Consultation Paper on a Ministerial Order that sets out the Classes of Projects on Federal Lands and Outside Canada that will cause only Insignificant Adverse Environmental Effects

Purpose

Subsection 88(1) of the Impact Assessment Act (IAA) provides the Minister with the authority to, by order, set out classes of projects on federal lands and outside Canada that will cause only insignificant adverse environmental effects. An authority seeking to carry out a project that is part of one of these classes would not be subject to the IAA provisions for projects on federal lands and outside Canada.

The purpose of this paper is to seek views on proposed classes of projects (included in Annex I) that would be set out in a Ministerial Order issued under subsection 88 (1) of the Impact Assessment Act (Ministerial Order).

Context

The Government of Canada is implementing new rules that protect the environment, recognize and respect Indigenous rights, and strengthen our economy through the Impact Assessment Act (IAA).

The IAA establishes an impact assessment process to serve as a planning tool, which takes into consideration the whole range of environmental, health, social and economic effects of projects. The new impact assessment process will be led by the Impact Assessment Agency of Canada (Agency). Similar to the process under the Canadian Environmental Assessment Act, 2012, impact assessments under the IAA are conducted for proposed physical activities that are “designated projects”, either by regulation or by the Minister of Environment and Climate Change (Minister).

The IAA also includes requirements for authorities to determine whether a project on federal land or outside Canada (i.e. non-designated projects) is likely to cause significant adverse environmental effects before taking action or making a decision that would enable the project to proceed (sections 82-83). If the authority determines that the project is likely to cause significant adverse environmental effects, the project is not permitted to proceed unless those effects are determined to be justified by the Governor in Council.

The IAA includes provisions to address concerns about transparency and rigour. In particular, authorities are now required to post on the Canadian Impact Assessment Registry Internet site a notice of their intent to determine whether a project is likely to cause significant adverse environmental effects and invite the public to provide comments (subsection 86(1)). There is a minimum 30-day interval between this notice of intent and the final notice setting out the determination on whether the project is likely to cause significant adverse environmental effects (subsection 86(2)). In addition, authorities must consider a list of factors when making a determination that include: the effects of a project on Indigenous rights; mitigation measures that address significant adverse environmental effects; community and Indigenous knowledge; and, comments from the public (section 84).

Recognizing that undertakings with limited potential for significant adverse environmental effects are subject to these requirements, subsection 88(1) of the IAA authorizes the Minister to set out a class of projects if, in the Minister’s opinion, the carrying out of a project will cause only insignificant adverse environmental effects. In respect of a project that is part of a class of projects set out by the Minister under subsection 88(1), an authority may carry out the project as they are not required to determine whether a project is likely to cause significant adverse environmental effects under sections 82 and 83, post a public notice or provide a comment period.

We Want Your Views

This Consultation Paper is seeking input on the proposed classes of projects that would be set out in the Ministerial Order issued under subsection 88(1) of the Impact Assessment Act.

Annex I includes the scope of the proposed classes of projects to be included in the Ministerial Order. In addition, many of the project classes include additional context, background, and examples of types of projects to better illustrate the scope of each project class. Interim technical guidance for projects on federal lands and outside of Canada is also being developed to provide clarity and consistency in the approach taken by federal authorities. Draft guidance will be published on the Agency’s website and comments will be solicited and considered prior to finalizing the guidance.

The feedback gathered will help inform the development of the final Ministerial Order.

This is the only opportunity to provide comments prior to the publication of the final Ministerial Order in the Canada Gazette, Part II.

The final Ministerial Order will be published in the Canada Gazette, Part II, at the coming into force of the Impact Assessment Act or as soon as possible after the coming into force of the Act. The Impact Assessment Act will come into force on a date identified by order of the Governor in Council.

What Types of Projects are Being Proposed for Inclusion in the Ministerial Order?

Federal authorities and authorities set out in schedule 4 of the Impact Assessment Act review large numbers of projects. For example, Parks Canada, Crown-Indigenous Relations and Northern Affairs Canada (CIRNA) and Canada Port Authorities review approximately 4,000 projects per year, three quarters of which present only insignificant or no potential for adverse environmental effects. Routine and low risk projects may include maintenance and repair of existing physical works, replacement of equipment within a building, or the installation of a bench in a National Park. The time needed to plan and review such projects is typically very short – often only a day or two. Holding a public comment period and making a determination under either section 82 or 83 with respect to such projects would not add value to Canadians and would cause delays to the operational continuity and service delivery of federal authorities. The ability to exclude these low-risk activities through the Ministerial Order ensures that government resources are directed at assessing proposals with greater potential for adverse environmental effects.

Federal authorities provided input to develop the classes of projects that could be included in a Ministerial Order. Many of the project classes are based on entries included in the former Exclusion List Regulations under the Canadian Environmental Assessment Act, 1992. Other classes of projects may be proposed at a later date.

The classes of projects being proposed to be included in the Ministerial Order are the most common, routine and straightforward projects that are likely to cause only insignificant adverse environmental effects.

The following criteria were considered when determining whether a class of projects should be included in the Ministerial Order:

In order for an authority to not be subject to the requirements of sections 82 and 83 in respect of a project, the project must be part of a class of projects set out in the Ministerial Order. The classes are scoped to ensure that they only capture projects that will only cause insignificant adverse environmental effects. For example, if a Fisheries Act Authorization or a Species at Risk Act permit is required in order to carry out the project, the project may involve a more significant interaction with the environment, which may result in adverse effects on fish and species at risk and therefore would not be included in the class of projects considered.

Once the Ministerial Order is in place, qualified and experienced environmental practitioners who work within the federal authorities will assess whether a proposed project on federal lands or outside Canada is part of a class of projects set out in the Order.

Next Steps – Providing Your Views

We are interested in your views on the proposed classes of project to be set out by the Minister under subsection 88(1) of the Impact Assessment Act.

Comments can be provided online at www.impactassessmentregulations.ca by August 21, 2019.

A summary of the comments received as well as a detailed outline of any changes to the regulatory proposal will be provided in the Regulatory Impact Analysis Statement that will accompany publication of the final Ministerial Order.

Annex I – Proposed Classes of Projects on Federal Lands and Outside Canada that will cause only insignificant adverse environmental effects.

The following include the proposed classes of project to be included in the Ministerial Order. They are categorized in three sections: those applicable to projects proposed by all authorities except for Parks Canada; those applicable to projects by all authorities; and, those applicable only to projects proposed to be carried out on federal lands administered by Parks Canada.

Many of the project classes include additional context, background and examples of types of projects to better illustrate the scope of each project class.

Proposed Classes of projects applicable to all authorities except for Parks Canada

The scope of the classes of projects would include the following:

1. Projects that involve the maintenance and repair of an existing physical work, including replacements of parts of an existing physical work.

2. Projects that are contained within the interior of a building.

3. Projects that involve:

The class of projects would: The class of projects would not include projects that involve:

4. Projects that involve:

The class of projects would:

The class of projects would not include projects that involve:

5. Projects that involve:

The class of projects would:

The class of projects would not include projects that involve:

Proposed Class of projects applicable to all authorities

The scope of the class of projects would include the following:

6. Geotechnical and environmental investigations undertaken to evaluate the sub-surface (i.e., the characteristics of soil and soil vapour, sediments, rock and groundwater) of a site to assess suitability for a building project; for contaminated site assessment, remediation and monitoring purposes; or for scientific research purposes.

Project-related activities may include:

The class of projects would:

The class of projects would not include projects that involve:

Proposed Classes of projects applicable only for federal lands administered by Parks Canada

The scope of the classes of projects would include the following:

7. Projects that involve the operation and maintenance of an existing physical work.

8. Projects that involve the operation, maintenance, repair and modification within the interior of an existing building.

9. Projects that involve the maintenance or modification of an existing roadway, highway, parkway and related infrastructure within federal lands administered by Parks Canada.

Project-related activities may include:

The class of projects would not include projects that involve:

10. Projects that involve the installation, maintenance or replacement of prefabricated structures within federal land administered by Parks Canada.

Examples of prefabricated structures include interpretive media (e.g., exhibits, panels, artwork), information and orientation signs, roadside directional signs, picnic tables, firepits, bear-proof garbage containers and food lockers, automated park pass machines, play structures, prefabricated vault privies, natural landscaping features or activity stations.

The prefabricated structures have been fabricated off-site and transported to an area for installation. Prefabricated vault privies are latrines that have been assembled off-site and do not require the connection of plumbing to operate.

Project-related activities may include:

The class of projects would:

The class of projects would not include projects that involve:

11. Projects that involve the construction, maintenance and replacement of primitive campsites (e.g., tent pad, bear proof food box or food cache, picnic table, fire pit) within the area of an existing primitive campground within federal land administered by Parks Canada.

The federal lands administered by Parks Canada are vast and some remote locations can only be accessed by travelling for days with primitive campsites being the only camping options. All of the units are considered to be low impact, temporary and moveable structures.

Project-related activities may include:

The class of projects would not include projects that involve:

12. Projects that involve the construction, installation, maintenance and replacement of diversified accommodations including new tent pads at existing campgrounds within federal land administered by Parks Canada.

In addition to traditional camping, diversified accommodations are offered as an alternative offer in addition to traditional camping within the boundaries of existing campgrounds on existing campsites. All of the units are low impact, temporary and moveable structures. Examples of diversified accommodation are oTENTiks, Ôasis, yurts, tiny homes, suspended tents/accommodation units and two-person accommodation units (e.g., micro cabins and tents).

Project-related activities may include:

The class of projects would not include projects that involve:

13. Projects that involve the operation and routine maintenance and repair of existing aboveground and underground electrical transmission lines and related infrastructure (e.g., poles, crossarms, anchors, conductors, ground rods, insulators) within Banff National Park.

Project-related activities may include:

The class of projects would not include projects that involve:

14. Projects that involve the maintenance and modification of existing land-based trails within federal land administered by Parks Canada.

This would apply to trails outside the Right of Way of an existing road. A trail is a built or natural linear infrastructure, or a suggested route with no infrastructure, which is used for recreational purposes (e.g., pedestrian, horse, cycling, multi-use). Trails also allow Parks Canada staff to access areas otherwise not accessible to perform specific tasks. Trails differ from roads in that trails are designed and built primarily for recreational use or modes of transportation such as bicycle or horseback and not for vehicle use. Trail infrastructure includes the trail itself, the trail structures (e.g., bridge, viewing platform, stairs, bridge, culvert, lighting system), and trail signage. There are a variety of trail surfaces including native material, crushed rock, mineral soil, concrete, asphalt, and chip-seal coat. Trails may require maintenance and modification to meet sustainable trail standards, correct poor design, ensure user safety and improve overall visitor experience.

Project-related activities may include:

The class of projects would not include projects that involve:

15. Projects that involve the removal, replacement and upgrade of an existing petroleum storage tank system and its base within federal land administered by Parks Canada.

Project-related activities may include:

The class of projects would not include projects that involve:

16. Projects within federal land administered by Parks Canada that involve the:

Project-related activities may include:

The class of projects would not include projects that involve:

17. Projects that involve the construction, installation, operation, maintenance and repair of existing or new in water structures, shore stabilization works, marine railways, boat lifts, aerial telecommunication or electrical power lines, submarine cables or utility pipelines in or across a historic canal as defined in the Historic Canals Regulations.

Project-related activities may include:

The class of projects would not include projects that involve:

18. Routine projects at facilities on federal lands administered by Parks Canada that are located in areas zoned for Outdoor Recreation or Park Services and where direct access by motorized vehicle is permitted.

Facilities may include visitor centers, park administration offices, washroom facilities (e.g., dry and flush toilets, showers), workshops, staff accommodations, storage sheds, cook shelters, kiosks, and campground theatres. Associated physical works may include fences, septic fields, generators, as well as underground and aboveground service lines for water, sewage, storm water, natural gas, power and communication.

Project-related activities may include:

The class of projects would not include projects that involve:

19. Routine projects in communities located in National Parks including the construction, modification, operation, maintenance, decommissioning and abandonment of buildings, service lines, and recreational grounds.

National Park Communities include Jasper in Jasper National Park, Field in Yoho National Park, Lake Louise and Banff in Banff National Park, Wasagaming in Riding Mountain National Park, Waskesiu in Prince Albert National Park and Waterton in Waterton Lakes National Park.

Project-related activities may include:

The class of projects would not include projects that involve:

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