Impact Assessment Agency of Canada: appearance before the Standing Committee (November 4, 2020)
Consultations
Q. How does the impact assessment process reflect Indigenous views and perspectives?
The Government of Canada consults and partners with Indigenous peoples as part of the new impact assessment process. In addition to consultation to meet the Crown’s common law duty to consult, the Agency focuses on early and inclusive engagement and participation at every stage, in accordance with a co-developed engagement plan. The aim is to secure free, prior and informed consent through processes based on mutual respect and dialogue.
Relationship-building is supported by having the Agency as lead of the Government of Canada’s consultation efforts enabling a “one window” point of contact for Indigenous groups throughout the assessment.
Provisions in the Impact Assessment Act provide increased opportunities for cooperation and collaboration including options for co-development and for the integration of Indigenous-led studies and assessments.
The Act also includes mandatory consideration of Indigenous knowledge, streamlined participant funding to support Indigenous participation and capacity development, and requirements to consider potential impacts on Indigenous rights and culture in assessments and decision-making
Q. How are opposing views amongst affected Indigenous groups or within communities balanced in the federal review process (e.g. elected vs. hereditary chiefs)?
The Government’s role in leading federal Crown consultation with Indigenous peoples in the context of impact assessment is not to balance the views or concerns expressed by different Indigenous groups but rather to facilitate a meaningful dialogue with affected Indigenous groups.
Analysis of all evidence and perspectives will factor into the Agency’s assessment of the potential project effects (both positive and negative) and impacts on Indigenous rights and interests. This analysis supports decision making by presenting all of the various perspectives and recommending the best available options for avoiding, mitigating or accommodating adverse impacts.
Q. How have Indigenous and Public consultations been impacted by the Pandemic?
The pandemic has created significant challenges for Indigenous communities across the country as they have focussed their efforts on protecting and ensuring the health and safety of their members.
Officials from the Agency have been in close contact with Indigenous partners over the last several months ensuring that every effort has been made to adapt the approaches taken to consultation in order to respond to the unique circumstances and challenges faced by Indigenous communities during the pandemic.
Agency officials have adapted flexible approaches to find ways to effectively continue dialogue with Indigenous communities during this time. This has included use of new technologies to hold virtual meetings, extension of comment periods and other timelines where possible, and other methods to ensure that the Government of Canada has continued to work in partnership with Indigenous communities to find innovative ways to continue to advance dialogue and consultations during this unique and difficult time.
In addition, meaningful engagement with the public continues even where face-to-face meetings are not possible during the COVID-19 pandemic. The Agency currently has many tools available for virtual engagement that allow the continuation of meetings with communities during the impact assessment process to ensure that those who want to participate have the opportunity to do so.
Meaningful engagement with the public includes online comment periods, virtual meetings or information sessions, depending on the objectives of the consultation. The information gathered during these activities informs key steps of the impact assessment process including the final public interest determination.
Impact Assessment Act implementation and key projects
Q. What are the benefits of the IAA?
The rules governing Canada’s impact assessment system are designed to protect the environment, ensure sustainable projects can move forward safely, and instill public confidence in how the Government of Canada makes decisions about major projects like mines, pipelines and hydro dams.
The Impact Assessment Act aims to achieve these goals while also fostering reconciliation with Canada’s Indigenous peoples, encouraging investment, and creating new jobs and economic opportunities for Canadians.
The IAA requires analysis of the environmental, health, social and economic effects of projects, both positive and negative. These factors inform decisions on whether a project is in the public interest.
The IAA increases regulatory certainty and clarity, encouraging investment in Canada’s natural resources sectors. The goal of the Act is “one project, one assessment”. The Act streamlines the process and improves coordination with the provinces and territories to reduce red tape for companies and to avoid duplicating efforts in reviewing proposed projects.
The Impact Assessment Act contains a number of provisions related to cooperation with other jurisdictions including tools for cooperation on individual assessments (coordinated assessments, delegation of portions of assessments, substitution and joint review panels) and authority for the Minister of Environment and Climate Change to enter into formal cooperation agreements.
The Agency is actively cooperating with provinces on individual project assessments being conducted under the Canadian Environmental Assessment Act, 2012 (CEAA 2012) and the Impact Assessment Act through a variety of mechanisms. In all projects, the Agency seeks to align with provincial processes to the fullest extent possible.
The Agency is also working to develop updated instruments to guide cooperation with provinces on future projects. The Agency has presented provinces with a range of potential instruments for formalizing cooperation.
There is currently one cooperation agreement in place under the Impact Assessment Act, between the federal Minister of Environment and Climate Change and the British Columbia Minister of Environment and Climate Change Strategy signed in August 2019. Bilateral environmental assessment cooperation agreements, as well as other less formal instruments to guide cooperation, were developed with the majority of provinces under the former Environmental Assessment Act.
Q. What has been the implementation experience to date?
Experience to date has demonstrated that the impact assessment process can be effectively implemented as planned; supporting predictable, robust, and timely assessments. IAAC as the single Agency responsible for conducting all major project assessments has provided more clarity and consistency for all stakeholders.
Legislated time limits in relation to all projects subject to IAA have been met.
IAAC has accepted 11 initial project descriptions since the IAA came into force in August 2019.
Five projects have completed the Planning Phase.
Two will be impact assessments by Agency (Webequie and Marten Falls Roads Projects);
One was referred to a Integrated Review Panel (Gazoduq);
One will be a substituted IA by British Columbia (Cedar LNG); and
One for which no impact assessment was required (Prairie Lights Power).
This is on track with the historical rate of submissions under the previous CEAA 2012 regime, and speaks to the confidence that many industry stakeholders have in the new assessment system.
Indigenous consultation and public participation continue to be essential components of an open, informed and meaningful impact assessment process. Even with COVID restrictions, meaningful engagement has continued in alignment with public engagement principles that allow for transparency, mutual respect and two-way dialogue.
To support the implementation of the Impact Assessment Act and provide explicit guidance to proponents, the Agency has published a Practitioner’s Guide. It provides guidance on the new elements of the Act, including sustainability, gender-based analysis plus, assessing impacts to Indigenous rights, and provides operational information to proponents on topics such as how to prepare an initial project description and a detailed project description.
More broadly, Government has been delivering on the commitment to address larger regional and strategic issues that cannot be addressed on a project-by-project basis. To that end, under the Impact Assessment Act I launched two regional assessments – one on the Newfoundland and Labrador Offshore and the other focused on Ontario’s Ring of Fire area – and am also advancing strategic assessments which are helping to address greenhouse gases and climate change.
Q. How are climate commitments (e.g. Paris Accord, Net Zero 2050) dealt with in the federal review process?
The Impact Assessment Act requires the consideration of the extent to which a project hinders or contributes to Canada’s ability to meet its climate change commitments.
The climate change information and analysis to be taken into account are guided by the Strategic Assessment of Climate Change and are set out clearly for each project assessment.
For example, depending on the project, requirements for impact assessments include the project’s main GHG sources, direct and upstream emissions estimates and how the project can contribute to Canada’s efforts to reduce GHG emissions. For projects continuing past 2050, requirements also include a credible plan for reaching net-zero emissions by 2050.
The climate-change implications of a project are considered in the impact assessment report, and ultimately as a Public Interest factor in the impact assessment decision.
Q. How has the COVID-19 pandemic impacted project assessments?
The Impact Assessment Agency of Canada (IAAC) has continued to advance impact and environmental assessments throughout the COVID-19 pandemic.
IAAC is taking into account that there may be potential consultation challenges for Indigenous groups and the public because of the pandemic.
Early in spring 2020, considering the challenges of advancing necessary consultations, I [the Minister of Environment and Climate Change] extended the timeline for the issuance of decision statements on three projects by 90-days (Roberts Bank Terminal 2; Milton Logistics Hub, and Laurentia Deep-Water Wharf), as well as extended the timeline for the submission of the panel report for the Grassy Mountain Coal Project.
Q. What is the status of the Roberts Bank Terminal 2 project assessment?
Vancouver Fraser Port Authority (VFPA) is proposing to construct and operate a new three-berth marine container terminal at Roberts Bank in Delta, B.C. Projected cost is approximately $3.5B.
On March 27, 2020, the Review Panel submitted its Report and recommendations.
After reviewing this report, in August an information request was issued to VFPA for additional information on proposed mitigation measures related to potential project, and effects on fish and fish habitat, killer whales, and migratory birds.
Following receipt of this information from the Port, the Government will have approximately 3 months remaining on our legislated timeline to make a final decision on the Project. In the interim, IAAC is coordinating post-panel report consultations, including coordinating consultations with the Province of B.C.
Q. What is the status of the Milton Logistics Hub project assessment?
CN is proposing to construct and operate a logistics hub to transfer containers between trucks and railcars in Milton, ON.
On Sept 21, 2020, the Government of Canada announced an extension of up to 90-days to make a final decision on the Project. A final decision will be taken no later than December 22, 2020.
Newfoundland Offshore Regulations
Q. What are the Regulations affecting offshore exploratory projects under the Impact Assessment Act?
The Government of Canada is committed to ensuring that projects are assessed in a manner that maintains high standards of environmental protection. The Government is also committed to ensuring that such processes are efficient and enable good projects to proceed.
The Regulation includes robust mitigation measures and codifies them as conditions to ensure proponents are adhering to the same level of rigour established in project-specific federal assessment processes.
This Regulation is informed by scientific data and analysis. It has also been informed by stakeholder insights obtained during extended public consultations on the Discussion Paper on the Ministerial regulatory proposal and during the Regional Assessment Committee’s engagement program that involved 41 Indigenous groups and 58 stakeholder groups, as well as federal and provincial government representatives and members of the public.
The Government of Canada is committed to using Regional Assessments to improve the efficiency of the federal assessment process while ensuring the highest standards of environmental protection continues to be applied and maintained.
Q. What is the status of the judicial review by environmental organizations challenging the Regional Assessment and associated Ministerial Regulation, and how will it affect future exploratory drilling projects in the eastern portion of the Canada-Newfoundland Offshore Area?
A judicial review of the Regional Assessment and the Regulation was initiated in May 2020. The overall schedule for the remaining stages of this judicial review and the timing of an associated decision are currently being determined by the court.
The Government of Canada will continue to defend the application for judicial review that has been brought against the Regional Assessment Report and the Regulation.
Q. How have the outcomes of the Fisheries and Oceans Canada (DFO) Science review, which suggested serious deficiencies in the content of draft Regional Assessment report and called into question the appropriateness of using these available data for decision-making been addressed?
DFO was a key participant in the Regional Assessment, and provided information / datasets, analysis, advice and review functions for various components that related to its areas of expertise and mandate including for marine fish and fish habitat, marine mammals and sea turtles and special areas.
As part of this on-going involvement, in late 2019 the Committee requested that DFO undertake a review of some early drafts of several components of the Regional Assessment (GIS modules), as input into their continued development. This request triggered a Canadian Science Advisory Secretariat (CSAS) review process that concluded in late November of that year. The resulting CSAS Report eventually helped inform a set of scientific advice from DFO on these early draft modules.
Based on the official scientific advice provided by DFO on these and other components in late 2019, substantial additions and revisions were made to these initial draft Regional Assessment sections ahead of public consultations on the draft report and recommendations.
DFO’s involvement in the assessment helped to enhance the robustness and utility of the Regional Assessment outcomes, and to ensure that these materials and associated decision-making are based on sound science.
Project designations (including Vista Coal Underground Mine Project, Vista Coal Mine Phase II Expansion Project and Castle Project)
Q. How many projects has the Minister designated under the Impact Assessment Act?
Since coming into force, the Minister has taken 20 designation request decisions and has designated two (2) projects to be assessed under the Impact Assessment Act. There is one request currently under consideration.
Coalspur Vista Mine (AB): On July 30, the Minister designated this project and issued an order for an impact assessment. The proponent is expected to submit an initial project description.
Castle Mountain Coal Mine (BC): On August 19, the Minister designated this project and issued an order for an impact assessment. An initial Project Description was accepted on October 14, 2020.
Vivian Sand Facility and Extraction Projects (MB): On August 18, 2020, the Minister received a designation request, and has subsequently received three more designation requests. The Ministerial response is due by November 12, 2020.
The Impact Assessment Act provides a discretionary authority to designate projects when there are potential adverse effects in areas of federal jurisdiction. This exceptional power also existed under CEAA 2012.
If pressed on designation of Castle Project in BC:
The Minister designated this project because, among other reasons, the project may cause adverse effects in areas of federal jurisdiction such as cross border impacts on water quality that may not be fully addressed by the provincial assessment process.
IAAC and BC are working closely together in support of the principle of one project, one assessment and expect the assessment processes to be fully coordinated.
If pressed on designation of Coalspur Vista Underground Mine and Phase II Expansion Project(s) in Alberta:
The Minister designated this project because, among other reasons, the projects may result in potential adverse environmental effects to fish and fish habitat, species at risk, and Indigenous peoples and their rights.
IAAC will work with the Alberta Energy Regulator to coordinate the assessment processes to the greatest degree possible.
