Background note – Recent regulations made under the Impact Assessment Act

The Physical Activities Regulations and the Information and Management of Time Limits Regulations were published in the Canada Gazette, Part II, on August 21, 2019 and came into force at the same time as the Impact Assessment Act (IAA) on August 28, 2019.

In February 2018, the Government published the Consultation Paper on Approach to Revising the Project List and the Consultation Paper on Information Requirements and Time Management Regulations. The Government considered the comments received during that consultation period and modified the approaches to the proposed regulations, in consideration of the comments received.

On May 1, 2019, the Discussion Paper on the Project List and the Discussion Paper on the Information Requirements and Time Management Regulatory Proposal were released for a 30-day public consultation. These discussion papers included regulatory proposals and stood in place of publishing draft regulations in Canada Gazette, Part I.

Physical Activities Regulations (GiC regulation)

Under the IAA, impact assessments are carried out on “designated projects.” These designated projects can either be designated by the Physical Activities Regulations (the Project List), or they can be designated by the Minister of Environment and Climate Change under s. 9 of the IAA. A project that matches a description on the Project List would be a designated project, and will be required to enter into the planning phase, where a determination would be made on whether or not it requires a full impact assessment.

The government’s objective in creating the Project List under the IAA was to focus on major projects with the greatest potential for adverse environmental effects in areas of federal jurisdiction and to provide clarity and certainty as to which projects are subject to the IAA.

Stakeholder and Indigenous Views on the Project List

Industry stakeholders were generally supportive of the approach to focus on projects with the greatest potential for adverse effects and on providing clarity when the IAA applies. Most recommended that projects already regulated by provinces or for which standard mitigations were already routinely used be excluded from the Project List. Some industry sectors, in particular, oil and gas and mining sectors, questioned the consistency of the application of the approach across project types, and perceived their industry as over-represented on the Project List.

Indigenous governments and communities expressed disappointment and felt that the proposed Project List did not sufficiently address the changes they had suggested.

Environmental groups expressed disappointment with the proposed Project List and viewed it as too narrow and missing many project types with potential environmental effects. In the opinion of these groups, the approach should have considered a wider range of effects including effects on Indigenous communities and rights, and terrestrial species at risk.

Information and Management of Time Limits Regulations (Ministerial regulation)

The Information and Management of Time Limits Regulations enable the new impact assessment system to function and enhance clarity, transparency and predictability in the process, by setting out:

• Information that proponents must provide during the planning phase in their initial and detailed Project Descriptions;
• Criteria under which legislated time limits could be suspended:
  • If the proponent requests that the timeline be suspended, for any activity, until such time as the activity is completed;
  • For the proponent to provide information related to a design change, or change in construction or operation plans by the proponent that could change the potential impacts of the project;
  • In the event of non-payment by the proponent of recoverable costs, until such time as the payment is received;
• Guidelines and plans the Agency must deliver by the end of the planning phase to guide the impact assessment;
• Format requirements for proponent information;
• A requirement that participant funding be available for all designated projects; and,
• The time limit for the Minister to respond to a request that a regional or strategic assessment be conducted.

Stakeholder and Indigenous Views on the Information and Management of Time Limits Regulations

Overall, there was agreement that information required in the initial and detailed Project Description should support the objectives of the planning phase, and should align with what can be reasonably expected from proponents at each stage. However, there were differing views about what information requirements should be included in the initial as compared to the detailed Project Description, and about the level of detail required at each stage.

Stakeholders generally expressed support for the approach to suspend timelines only in accordance with criteria set out in regulation. However, the Agency also received feedback from Indigenous peoples on the proposed proponent-driven approach to the suspension of timelines, including suggestions that it should also be possible for the Agency to suspend timelines for unanticipated information needs and reasons identified by potentially affected Indigenous groups.

There was strong support across stakeholder groups for prescribing in regulations the documents that the Agency will be required to deliver at the end of early planning. We heard that requirements and expectations need to be clear from the outset – including an understanding of the information that is required to complete the assessment, what studies are needed, who needs to be consulted, and what permits might eventually be needed.