Impact Assessment Agency of Canada: Appearance before the Standing Committee – December 14, 2023
Clean growth regulatory review
Q1. What role does the Impact Assessment Agency of Canada have in clean growth projects?
The Impact Assessment Agency of Canada (IAAC) conducts project-level impact assessments for major projects most likely to have adverse effects within federal jurisdiction, including critical minerals, nuclear, oil and gas, transportation, and projects on federal lands. The Agency serves as the lead and coordinator for Crown-Indigenous consultations during an impact assessment, supporting the participation of other federal authorities or lifecycle regulators as appropriate, enabling a ‘one window’ point of contact for proponents and Indigenous groups throughout the impact assessment process.
Under the Impact Assessment Act (IAA), the Agency also has authority to conduct regional and strategic assessments. These tools allow for a contextual analysis including of cumulative effects of multiple projects and activities, which in turn makes future project-specific assessments more efficient. The Agency is currently conducting regional assessments for Offshore Wind in Nova Scotia and Newfoundland, as well as a Regional Assessment for the Ring of Fire in Ontario, which is an important critical minerals site.
Q2. What progress has been made in improving the regulatory process for clean growth projects?
In Budget 2023, the Government committed to outline a concrete plan to improve the efficiency of the impact assessment and permitting processes for major projects, including clarifying and reducing timelines, mitigating inefficiencies, and improving engagement and partnerships. The Fall Economic Statement 2023 reiterated this commitment indicating that a report will be released in the coming months.
The Ministerial Working Group on Regulatory Efficiency for Clean Growth Projects was established in September by the Prime Minister to advance this work and we will soon be reporting on whole-of-government solutions aimed at improving the efficiency and predictability of Canada’s regulatory system to support clean growth projects.
Q3. How do federal-provincial relations impact progress on clean growth?
The Government is committed to working collaboratively with provinces and territories to ensure that impact assessments are done as efficiently as possible towards the goal of “one project, one assessment”, and to ensure that good projects continue to move forward in a timely and environmentally responsible way.
Many clean growth projects will not require a federal impact assessment and will only be assessed provincially. There is a need to ensure collaborative approaches where federal and provincial assessments and/or permitting are required to ensure efficiency and certainty.
Working relationships between the Agency and provincial counterparts are positive, and cooperation takes place on all projects that require an assessment at both the federal and provincial levels.
Many provinces intervened in the Reference case on the constitutionality of the Impact Assessment Act at the Supreme Court of Canada. With clarity from the Court as to the changes that are needed to the Act, and the Court’s affirmation that the environment - and impact assessment in particular - are areas of shared jurisdiction between the federal and provincial legislatures under the Constitution, we have a renewed basis on which to engage with provinces to maximize cooperation.
Until amendments are made to the Impact Assessment Act, the Government of Canada has put in place guidance on the interim administration of the Act. In this interim period, the Agency stands ready to work with proponents to facilitate continuity in the impact assessment process so that time is not lost for proposed projects. The Agency will continue to seek to work in close cooperation with the provinces, with its emphasis clearly on the prevention of adverse effects in federal jurisdiction.
Q4. How does Canada’s regulatory process for clean growth projects compare to that in other jurisdictions?
First, it is helpful to clarify that the approach to assessments differs from jurisdiction to jurisdiction. For example, the IAA is focused only on major projects with the potential for adverse effects within federal jurisdiction. By way of comparison, the U.S.A.’s National Environmental Policy Act (NEPA) subjects a much wider range of development projects to environmental impact assessments than those covered by the IAA.
The impact assessment process under the IAA includes requirements for robust consultation and engagement with Indigenous peoples throughout each phase of the process other jurisdictions do not have the same requirements regarding Indigenous rights, consultations, and accommodations.
While stated timelines may seem shorter, not all jurisdictions have the same starting point for legislated timelines. For example, significant amounts of work may occur before the legislated timelines officially start – not giving the full picture of how long projects take to work through assessments.
As part of our work, the Ministerial Working Group on regulatory Efficiency for Clean Growth Projects is looking at how other jurisdictions, including the U.S.A., are working to better coordinate their regulatory processes and that will inform our recommendations.
Q5. How does the Agency engage with Indigenous peoples in the context of clean growth?
Advancing the full participation of Indigenous peoples in Canada’s clean growth agenda is essential and there are key priorities that we need to address collectively to ensure that this is done effectively.
The Agency has been collaborating with CIRNAC on the whole-of-government approach to consultation and accommodation. The Agency has also had success in leveraging key federal programs, like the Strategic Partnerships Initiative, to fund accommodation measures in the past.
Project-specific Indigenous engagement during impact assessments contributes to increased clarity on the scope of issues to be addressed, can help with timelines, and manages expectations without precluding the discussion on important issues.
In addition to project-specific Indigenous engagement, the Agency can also leverage regional assessments to address some of the issues raised through project-specific Indigenous engagement. Early experiences with regional assessments have demonstrated that discussions at a regional level can create efficiencies across multiple projects.
The Agency’s funding programs continue to be important tools for supporting Indigenous participation in major projects, specifically impact assessment processes. The Agency provides funding to support Indigenous consultation at key stages of the assessment process of designated projects, which includes the planning phase and the implementation of follow-up programs.
The Agency’s Indigenous Capacity Support program also provides funding to support the development of capacity so that Indigenous peoples are prepared to meaningfully participate and increasingly take on leadership roles in impact assessment.
Q1. What is the current status of the impact assessment process? What about proponents that are already in the system?
Environmental assessments have been evolving for over 50 years. The Supreme Court of Canada provided direction in the recent Reference Case on the Impact Assessment Act that is another example of this evolution, and we will bring forward amendments to address the Court’s opinion.
Until amendments can be brought into force, the Government of Canada provided guidance on the interim administration of the Impact Assessment Act that will be applied to provide continuity for proposed projects in the impact assessment process.
The Government of Canada will work with proponents and Indigenous partners to facilitate continuity in the impact assessment process so that time is not lost for proposed projects.
The interim measures include, but are not limited to:
Providing an opinion on whether there is a clear federal jurisdiction for projects currently in the system;
Collaborating with proponents on gathering the information required to support assessments;
Engaging and consulting with Indigenous peoples through the assessment process, including on the potential adverse impact of designated projects on the exercise of Aboriginal and Treaty rights as recognized and affirmed in section 35 of the Constitution Act, 1982;
Exploring opportunities to maximize collaboration with provinces to take full advantage of provincial assessment of factors that they are examining and focus federal assessments on potential adverse effects in areas of federal jurisdiction.
The Government of Canada stands ready and will work with those proponents who do not wish to lose time by providing advice, helping to collect information and continuing consultations where possible.
Regional assessments already underway will continue, in cooperation with Indigenous groups, provinces and stakeholders. Regional assessments are an opportunity to better understand impacts of specific activities in particular areas, and do not involve decision making on specific projects.
Assessments that are ongoing under the Canadian Environmental Assessment Act, 2012, will continue in a way that aligns with the Supreme Court’s opinion.
Q2. Can you provide details on the plan for the amendments, when will they happen?
The Government of Canada is working quickly and diligently on targeted and meaningful legislative amendments required to provide regulatory certainty for major project proponents, Indigenous partners, industry and environmental stakeholders, as well as for Canada’s investment climate.
We will continue to work collaboratively with provinces and territories, Indigenous partners, industry, environmental groups and the public to determine a path forward for sustainable development in Canada.
We understand that Canadians, stakeholders and Indigenous peoples are looking for certainty and we are working diligently and as quickly as possible.
Q3. Will there be consultation on the proposed amendments with Indigenous peoples and will the Government of Canada continue to work with provincial governments?
The Government of Canada is still analysing the decision and determining a path forward for the necessary engagement and legislative amendments required – including ensuring that the requirements of the United Nations Declaration on the Rights of Indigenous Peoples Act are respected.
The amended Act will remain consistent with the United Nations Declaration on the Rights of Indigenous Peoples and will continue to provide the same opportunities for meaningful engagement and participation of Indigenous peoples in the assessment process with the aim of securing their free, prior and informed consent.
The Government of Canada has signaled that the amended Impact Assessment Act will also continue to include robust cooperation tools for working with provinces in a way that more clearly reflects the respective federal and provincial areas of jurisdiction.
Q4. Does this opinion limit the Government of Canada’s ability to fight climate change? Does the opinion affect carbon pricing?
No. The Government of Canada remains committed to advancing its clean growth agenda. The Government of Canada has many policies and programs in place to achieve its climate change and GHG goals.
In 2021, the SCC gave its opinion that the Greenhouse Gas Pollution Pricing Act (GGPPA) was constitutional. The IAA Reference involved constitutional arguments that were distinct from those in the GGPPA Reference.
