at-law.