In this post, I offer my preliminary assessment of what I consider to be some of the key elements of the proposed new federal Impact Assessment Act (the first part of Bill C-69, available at: http://www.parl.ca/DocumentViewer/en/42-1/bill/C-69/first-reading). This post is an effort to understand and put in lay terms how the proposed Act would work, and how it would differ from CEAA 2012. C-69 is a complicated Bill, and I will continue to update this overview as I work through the details. I welcome feedback on important aspects I may have missed, or sections I may have misinterpreted. In the meantime, I hope this analysis will be helpful in your own reflections on the proposed new Act.
I have grouped my assessment of the proposed Act according to the main elements of the process and other key features. There are many cross-cutting and other issues that deserve separate attention, such as public participation, transparency issues, the role of Indigenous peoples, learning, accountability, multi-jurisdictional cooperation, climate change, assessment of projects on federal lands and outside Canada, among others. Addressing these all would have made this post even longer than it already is, and would have significantly delayed its release. I hope to follow up on some of these issues with separate posts, so stay tuned.
Triggers, Application of the Assessment Process
The triggering process for projects has not changed significantly from CEAA 2012. The starting point is a designated projects list. The Minister can, on request or on her own, require a project to be assessed that is not on the list. One limitation is that that there is no power to require an assessment of a non-designated project that has substantially begun, or that has received federal approvals. This is a new provision. There is a discussion document available on the expected revisions to the designated project list available on the federal government website (https://www.impactassessmentregulations.ca/) on the proposed new Act.
There are no triggers for strategic or regional assessments (other than an opportunity to petition for an assessment under section 97), nor any criteria for when a regional or strategic assessment may be warranted. The initiation of any regional or strategic assessment is left to the discretion of the Minister. Strategic assessments appear limited to the implication of policies, plans and programs for project EA, rather than broader questions about the environmental or sustainability implications of policies, plans or programs. The future of the Cabinet Directive on Strategic Environmental Assessment is not addressed in the Bill. Given that assessments under the Directive are not covered under the proposed Impact Assessment Act, the expectation is that it will continue as the main vehicle for strategic assessments of federal policies, plans and programs. There is no link between project assessments and regional or strategic assessments (sometimes referred to as a strategic assessment off-ramp).
The Assessment Planning Process
The planning phase is a new phase introduced in Bill C-69. It starts with a project description prepared by the proponent in accordance with regulations. The idea is clearly to initiate the process early, but it is unclear how this goal will be achieved. In fact, the timelines may discourage a proponent from initiating the process until late in its own planning process, and there are no legislative provisions to motivate an earlier start to the process. Ultimately, the timing of the initiation is left to the discretion of the proponent.
Under section 11, the public will have an opportunity to participate in the planning process, which will be led by the Agency. It would appear that the purposes of the planning process are to decide whether to the carry out an assessment, whether and how to cooperate and coordinate with other jurisdictions, what the scope of the assessment will be, and perhaps whether to subject the project to a standard assessment or a panel review. The decision whether to commence with an assessment is to be made within 180 days, a time limit that can be extended by up to 90 days.
Determination of the scope of the assessment (other than the scope of the project itself) seems to be intended to start during the planning process, though it is not clear in the Bill whether scoping is concluded at this stage. It starts with the Agency proposing a list of issues, based on input from the public and any jurisdiction the Agency has consulted with. The proponent then responds with an indication of the information it intends to provide in response to the issues that have been identified.
A key change to scoping includes the addition of a number of factors to be assessed in section 22 when compared to the elements in section 19 of CEAA 2012. Among the notable additions to the section 22 are the need to consider impacts on Indigenous communities, impacts on Indigenous rights, the need and purpose of the projects, alternative means and alternatives to the project, the project’s contribution to sustainability, the results of regional and strategic assessments, impacts on the intersection of sex and gender with other identify factors, and the impact of the project on environmental obligations including climate change commitments. The scope of these factors is to be determined by the Minister for panel reviews, and the Agency for standard assessments. The public is to be involved in scoping.
The Agency decides whether it has enough information to decide whether to proceed with an assessment. This is one place where the existence and results of a regional or strategic assessment can be considered, suggesting that strategic and regional assessments may lead to fewer project assessments. The decision whether to refer the project to a panel review is a separate decision made by the Minister. The Minister can also decide at this stage that the project will be rejected without an EA. Finally, the Agency can decide that the project can proceed without an EA. The resulting process options at the end of the planning process are essentially the following:
- No process (either with approval or rejection of the project)
- Standard EA process (potentially with delegation)
- Substitution to an Indigenous process or a provincial process
- A Review Panel
The Standard (Agency) Assessment Process
The standard assessment process has not changed fundamentally from CEAA 2012. The Agency still runs the process, and the basic elements seem similar. Of course, as discussed above, the scope has been broadened significantly under section 22. Timelines are shorter than under CEAA 2012, though with additional time for the planning phase, and a three year window for the provision of information by the proponent before the start of the assessment process. The general impression left in Bill C-69 is that the Agency will be more front and centre in the assessment, and the proponent will play more of a supportive role of providing information rather than carrying out a preliminary assessment, as has been the case to date in the form of proponent’s Environmental Impact Statements. While Bill C-69 does not use the term impact statement, it appears from the government IA Handbook that the proponent is expected to prepare an impact statement under section 19. The IA Handbook is available in PDF format through the following link: https://www.canada.ca/content/dam/themes/environment/conservation/environmental-reviews/ia-handbook-e.pdf.
The provisions of Bill C-69, more generally, beyond the preparation of the impact statement and a general responsibility for federal authorities with expertise to help, do not delineate the allocation of responsibility for the gathering of the information needed, particularly in light of the much broader scope of the assessment, nor is Bill C-69 clear about the impact of information gathering (beyond the preparation of the impact statement) on the time limits for the assessment phase. Much of the scope of a particular assessment may now be outside the expertise of proponents. It remains to be seen who else will have responsiblility for ensuring adequate information is before the Agency on issues such as alternatives, impacts on Indigenous communities and rights, and social, economic and health impacts of proposed projects, and how this information will be gathered within the time frames permitted. Much of this information may be gathered in parallel with the proponent’s preparation of the impact statement. However, some of this work may arise out of the review of the information during the course of the assessment.
Panel Review Process
The proposed new Act continues the recent trend toward strict timelines to decide whether to proceed with a panel review, and to carry out such a review. Decisions to refer a project to a Review Panel are to be made within 45 days of the commencement of the assessment. The decision is to be made based on a combination of potential for adverse effects on areas of federal jurisdiction, public concern, and opportunities for collaboration with other jurisdictions.
The timeline for completing the panel review process has been shortened from 2 years to 600 days, and time taken up by the proponent in responding to information requests after the impact statement is filed will no longer automatically be subtracted from the panel’s time (assuming the panel continues to have the opportunity to seek additional information from the proponent), making the total time for panel reviews potentially significantly shorter than under CEAA 2012.
As indicated above, there is no legislative clarity on what happens if a panel, in carrying out its work after the impact statement is completed, determines that additional information is required from the proponent, a federal agency, or some other source (though there is discretion to suspend time through regulations). There are opportunities to extend the timelines, but any significant extension granted by the Minister has to be made at the start of the process. The Cabinet has broader powers to extend the timelines during the course of a panel review, but this does not appear to be a practical option for a panel faced with delays in getting the information it needs.
Section 56 allows the Minister to seek additional information from the proponent at the conclusion of the panel review process to inform its conclusion on whether the project is in the public interest. It is unclear why the proponent would be asked to feed into the public interest determination at this late stage. Furthermore, any information gathered at this stage in the process would not be available to the independent Review Panel, and would not be subject to the same level of public scrutiny.
The general approach to harmonization with other jurisdictions with assessment responsibilities under the proposed Act is one of cooperation, but with flexibility to harmonize through delegation or substitution at the discretion of the Minister. The key difference between cooperative assessments and delegation or substitution is that through delegation and substitution, the assessment or parts of it are done by another jurisdiction, and the results are then used for federal decision making. Delegation and substitution are available for Standard Assessments, not for Panel Reviews. Under Section 33(3), substitution can be approved after the completion of the process to be substituted. Substitution decisions appear to be made on a project by project basis.
Compared to CEAA 2012, there is a clear difference in tone and preference in favour of cooperation in Bill C-69, but the main substantive change is the elimination of equivalency. Otherwise, the shift from delegation to cooperation is dependent largely on the exercise of Ministerial discretion. Most notably, there are no clear provisions to support/encourage cooperation over other forms of harmonization. The elimination of equivalency means the federal government now clearly retains decision making responsibility, but project decisions can in some cases be made based on information gathering and assessment carried out by another jurisdiction. It is important to note that the shift to broader sustainability considerations adds much more value judgement to the assessment process, raising questions about the appropriateness of federal decision-makers relying on provincial assessment and analysis, rather than just on provincial information gathering.
Of course, the Agency’s discretion at the planning stage of the process can also be used as a tool to avoid any federal assessment in situations where other jurisdictions are carrying out their own assessment. In such a case, there would not be a federal assessment decision at all, similar to the effect of the equivalency provisions under CEAA 2012.
The two fundamental questions with a substitution and delegation approach to harmonization are whether it ensures a fair and thorough information base and, more importantly, objective assessment and analysis to adequately inform federal decisions, and whether federal decision makers will have adequate appreciation for the underlying value judgements of provincial assessments, and for the complexities sustainability-based decision-making without having the federal government actively involved in the process of analyzing and assessing the information. The discretion to delegate appears unlimited, whereas the discretion to substitute is subject to certain limitations under section 33(1).
For Panel Reviews, the approach to harmonization is focused on joint assessments. This includes the continuation of the long tradition of carrying out joint assessment with the provinces, a process that has generally worked well in the past. It also includes a new variation on the longstanding effort to identify an appropriate role for so called “life cycle regulators” in the assessment process. The focus here is on the new Canadian Energy Regulator (the CER, to replace the NEB), as well as the Canada Nuclear Safety Commission, and the NS and NL Offshore Petroleum Boards.
Formal joint assessments are not to be carried out with the CNSC or the CER, though both are expected to support the impact assessment process and will be directly involved in it. Most importantly, at least one of the panel members are to be appointed from these regulators when the project is one that they regulate. There is no limit to the number of panel members from the regulators that can serve on a panel. Furthermore, under section 48, the panel is authorized to exercise powers of the CER, suggesting that the panel will have a dual function, perhaps similar to joint CEAA/NEB panels of the past. However, the reference is to section 25(1) of “that Act”, a section that does not appear to exist in the proposed CER Act.
Interestingly, all projects on the designated project list that are regulated by one of these ‘life cycle regulators’ have to be assessed by way of a Review Panel (assuming the projects are assessed). It appears under section 39(2) that no joint panels with other jurisdictions are possible where these regulators are involved. What is unclear is what effect these provisions will have on which projects regulated by these regulators will be listed on the designated project list. It would be fair to assume that smaller projects that don’t warrant a panel review may be taken off the list or the Agency will exercise its discretion not to require a federal assessment.
Bill C-69 includes changes that would essentially treat the NS and NL offshore petroleum boards in a manner similar to the CER and the CNSC. The main difference is that in cases of panel reviews involving the offshore boards, the panels are to consist of 5 panel members, at least two of which are to be appointed from a roster from the offshore boards. The effect appears similar, to carry out a panel review that has a significance presence from the regulator, and the potential for a majority or even all panel members to be appointed from the offshore board roster. The ultimate question is what effect these alterations to the panel review process involving ‘life cycle regulators” will have on the quality and focus of the process and its ability to provide an appropriate basis for the “public interest” determination.
Strategic and Regional Assessments
Bill C-69 allows the Minister to initiate regional and strategic assessments. Neither is defined. Regional assessment can either be entirely on federal lands, or outside. If partly or completely outside federal lands, a cooperative approach is clearly preferred under Section 93, but a federal regional assessment remains an option. The assessments are to be carried out by the Agency or through a committee, with terms of reference to be established or approved by the Minister. Similarly, strategic assessments are to be conducted by the Agency or through a committee. The focus of strategic assessments is on federal policies, plans and programs, and classes of designated projects.
The public is to have an opportunity to participate in the assessment, and to have access to relevant information. No further details are provided in Bill C-69 on the process or the outcome of a regional assessment. The report is to be filed with the Minister, but there is no provision for decision making, and no guidance on how the results of a regional or strategic assessment are to be used in future project decisions.
Project Assessment Decision-Making
The ultimate decision to be made is whether “a proposed project is in the public interest”. This is different from CEAA 2012, which broke the decision-making process into two steps. Step 1 was a determination whether the project was likely to cause significant adverse environmental effects. If so, step 2 was a determination whether the likely adverse environmental effects were justified in the circumstances. In short, the new decision-making process skips step one and jumps straight to whether the project is in the public interest in light of the factors set out in section 63. The Minister either makes the decision or makes a recommendation to Cabinet, with Cabinet making the ultimate decision on whether a project is in the public interest in case of panel reviews.
‘Public interest’ decisions would need to articulate which areas of federal jurisdiction are impacted by the project, and separate these impacts from other, broader impacts and benefits that could be taken into account in deciding whether to accept the impact on federal jurisdiction. However, this appears designed not to replace the significance finding under CEAA 2012, but rather to clarify the basis for federal jurisdiction to make a project decision. In short, it seems not intended, as the previous significance test was, as a threshold finding leading to a presumption against approving a project that can only be overcome with a finding of overriding other benefits.
Section 63 provides a list of factors to be considered in determining whether a project is in the public interest. Many but not all factors are also included in section 22 as factors to be considered in the assessment. Included in section 63 are the following:
- The extent to which the project contributes to sustainability
- The extent to which effects on areas of federal responsibility are adverse
- The implementation of mitigation measures (defined to include compensation)
- Impacts on Indigenous Communities and Indigenous Rights
- Impacts on Canada’s environmental obligations and climate commitments
The decision maker, whether the Minister or Cabinet, has to give reasons for the decisions that demonstrate that these factors were considered in the decision. There is no clarity on the level of detail to be provided in the reasons, or the underlying analysis for determining, for example, whether a project makes a net contribution to sustainability, or whether it helps with or hinders Canada’s climate commitments. There is no opportunity provided in Bill C-69 to appeal or otherwise review the decision or its basis.
The final project decision must be published in the form of a decision statement. The statement can be amended, but not the underlying decision. There is no apparent link to monitoring and follow-up, such as the ability to adjust terms and conditions if mitigation measures turn out to be ineffective, or predictions made during the course of the assessment turn out to be wrong. The decision (assuming approval) has to include a time period within which the proponent has to commence with the project, after which the approval expires.
The purpose of this post was to offer an initial assessment of some of the key elements of the proposed new process. There are many other aspects of the Bill worth careful review. On my initial review, I have not seen much new on issues such as the registry, follow-up, the treatment of cumulative effects, public participation (with the exception of taking out the ‘directly affected’ test public engagement), learning opportunities, and the use of science in EA. These are all issues that received considerable attention during the past two years of discussion about the reform of the federal assessment process, but the proposed Bill seems to retain much of CEAA 2012. Other areas, such as the engagement of Indigenous peoples, have changed, but I have not had the opportunity to consider the effect of the proposed changes carefully, so have refrained from assessing those aspects of the Bill, at least for now.
Professor, Schulich School of Law