Impact Assessment Act: Separating Fact from Fiction
Presented by: Gavin Fitch, Partner, McLennan Ross
Gavin Fitch of McLennan Ross works in the environmental and energy regulatory practice group and has provided external counsel to review panels under federal environmental assessment legislation for almost 15 years. In that time period, the Canadian Environmental Assessment Act (1992) was replaced by the Canadian Environmental Assessment Act, 2012, which was replaced by the Impact Assessment Act in 2019. This presentation, Impact Assessment Act: Separating Fact from Fiction, dives into the act, what it is and how it’s different from or similar to previous federal environmental/impact assessment legislation.
BACKGROUND
In the 2015 Canadian election, the Liberals promised a review of the existing environmental assessment legislation. The environmental assessment process under the Canadian Environmental Assessment Act of 1992 was criticized by project proponents for taking too long. In 2012, Stephen Harper and the Conservative government repealed the Canadian Environmental Assessment Act of 1992 and replaced it with the Canadian Environmental Assessment Act, 2012 (CEAA 2012). This act was criticized by environmental groups and some Indigenous groups for various reasons, including:
· The change to a “designated project” model resulted in a large decline in the number of federal environmental assessments;
· Public participation in the environmental assessment process was restricted.
The new Impact Assessment Act (IAA), which was introduced as part of Bill C69, has replaced CEAA 2012. Bill C69 repealed CEAA 2012 and replaced with the IAA; repealed the National Energy Board Act and replaced it with the Canadian Energy Regulator Act; and amended the Navigation Protection Act and renamed it the Canadian Navigable Waters Act.
There are two ways in which a federal impact assessment can be carried out. The most typical one is a standard assessment conducted by the Impact Assessment Agency of Canada (Agency). A federal impact assessment can also be referred by the Minister to a panel of independent experts (Review Panel). The Review Panel then holds hearings and provides a report. A Review Panel assessment is typically ordered by the Minister if the project is large, has potential significant impacts, or is controversial.
PROCESS
The process for an Agency assessment or a Review Panel assessment starts with the planning phase. A proponent of a designated project will submit a project description to the Agency and the Agency will provide a public notice and invite public participation. The Agency will then compile a summary of issues in relation to the project for the proponent. After that, the proponent will provide a more detailed project description for the agency to determine whether an impact assessment is required. If it is, they will let the proponent know of the information and studies that need to be carried out. Even if the project is not on the designated list, the Minister has the discretion to order an impact assessment. In the Impact Assessment Act, the scope of the impact assessment has been broadened, as has the opportunity for public input. There are still timelines under the IAA, however, it is debatable whether these timelines are actually any shorter.
The last step in the process is the decision phase. The decision is made on whether the project effects are in the public interest, the project’s contribution to sustainability, what mitigation measures have been presented, and how the project will affect the Government of Canada’s ability to meet environmental obligations and climate change commitments.
IMPACT ASSESSMENT TRIGGERS
Under the original Canadian Environmental Assessment Act of 1992, the main trigger of an impact assessment is whether or not there will be an exercise of federal power or authority. If a permit was required through other acts, such as the Fisheries Act or Navigable Waters Act or is on federal lands, an environmental assessment will be triggered.
CEAA 2012 moved to a designated projects model; that is, a regulation was published listing certain projects as being designated to undergo federal environmental assessment. The designated projects model has been retained in the Impact Assessment Act.
WHO CARRIES OUT ASSESSMENTS
In the original Canadian Environmental Assessment Act of 1992, environmental assessments were carried out by whichever federal authority was the “responsible authority” (unless the assessment was referred to a Review Panel). So, if the Department of Fisheries and Oceans had to issue a permit, they would carry out the environmental assessment. CEAA 2012 changed this so that non-Review Panel assessments were carried out by the Canadian Environmental Assessment Agency (except that projects regulated by the National Energy Board were assessed by the NEB). CEAA 2012 also provided that if the federal government is confident that the provincial authority will carry out an environmental assessment that meets all the federal requirements, they can leave the assessment to the provincial authority. This remains the same under the Impact Assessment Act.
ENVIRONMENTAL ASSESSMENT SCOPE
Under the original Canadian Environmental Assessment Act of 1992 the scope of an environmental assessment was determined by the Minister and these “scoping decisions” were the source of much controversy and litigation. This largely disappeared with the change to CEAA 2012. Under the current IAA, there has been a change to the scope of assessments, in that it is not just the environmental effects that are examined now. The scope now includes health effects, social effects and economic effects. Hence the change from “environmental assessment” to “impact assessment
TIMELINES
In the original act of 1992, there weren’t any timelines. However, in the subsequent acts, timelines have been inserted. Under CEAA 2012, the Minister’s decision on an agency assessment was required within one year and on a Review Panel assessment within 2 years. Under the Impact Assessment Act, an agency assessment must be submitted to the Minister for decision within 300 days and a Review Panel assessment must be submitted within 600 days. However, there is no explicit deadline within which the Minister must make a decision.
To date, only one project, the Cedar LNG project, has been the subject of a Ministerial decision under the Impact Assessment Act.
TAILORED IMPACT STATEMENT GUIDELINES
Under the IAA, the federal government has created “tailored impact statement guidelines”, which are intended to provide direction to a proponent on the factors to be considered, methodology information requirements, and general guidelines provided to the proponent during the planning process.
CONCLUSION
The purpose of the Impact Assessment Act is largely unchanged from CEAA 2012. However, there is an increased emphasis on Indigenous rights, traditional community knowledge, etc. The concept of sustainability has also been broadened and given new emphasis: impact assessments are now to consider GHG emissions and Canada’s commitments to climate change. The scope of assessments has also been broadened beyond just environmental effects to include health and socio-economic effects. Timelines have not improved but not become worse. As more projects enter the impact assessment process, we will start to see the results of the new Impact Assessment Act over time.
