Alan Calder Member Name
Project Manager and Senior EA Specialist
The Canadian federal government’s overhaul of key environmental laws is in effect on August 28, 2019. Bill C-69, which implements the new Impact Assessment Act (IAA), replaces the Canadian Environmental Assessment Act, 2012, (CEAA 2012) overhauling the federal environmental assessment system. The new legislation includes a revised list of activities that will trigger an impact assessment and other details about how the impact assessment process will work.
The IAA means significant changes for proponents of major projects in Canada, in that they will need to take more steps to manage their project’s environmental, socio-economic, cultural and health impacts. A similar trend, giving more consideration to human impacts, is found in another recently changed piece of Canadian legislation: The Fisheries Act, through Bill C-68.
While there are many changes in the IAA, here are six notable changes that project proponents need to know about:
1. A single agency will be responsible for the administration of impact assessments
What has been the Canadian Environmental Assessment Agency now becomes the Impact Assessment Agency of Canada. It will administer all impact assessments, including assessments of projects regulated by the Canadian Nuclear Safety Commission and the Canadian Energy Regulator (formerly the National Energy Board).
These “lifecycle regulators” will work closely under the new IAA to integrate their knowledge and expertise into the review process.
2. Focus on sustainability and factoring human impacts into planning
An Environmental Impact Assessment (EIA) is a planning tool designed to help inform decisions on projects and project impacts that are in the public interest. EIAs will continue to consider the potential effects of project activities and determine whether proposed measures are adequate to avoid or reduce the significance of impacts.
A renewed focus on sustainability means that the scope of EIAs will generally be broader. Under the IAA, the review process moves away from a focus on Environmental Assessments (EAs) that mostly considered potential impacts on the biological and physical environments, with some consideration of social, economic, heritage and health effects. The focus under the IAA is now broader, moving towards Impact Assessments (IAs) that consider the natural environment, but put a greater emphasis on social, health, and economic factors.
For example, consider a proposed dam. Under the previous Act, much of regulators’ attention might have focused on impacts to the natural environment. The new IAA requires looking at broader impacts, such as considering that if the dam produces construction waste, and the plan is to dispose of that waste in a local landfill, there might be social and economic costs to the community. The additional construction waste might take up space in the permitted area of the landfill and shorten its lifespan. This has implications for future costs to the community if it needs to find alternative waste disposal facilities. Under the IAA, the proponents of the dam project may need to address this problem.
The new legislation underlines the importance of considering the indirect impacts, not just the direct impacts of the project. In the example of a dam being built, the direct impacts might include the creation of construction jobs. But there might be indirect impacts as well – including social costs such as increased housing costs in the community if many of those jobs are filled by people from elsewhere.
The new Act expects project proponents to consider the negative and positive aspects of their project on human populations. If jobs are to be created during the construction phase of the project, for example, the planning process must address the negative impacts on the community when those jobs are finished. Projects will be evaluated partly on their ability to produce long-term sustainable positive impacts, such as skills training and long-term employment. Projects will also be evaluated partly on their ability to provide employment for people in the community and provide them with skills that they can apply sustainably.
The IA must now also include a projection of the project’s greenhouse gas emissions, so that the Government of Canada can assess implications for international climate change commitments.
3. More requirements for an early 180-day planning phase
The new Act emphasizes the need to engage with Indigenous groups and stakeholders who will be potentially affected by a project, and to do this from the start so their interests can be factored into the planning, as well as ongoing through the life of the project. The goal is better project design.
Under the new IAA, the nature and extent of assessment will be tailored for each project during a new 180-day Planning Phase. This phase will be led largely by the new agency, and involve federal authorities, other jurisdictions, Indigenous groups, the public, other stakeholders and the proponent. The intent of the Planning Phase is to consult with interested parties to help inform and finalize both the Project Description and Tailored Impact Statement Guidelines.
One big benefit to the Planning Phase is that it may give project proponents greater certainty about what will be assessed, and what information must be included in an IA.
It may also reduce the risk to proponents that the scope of an assessment will change part-way through, including at an advanced stage of the review process. The Agency will now have the final say on the scope of the assessment, rather than the Minister.
At the end of the Planning Phase, the Government will produce several important planning documents that will help set the course for the review process and follow-up activities. These include an Impact Assessment Cooperation Plan, a Public Participation Plan, an Indigenous Engagement, a Partnership Plan, and a Permitting Plan.
The new Act seeks to enhance the ability of affected populations – especially, small Indigenous communities – to meaningfully participate in the planning process.
Some don’t have the resources available to review project proposals, consult with proponents, determine what impacts there could be, and then respond with their ideas on how to improve the positive aspects and mitigate the negative aspects. This is particularly the case if they must deal with several proposed projects that are affecting their community at once. Project proponents therefore need to make investments to make sure that the communities affected have the training and other resources to respond effectively and meaningfully.
4. Greater focus on impacts to Indigenous populations
The new Act puts a heavy emphasis on avoiding negative impacts and seeking positive impacts regarding the country’s Indigenous population. This includes using what used to be called “Traditional Knowledge,” now called “Indigenous Knowledge.” It is based on experience and knowledge passed down through generations, but also other types of community lore as well as empirical knowledge gained through standard research methods.
One issue still to be resolved is what happens when the impact assessment prepared by Indigenous groups and their subject-matter experts reach a different conclusion than the analysis prepared by the proponents’ environmental consultants.
5. Possible regional and strategic assessments
The IAA contemplates a role for regional and strategic assessments, undertaken by the federal government, possibly in partnership with other jurisdictions, designed to help understand cumulative impacts on a regional scale. Once a regional assessment is completed, conditions may be set through regulations that can exempt certain designated projects from a federal review, if they are met. Even if exemption is not an option for a given project, the availability of a regional assessment will help to assess potential cumulative effects, which could be an onerous undertaking for any one proponent.
Two new regulations will also come into force with the IAA. The Regulations Designating Physical Activities (“the Project List”) will identify projects that will require federal review under IAA, and the Information Requirements and Time Management Regulation will identify information to be submitted and criteria for setting, managing and suspending time limits.
While the Project List maintains many of the existing categories in CEAA 2012, the list also expands the categories of projects subject to an impact assessment. While new thresholds have been introduced, other thresholds have increased, meaning fewer categories for certain types of designated projects. For example, the trigger for an impact assessment of a new pipeline is now 75 km or more of new right-of-way, as opposed to 40 km under the CEAA 2012 regime.
Time limits under the IAA may be suspended under one or more of the following situations:
(1) Upon the proponent’s request
(2) To undertake additional studies or collect additional information related to changes in the design, construction or operation plans for a designated project
(3) For the collection of certain fees and costs if they are not paid by the proponent within the required time limits.
The Information Requirements and Time Management Regulation also establishes what information is required to be provided by proponents in the initial description of a designated project. The required information includes a list of all Indigenous groups that may be affected by the project, a summary of engagement undertaken with Indigenous peoples, and the key issues raised during the engagement.
We will continue to monitor the progress of these regulations, as well as federal policy and guidance documents that support IAA implementation, to assess how they will be reflected in the new federal review process.
While change in legislation and regulations is uncomfortable for business and those who may be affected, particularly in the immediate to short term, the changes that we see approaching are not insurmountable. With the expected guidance and training that is forthcoming, we are ready to assist project proponents as they navigate the impact assessment and permitting processes.
The Impact Assessment Act applies to projects being carried out specifically in Canada; however, because Canada is often considered to be among the leading countries in developing legislation on the social and environmental effects of projects, it is reasonable to expect that elements of Canada’s new legislative environment will be adopted by other countries.
* Bill C-68 and Bill C-69 introduce significant policy changes to environmental legislation. The Government of Canada announced that these new pieces of legislation, and associated regulations will come into force on August 28, 2019. Clear rules for transitioning to the new system are outlined in the legislation. Much of the framework for this new federal environmental legislation links to best practices and requirements within each of the provinces and can be beneficial to project planning efforts. As with all legislative and policy developments that affect our clients, Golder continues to monitor changes closely.
|Read more about the Canadian legislative overhaul|