The following is a selection of proposed amendments to Bill C-69 to strengthen the new Impact Assessment Act. The first column of the table refers to the existing provisions in Bill C-69, the middle column proposes wording for the amendment, and the third column offers a brief explanation for the proposed amendment. The three columns do not always match up perfectly, but I hope it is clear which comments relate to which amendments.
| Current Section | Proposed Amendment | Rational |
| S. 2, Definitions
follow-up program means a program for verifying the accuracy of the impact assessment of a designated project and determining the effectiveness of any mitigation measures.
mitigation measures means measures to eliminate, reduce, control or offset the adverse effects of a project or designated project, and includes restitution for any damage caused by those effects through replacement, restoration, compensation or any other means
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Follow-up means a program for verifying compliance with conditions of approval, for verifying the accuracy of predictions made, and for verifying the effectiveness of mitigation measures proposed during the impact assessment, in order to make appropriate adjustments to the terms and conditions to ensure approved projects make the expected contribution to sustainability, and in order to ensure appropriate learning for future assessments.
mitigation measures means measures to eliminate, reduce, control or offset the adverse effects of a project or designated project, and does not include restitution for damage caused by those effects through replacement, restoration, compensation or other means.
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Need a better definition of follow-up that more clearly identifies the three key roles of follow-up
Need a better definition of mitigation, that gives priority to eliminating effects over ‘compensating’, and does not recognize financial compensation as mitigation.
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| S. 9 (2)
Before making the order, the Minister must take into account any adverse impact that a physical activity may have on the rights of the Indigenous peoples of Canada recognized and affirmed by section 35 of the Constitution Act, 1982 as well as any relevant assessment referred to 5 in section 92, 93 or 95.
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S. 9 (2)
Before making the order, the Minister must take into account any adverse impact that a physical activity may have on the rights of the Indigenous peoples of Canada recognized and affirmed by section 35 of the Constitution Act, 1982 as well as any relevant assessment referred to 5 in section 92, 93 or 95, in accordance with principles, criteria and guidance prescribed by regulations under section 112.1.
9(2.1) Any category of project considered for assessment under this section shall be considered by the Minister for addition to the designated project list based on the criteria referred to in subsection (2).
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Add that the Minister shall make the decision in accordance with prescribed criteria
Add that the Minister should consider whether to add the ‘category of project’ proposed under section 9 to the designated project list. |
| S. 12
For the purpose of preparing for a possible impact assessment of a designated project, the Agency must offer to consult with any jurisdiction that has powers, duties or functions in relation to an assessment of the environmental effects of the designated project and any Indigenous group that may be affected by the carrying out of the designated project.
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S. 12 (1)
For the purpose of preparing for a possible impact assessment of a designated project, the Agency must offer to consult with any jurisdiction that has powers, duties or functions in relation to an assessment of the environmental effects of the designated project and any Indigenous group that may be affected by the carrying out of the designated project.
(2) For purposes of consultations and engagement under section (1) and for purposes of engaging with other interests, the Agency shall establish an Early Planning Advisory Committee, and invite representatives of interested jurisdictions, interested indigenous communities and organizations, and other interests prescribed under section 112 to participate on the Committee.
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Subsection (2) adds the obligation to set up an Early Planning Advisory Committee, which is critical for ensuring an effective early planning phase. |
| S. 15 (1)
The proponent must provide the Agency with a notice that sets out, in accordance with the regulations, how it intends to address the issues referred to in section 14 and a detailed description of the designated project that includes the information prescribed by regulations 15 made under paragraph 112(a). |
S. 15 (1.1) The Agency or the Review Panel may, at any time during the assessment, require the proponent or a federal authority to provide any additional information it considers relevant to the assessment of the designated project.
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Be clear that the Panel or the Agency (depending on who carries out the assessment) can ask for additional information at any time during the course of the assessment. |
| S. 16(2)
In making its decision, the Agency must take into account the following factors … |
Whether there should be discretion not to require an assessment and whether there should be other criteria, depends on how long the designated project list is, and what the planning process will actually look like. If the project list will include smaller projects, and all interested parties are actively involved in the planning phase, then it makes sense to also allow for a decision not to proceed based on a conclusion that the project will clearly meet all the criteria in section 63, or something along those lines. It is important to learn from the final track decision process for comprehensive studies, which essentially showed that you cannot make good decisions without gathering information, so be careful about creating expectations to make decisions at the end of the planning phase unless it is clear that the information needed will be available. | |
| S. 22 (1) The impact assessment of a designated project must take into account the following factors:
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Add: in accordance with principles, criteria and guidance prescribed by regulations under section 112.1. | Need to do a better job tracking cumulative effects, in particular with respect to future projects. This can be accomplished in part through higher level of assessment or the development of future development scenarios, but in many cases, this will not be available during the project assessment. At a minimum, should require regulations to offer clear direction on how to do better cumulative effects assessments, particularly when there is no current regional assessment available to draw on. |
| S. 22 (2)
The scope of the factors to be taken into account under paragraphs (1)(a) to (l) and (s) and (t) is determined by
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Add: “the Minister, after consulting with the Review Panel and after the public has had an opportunity to comment on the scope of factors” | Review Panels need to have some input into scope determinations, these decisions cannot be made the Minister before the Review Panels are appointed and without input from the Panel. |
| S. 27
The Agency must ensure that the public is provided with an opportunity to participate in the impact assessment of a designated project.
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… public is provided with an opportunity to participate in the impact assessment of a designated project in accordance with principles, criteria, and guidance prescribed by regulations under section 112.1. | Could consider something more specific in the Statute, such as specific reference to alternative dispute resolution mechanisms, and culturally appropriate ways to participate. At a minimum, require regulations under section 112.1. |
| S. 27 (2)
After taking into account any comments received from the public, the Agency must, subject to subsection (5), finalize the report with respect to the impact assessment of the designated project and submit it to the Minister no later than 300 days after the day on which the notice referred to in subsection 19(4) is posted on the Inter- net site. |
S. XXX The report prepared by the agency shall include conclusions and recommendations on each of the factors in Section 63, and on whether the proposed project is in the public interest. | Need to add that the Agency report (logically and to ensure some level of accountability of the final decision which the report is intended to inform) has to reach conclusions on each of the section 63 factors and about the ‘public interest’ to properly inform the project decision. This is not to constrain the political decision, but to hold the political decision maker accountable for deviating from the conclusions and recommendations of those in charge of the assessment. The point is to improve the transparency and accountability of the decision, so that it is clear how we go from information gathering, to assessment to decision making. |
| S. xxx The Minister shall, in accordance with regulations made for that purpose under section 112.1, advise the public of the extent to which the recommendations set out in any report submitted by the Agency or a review panel have been adopted and the reasons for not having adopted any of those recommendations.
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This will ensure improved accountability for not following the recommendations in the assessment report. A similar provision was included in CEAA 1992 under section 38. | |
| S. xxx Review Panels shall be allocated funds to retain experts and analysts as needed, and shall have the power to hire such experts and analysts without Ministerial approval. | Panels should have direct control over budgets for hiring experts and for pursuing alternative dispute resolution options in appropriate circumstances. Otherwise, obtaining such expertise just gets bogged down and may not be available in a timely fashion. This is particularly troubling with the shorter timlines. In the past, panels have had to wait for Ministerial or Agency approval, and have had to follow the hiring process of the federal government, resulting in undue delays in getting the needed expertise. | |
| S. 156(1) Agency’s duties: In carrying out its objectives, the Agency must… | S. 156(1) … (d) serve as the secretariat for all review panels established under sections 36 to 59 of this Act. | The Agency should have clear legislative responsibility to serve as Panel secretariat as they have the “in-house” expertise and credibility to do so, with the possible exception of JRPs with indigenous governments. |
| S. 36 (1)
Within 45 days after the day on which the notice of the commencement of the impact assessment of a designated project is posted on the Internet site, the Minister may, if he or she is of the opinion that it is in the public interest, refer the impact assessment to a review panel. |
36(1) As soon as possible during or after the planning phase, and no later than 45 days after the conclusion of the planning phase, the Minister may… | The Act should at least encourage Review Panels to be set up during the planning phase (where possible), so that panel members can get up to speed on issues and effectively participate in decisions on scope, information gathering and process. Otherwise, panels are reduced to facilitators of public hearings and recorders of views expressed. |
| S. 37 (6)
The Minister may suspend the time limit within which the review panel must submit the report until any activity that is prescribed by regulations made under paragraph 112(c) is completed. If the Minister suspends the time limit, he or she must ensure that a notice that sets out his or her reasons for doing so is posted on the Internet site.
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37(6) The time limit within which the review panel must submit the report shall be suspended until any activity that is prescribed by regulations made under paragraph 112(c) is completed. | The suspension of time in case of significant delays in providing information needed by the review panel should be automatic. The regulations can establish the details, but the suspension should not be at the discretion of the Minister. Leaving this with the Minister will likely create delays and risks being unworkable. |
| S. 39( 2)
However, the Minister is not authorized to enter into an agreement or arrangement referred to in subsection (1) if the designated project includes physical activities that are regulated under any of the following Acts: … |
Delete 39(2) | Joint Review Panels should be encouraged, regardless of whether the project is regulated by one of the “energy (or life cycle) regulators” or not. The focus should be on good assessments over perceived efficiency gains from forcing a merging of assessments and regulatory processes. |
| S. 43
The Minister must refer the impact assessment of a designated project to a review panel if the project includes physical activities that are regulated under any of the following Acts: … |
Delete | Energy regulators under the Acts listed in section 43 are responsible for a range of projects, not all of which are large enough to warrant a review panel, but nevertheless warrant a federal assessment. |
| S. 44(3)
At least one of the persons appointed under para- graph (1) must be appointed from a roster established under paragraph 50(b), on the recommendation of the President of the Canadian Nuclear Safety Commission … |
44(3) No more than one of the persons appointed under paragraph (1) shall be appointed from a roster …. Any such person so appointed shall not be appointed as the chairperson. | Energy regulators should not have special rights to be appointed to (or to appoint members of) review panels. In fact, for the credibility, integrity and independence of the assessment, their expertise should be provided in ways other than as members of the review panel. At the same time, their expertise is, of course, critical to the assessment process. To minimize the reputational and integrity risks to review panels, I suggest that the role of the energy regulators be limited to a maximum of one panel member. |
| S. 47(3)
At least one of the persons appointed under para- graph (1) must be appointed from a roster established under paragraph 50(c), on the recommendation of the Lead Commissioner of the Canadian Energy Regulator … |
47(3) No more than one of the persons appointed under paragraph (1) shall be appointed from a roster …. Any such person so appointed shall not be appointed as the chairperson. | See previous comment |
| S. 48
For the purpose of conducting an impact assessment of a designated project that includes activities regulated under the Canadian Energy Regulator Act, including preparing a report with respect to that impact assessment, the review panel may exercise the powers conferred on the Commission that is referred to in subsection 25(1) of that Act |
Delete, likewise for ss. 46, 46(1.1) (section 2 of Bill C-69 )(pg 88) and 48(1.1) (pg 89). | Efforts to combine the regulatory process with the assessment process are misguided. Instead, the focus should be on ensuring the processes, while sequential, are properly integrated, and that each is properly informed by the other. |
| S. 51 (1)
A review panel must, in accordance with its terms of reference, (a) conduct an impact assessment of the designated project; (b) ensure that the information that it uses when conducting the impact assessment is made available to the public; (c) hold hearings in a manner that offers the public an opportunity to participate in the impact assessment; (d) prepare a report with respect to the impact assessment that (i) sets out the effects that, in the opinion of the re- view panel, are likely to be caused by the carrying out of the designated project, (ii) indicates which of the effects referred to in sub- paragraph (i) are adverse effects within federal jurisdiction and which are adverse direct or incidental effects, and specifies the extent to which those effects are adverse, (iii) sets out a summary of any comments received from the public, and (iv) sets out the review panel’s rationale, conclusions and recommendations, including conclusions and recommendations with respect to any mitigation measures and follow-up program; (e) submit the report with respect to the impact assessment to the Minister; and (f) on the Minister’s request, clarify any of the conclusions and recommendations set out in its report with 35 respect to the impact assessment.
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Add the following responsibilities to section 51(1):
(g) ensure that the scope of the assessment allows the review panel to reach an overall conclusion on whether the project is in the public interest based on criteria set out in section 63 (h) ensure that the review panel has access to information needed to reach an overall conclusion on whether the project is in the public interest based on criteria set out in section 63; and (i) include in its final report a conclusion on each of the factors set out in section 63 in accordance with any further guidance prescribed under section 112.1. |
An essential element of any assessment is the decision-making process. Critical in this regard is the interaction between information gathering, assessment and decision making. As currently drafted, the process falls apart in the transitions from information gathering to assessment and from assessment to decision making. The review panel has a critical role to play in addressing these challenges. The amendments proposed here would more effectively use the expertise of the review panel, ensure it adequately informs the project decision maker, and (along with other amendments) improve the transparency and accountability of the project decision. |
| S. 56
The Minister may, before making a referral under section 61, require the proponent of the designated project to collect any information or undertake any studies that are necessary for the Governor in Council to make a determination under section 62. |
Delete | This section risks undermining the integrity of the assessment process. The proponent should not be given an opportunity to circumvent the assessment process and influence the project decision outside the assessment process. Alternatively, any request made at this stage, and the information provided, must be made public, and must be combined with an opportunity for the public to also submit information and comment on the information provided by the proponent. |
| S. 65 (1)
The Minister must issue a decision statement to the proponent of a designated project that (a) informs the proponent of the determination made under paragraph 60(1)(a) or section 62 in relation to that project and the reasons for the determination; (b) includes any conditions that are established under section 64 in relation to the designated project and that must be complied with by the proponent; (c) sets out the period established under subsection 70(1); and (d) includes a description of the designated project. |
S. 65 (1)
The Minister must issue a decision statement that (a) informs the proponent and the public of the determinations made under paragraph 60(1)(a), section 62, and conclusions reached with respect to the criteria in section 63, in relation to that project and the reasons for the determination and conclusions; (a.1) provides detailed written reasons where the Minister disagrees with the conclusions and recommendations in the report filed by the Agency or the Review Panel; (b) includes any conditions that are established under section 64 in relation to the designated project and that must be complied with by the proponent; (c) sets out the period established under subsection 70(1); and (d) includes a description of the designated project. |
The decision statement should be issued to the public, not just to the proponent.
The decision statement should include a conclusion on each of the factors in S. 63. The decision statement should include a “public interest” determination with written reasons. The decision statement should include detailed written reasons for not following any recommendation by the Agency or Review Panel with respect to factors in S. 63 or the “public interest” determination.
These amendments are critical to the transparency, accountability and integrity of the project decision. |
| S. xxx(1) For any approved project, the decision statement shall clearly assign responsibility to an appropriate federal authority to amend terms and conditions of approval as appropriate in case predictions about the impacts and benefits of the approved project either underestimated negative impacts, or overestimated benefits.
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There should be a clear responsibility to amend terms of approval in the event predictions about impacts or mitigation turn out to be wrong, and the Bill should include legislated criteria for when and how the power to amend the terms and conditions for approval is to be exercised. | |
| 106 (1) Subject to subsection (2), in respect of every designated project, a project file must be established by
the Agency on the day on which the notice referred to in subsection 10(1) in respect of the designated project is posted on the Internet site and maintained until the day on which any follow-up program in respect of that designated project is completed.
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(3) A project file must contain all records produced, collected or received in relation to the Agency’s preparations for a possible impact assessment of a designated project and in relation to the impact assessment of that designated project, including (a) all records posted on the Internet site; (b) any report relating to the impact assessment; (c) any comments that are received from the public in relation to the Agency’s preparations for a possible impact assessment and in relation to the impact assessment; (d) any records relating to the design or implementation of any follow-up program; and (e) any records relating to the implementation of any mitigation measures. |
In section 106(1), change “until the day on which any follow-up program in respect of that designated project is completed” to “permanently”.
In section 106(3), add “all data collected and” before “all records produced”… |
While there is an obligation to publish results of follow-up in some form, there is not enough clarity in the Bill that all data collected on the actual impacts of an approved project will be publicly accessible permanently… A key way we can improve the assessment process and the assessment of individual projects is through learning from actions taken. |
| S. xxx In case of projects regulated by multiple jurisdictions, the Agency shall make all reasonable efforts to negotiate an implementation agreement with other jurisdictions that clearly allocates responsibility to respond adequately to the results of compliance and follow-up monitoring. | The Bill should include requirements for the Agency to negotiate implementation agreements with any jurisdiction that takes on follow-up responsibilities, with the goal of ensuring full transparency and accountability as would be required if the Federal government were leading. | |
| S. xxx Federal authorities must carry out their duties, powers or functions with respect to an approved project in such a manner as to ensure the effective implementation of the follow-up program, and complete transparency of the results of the follow-up program through a central electronic federal registry.
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Federal authorities should have clear legislative responsibility to carry out their regulatory or other duty, power or function with respect to approved projects in such a manner as to ensure the effective implementation of the follow-up programs. Complete transparency of the results should be provided through a central federal registry.
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| There should be clear legislative provisions that require the active engagement of affected Indigenous and local communities in the implementation of follow-up programs, including monitoring programs for any impacts of particular concern to an affected community, regardless of which authority oversees the implementation of the follow-up program. Such assurances will greatly increase public trust in the process.
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| S. 156(1)(X) track compliance with monitoring and reporting obligations with respect to the follow-up programs of approved projects, and report annually on progress and conclusions, including aspects of follow-up that are under the control of other jurisdictions. | There should be a clear legislative responsibility for the Agency to track compliance with monitoring and reporting obligations regardless of the lead authority, to report annually on resulting conclusions about compliance and about the lessons learned about predictions made during the assessment, and about the resulting actions in terms of adaptive management of the approved project. Processes credibility cannot be achieved without clear compliance and reporting requirements, especially if the public has to try to find this out on their own and through access to information applications. | |
| 156(1)(X) ensure that lessons learned about the accuracy of predictions made during past assessments are shared with the public and brought to the attention of those involved in relevant future assessments under this Act. | There should be a clear legislative accountability for the Agency to ensure that any lessons learned about the accuracy of predictions made and about the effectiveness of mitigation measures are reflected in any future assessment where those lessons may be relevant. | |
| S. xx (1) The Minister shall establish, maintain and update at least annually a roster of priority strategic and regional assessment.
(2) The Minister shall initiate at least one strategic and one regional assessment from the roster established under subsection (1) each calendar year. |
The Act should require the Agency to establish and keep current a roster of priority regional and strategic assessments to be carried out, along with a requirement to initiate at least one strategic and one regional assessment each year from the roster so that there is at least some action on these important types of assessment. | |
| S. 12.1 (1) The Agency must consult with other jurisdictions, with affected indigenous communities and with the public on potential policy gaps relevant to the proposed project, and make a recommendation to the Minister for any appropriate strategic assessment to be carried out in parallel with the project assessment to fill any policy gap identified.
(2) The Minister, in accordance with principles, criteria, and guidance prescribed by regulations under section 112.1, shall determine whether to initiate a strategic assessment under section 95. |
The Act should require, as part of the planning phase, the identification of any policy gaps, and the consideration of the need for a parallel strategic assessment to fill the gap, to be initiated as soon as possible, during the information gathering phase of the project assessment. | |
| Section 112 | S.112.1 The Minister shall make regulations within one year of the entry into force of this Act to establish principles, criteria, and guidance respecting the exercise of discretion under sections 9(1), 14(1.1), 16(2.1), 18(1)(a), 22(2), 26(2), 27, 28(3), 29, 33(1)(i), 36(2)(d), 38, 63, 64, 97, 99, …
S. 112.2 The Minister shall make regulations within one year of the entry into force of this Act respecting: (a) Public participation procedures (b) Panel procedures (c) Criteria under section 9 for adding a category of project to the designated project list (d) Direction on how to carry out an effective cumulative effects assessment at the project level, particularly with respect to potential future development, and particularly when there is no current regional assessment available as a source of future development scenarios. (e) Interests to be represented on assessment specific multi-interest planning committees, and how appropriate representatives are to be selected. (f) Processes for regional and strategic assessments. (g) Processes for assessments under sections 81 and 82. (h) Criteria for amending conditions of approval based on the results of monitoring and follow up.
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Need clear and specific Ministerial regulation making powers (and be clear that their development is not optional) on the sections and issues listed. These issues are so central to effective, efficient and fair assessment process that they cannot be left to policy.
The more general discretionary powers are fine for some issues, but these need to be specifically listed and, most importantly, actually required to be developed.
On the factors in section 63, we need regulations detailing sustainability criteria, criteria for assessing a project’s impact on Canada’s climate commitments, and the power to add to the factors listed. |
Meinhard Doelle,
Professor, Schulich School of Law
Meinhard : I applaud your initiative here. Hopefully, your suggested changes will increase transparency throughout the process . Moreover as early planning is critical to the outcome of environmental assessments your suggestions for reinforcing participation in the early stages of the process are welcome. Hopefully, more fulsome transparency and participation, backed up with funding which can be secured through timely intervention of the Agency or review panel, will increase the integrity of the IAA process. This is essential because as we can see for large infrastructure projects like TransMountain, consensus amongst governments, indigenous communities and interested participants is difficult to achieve.