Note: This post was prepared jointly with my colleague, Professor John Sinclair at the University of Manitoba.
The federal government is currently consulting on key regulations to be developed under the proposed new Impact Assessment Act. They deal with the list of projects to be assessed, and issues related to time management and information requirements under the new process. In this post, we offer our views on some key process issues that we have concluded can and should be addressed in the time management and information requirements regulations. We defer our assessment of and comments on the project list regulations until there is more information available during the next round of consultations, once the discussion shifts from criteria for the project list to a consideration of what projects should be listed.
We have organized our comments below around the questions posed in the consultation document (https://www.impactassessmentregulations.ca/information-management-and-time-management). Our focus has been on ensuring that the regulations clearly inform and guide the implementation of the IAA in areas where the Act itself lacks process detail and/or provides broad discretion. The suggestions proposed are designed to ensure greater effectiveness, certainty and timeliness of the IA process. Some further adjustments may have to be made depending on the outcome of the ongoing Parliamentary process with respect to Bill C-69.
What are your views on the proposed components in the initial project description (Annex I)?
The requirements of the initial project description in the discussion paper are quite detailed and focused with respect to the information about the proposed project and potential alternative means of carrying out the project. The level of detail with respect to the proposed project at this early planning phase in combination with the focus on alternative means could signal a bias against the full consideration of reasonable ‘alternatives to’ the proposed project. The regulations should make it clear that the whole idea of early planning is to be sure we have the right project to fit the societal need, purpose or rational the project is intended to serve. It is not enough to consider alternative means by which the proponent could undertake its project. We are not necessarily suggesting that the proponent should explore these alternatives to its proposed project, but it should be clear from the start that alternatives are an important part of the assessment process.
The role and perspective from which the need, purpose and rational of a proposed project are considered should be clarified in these regulations. If the initial project description only identifies the proponent’s need and purpose, the regulations should clarify that while it is important to understand the proponent’s need, purpose and rational for a proposed project, this cannot be the sole basis for the assessment, and in particular, that alternatives have to be considered through the lens of the societal need, purpose, and rational of the proposed project. A key issue that should be clarified in this regard is who will identify the societal need, purpose and rational of the project, and the alternative ways of achieving such societal goals to be considered in the assessment phase.
The regulations must make it clear that additional alternative means can be identified at any time throughout the assessment. The Agency and any Panel must remain open to exploring new alternative means suggested by intervenors and the proponent during the course of the assessment and time management must allow for this to occur. Identifying new alternative means is a key benefit of any assessment, as it is the primary way to reduce negative impacts, risks and uncertainties, while increasing benefits.
What are your views on the proposed components in the detailed project description (Annex II)?
We have concluded that a revised and more detailed project description at the end of the planning phase is a helpful addition to the process. However, in line with our previous comments about alternative means, the regulations must clarify that the detailed project description submitted at the end of the planning phase is not a final description or version of the proposed project, i.e., its submission does not limit the consideration of alternative means of carrying out the project during the course of the assessment. New alternatives means can and should be identified during the assessment phase (such as by way of finding innovative ways to mitigate impacts). New alternative means may also result in new information requirements. Such is the iterative nature of good assessments, something that should be clearly and consistently signaled through regulations and policy guidance for the new assessment process.
The regulations should clarify the implications of changes to project description by the proponent for information gathering and for timelines. For example, in the Lower Churchill project, the proponent proposed a significant change to the project just as the panel was ready to declare that it had sufficient information to proceed to hearings. This resulted in some delays in making the sufficiency finding and proceeding to the hearing. This delay was necessary to ensure adequate public consultation and information requests to the proponent to consider the implications of the proposed change.
The regulations should clarify the ability of the Panel and/or Agency (depending on who leads the assessment phase of the process) to consider and recommend changes to the project through recommendations and conclusion, and that these recommendations and conclusions can go beyond the project as described in the project description. In other words, it will be important to be clear in the regulations that the detailed project description does not hinder the ability of intervenors, the proponent, the panel or the Agency to consider and recommend alternative means as a way to reduce impacts, maximize benefits, or reduce risk or uncertainty associated with the project as proposed by the proponent in the detailed project description.
The timing of the submission of the detail project description in relation to associated decisions and documents must be clarified. Among associated documents and decisions that appear particularly relevant are the impact statement guidelines, the impact statement, various assessment related plans, a permitting plan, and potentially a scoping document. There is indication in the consultation document that the proponent has to prepare a document (perhaps the impact statement) that responds to a document that the Agency is going to prepare (perhaps the impact statement guidelines) regarding issues to be considered (which seems to include public involvement lead by the Agency). The regulations need to clarify the timing of the submission of these documents and when the public gets the opportunity to review and comment on the proponent’s responses. We think it is important going forward to clarify whether these documents are essentially the impact statement guidelines and the resulting proponent’s impact statement, or whether these are different documents. More consistency and clarity in the use of terminology will be helpful going forward.
The regulations should clarify what public participation the proponent is reporting on as part of the detailed description. The proponent should carry out public engagement before the early planning phase. The meaningful public engagement during the early planning phase should be carried out by the Agency, not the proponent. The initial project description should include the results of the proponent’s engagement prior to submission. While the detailed project description should include the same information, the Agency should report on the results of its meaningful engagement with the public during the early phase separately. This is critical, as it is the only way the Agency can independently verify during the early planning phase whether the proponent has understood and accurately communicated the views of the public.
What are your views on the documents the Agency is required to provide to proponents if it is determined that an impact assessment is required?
In terms of information needs and the scope of the assessment, the regulations should separate the impact statement guidelines issued to the proponent from more general information requirements, and from scope (i.e., decision on what is part of the assessment and what is not). In particular, we have identified the following needs for the regulations:
- The regulations should be clear that scope determination is made after the impact statement is filed by the proponent, and in the case of a panel review, the scope determination will be made with input from the panel.
- The regulations should be clear that the purpose of the impact statement guidelines is to identify information gathering requirements of the proponent, not to make a final scope determination. In other words, the impact statement guidelines are an opportunity to focus the information needs for the proponent, but they do not represent a scoping decision.
- The regulations should be clear that additional information can be required from the proponent during the course of the assessment and that filling such information needs may stop the clock as warranted.
- The regulations should be clear that the assessment can consider issues for which the proponent is not required to provide information. For example, the information basis for an issue that is within the scope of the assessment but not included in the impact statement guidelines can come from federal expert department or agencies, another jurisdiction, or through the science review.
- It will be important to clearly separate the information requirements of proponents and information to be provided by federal expert departments and agencies/regulators or by other jurisdictions.
The regulations should clarify the means by which the Agency will achieve meaningful public participation through the development of the public participation plan, an important part of the early planning phase. We have recommended before that the best way to accomplish this and other key outcomes of early planning is through the establishment of an early planning advisory committee. Regardless of whether this is set out in the Act, we still think that as a matter of practice and good process, this is the best way to proceed with the implementation of the early planning phase. Members of the public will want to share their knowledge and views on how participation should occur during the development of the EIS – not just the assessment phase – and the Agency should consider and report on the results of its engagement with the public during the early planning phase.
The approach to participation in the early planning phase and the decision on a panel or agency lead assessment should be clarified in the regulations. Unless the project list is significantly expanded, it is likely that for many of the projects the IAA appears to be aimed at, the public is going to demand panel reviews. This raises the question of whether the decision about a panel review is going to be made before the development of the participation plan. If so, this has to happen quickly so that there is still time to get input on the public participation plan. A key point here is that the public participation plan is important for both process options, not just Agency reviews. For both types of assessments, the public participation plan will be an effective way to encourage the use of the full range of public engagement tools available to it, rather than default to formal hearings and written submissions as the only ways to engage.
The Cooperation Plan should include a preliminary list of federal expert departments and agencies that are expected to provide information and to set out the information each is expected to provide, and by when. The Cooperation plan should also identify any information other jurisdictions have agreed to provide and by when. As much of this information as possible should be gathered in parallel with the preparation of the impact statement by the proponent. Examples would include information on possible future development scenarios, alternatives, and socio-economic conditions in affected communities.
The regulations should clarify that the permitting plan should be recognized as an important stepping stone to monitoring and follow up. Specifically, the regulations should identify what permits, approvals, licenses, etc., are needed in case of project approval. They should furthermore identify possible roles of relevant jurisdictions and their agencies and departments in monitoring and follow up based on expected regulatory responsibilities.
Further, the consultation document suggests that the Agency needs to produce ‘a document’ that outlines a series of assessment related “issues provided by the Agency” that the proponent is required to respond to. It is also not clear when during early planning it is anticipated this will be produced and when the proponent is required to respond. Page 4 of the consultation document only indicates: “The proponent’s response to the issues provided by the Agency following engagement and cooperation discussions”. The timing of the issuing of this document will be critical – enough time is needed to develop it and time is needed for the proponents required response.
What are your views on the proposed criteria under which the clock for timelines in the proposed legislation could be suspended?
We have commented before that the prescribed generic timelines themselves are inevitably arbitrary in the context of the expected diversity of individual projects to be subject to an assessment, that the 180 days for the early planning phase is hugely ambitious and that the timelines for panel and agency lead assessments may limit or preclude important process options, such as engaging in ADR. For these reasons, clarity on opportunities to add time or suspend the clock will be critical for an effective assessment process.
The regulations should clarify that the appropriateness of the legislative timeline will be considered during the planning phase, and in case the time is deemed insufficient in light of the scale and complexity of the project, the Minister will extend it even before the assessment starts. Furthermore, the regulations should clarify that in case of information requests to the proponent or caused by the proponent (such as a change to the project description), time is automatically suspended, or, at a minimum, a clear expressed expectation that time will be suspended at the request of the Agency or the Panel in charge of the assessment.
More generally, suspension of time should be approved in case of any significant information gaps, regardless of whether the information need was identified during the planning phase or identified for the first time during the assessment phase. In particular, if the agency or the panel in charge of the assessment process determines that the issues and information needs identified during the planning phase missed something important, the process needs to allow for sufficient time to fill the gap. This is critical for an effective assessment process, and it offers a built-in incentive to the proponent (before the early planning phase) and the Agency (during the early planning phase) to engage those affected early and fully, to reduce surprises during the assessment phase.
The regulations should be clear on how the criteria for deciding to suspend time will be applied (and who can petition for such a suspension) to ensure an efficient and fair process.
The Minister has until 45 days after the end of the early planning phase to decide whether to proceed by way of a panel review. As previously noted, in the case of a decision to refer the assessment to a panel, the regulations should clarify how the information on meaningful participation gathered during early planning for the public participation plan will be implemented by the panel and how the panel will be given the time and capacity to do so. The central point here is that the decision to refer to a panel should not pre-judge the form of engagement. A combination of a public participation plan to encourage more diverse engagement tools, and careful consideration of the time needed to effectively use alternative means of engagement by the panel, will be critical. The challenge of engagement primarily through formal hearings have been particularly obvious with indigenous communities, but the broader focus of assessments to include broader social, health and economic considerations will make the use of appropriate engagement tools for any affected community more urgent than ever.
It seems reasonable that the Agency or a panel may want to stop the clock or add time in the event that they want to engage in more deliberative forms of engagement with participants, such as through ADR. Likewise, ensuring the meaningful engagement of affected communities, and finding the needed capacity for such engagement, could be valid reasons for stopping the clock. Another important reason for stopping the clock would be to provide time for the information responses from others, particularly other jurisdictions, that are not responding in a timely way. Lastly, it also seems reasonable that the proponent may see the need to request a suspension of time. A proponent may recognize that if some more time is taken to resolve an issue, a more favourable outcome may be the result. In the absence of additional time, if such an issue has to be resolved within a strict timeline, this could in fact lead to an unfavourable outcome from the proponent’s perspective.
In conclusion, while the discussion paper provided some guidance on what the Agency might be considering for these regulations, detailed and specific input can only be provided as the regulatory language is developed and made publicly available. Some of its content will also depend on the final version of the Act. For example, potentially restrictive changes to the consideration of alternatives are currently under consideration. Similarly, the approach to these regulations will have to be considered in line with the development of the project list regulation. In particular, a better sense of the number and nature of projects that will be assessed under the new process will be critical to the full consideration of the best way to design an effective, efficient and fair process within the new statutory framework.
Professor, Schulich School of Law