Memorandum to Minister – Decision making authorities during the federal election
Canadian Environmental Assessment Agency
President
160 Elgin St., 22nd floor
Ottawa ON K1A 0H3
Agence canadienne d’evaluation environnementale
Président
160, rue Elgin, ne etage
Ottawa ON K1A 0H3
PROTECTED B
MIN-251111
Memorandum to Minister
Decision Making Authorities under the Canadian Environmental Assessment Act, 2012 and the Impact Assessment Act during the 2019 Federal Election
(For Decision and Signature)
Timeline
Your decision and signature is requested by August 21, 2019 (internal deadline).
Purpose
To seek your decision on whether to authorize the President of the Canadian Environmental Assessment Agency to make certain decisions under the Canadian Environmental Assessment Act, 2012 (CEAA 2012) and under the Impact Assessment Act (not in force) (IAA) during the 2019 federal election Caretaker Convention period (Caretaker period).
Summary
- The next federal election is set for fall 2019. The Government must exercise restraint and scrutiny to its activities during the Caretaker period. Federal environmental assessment processes under CEAA 2012 will continue to occur during this period, including actions subject to legislated timelines.
- Certain projects may require ministerial decisions in accordance with CEAA 2012 during the Caretaker period. These projects are summarized in Annex 1.
- Under subsection 108(2) of CEAA 2012, you may authorize the President of the Agency to exercise any of your decision-making powers under that Act. This will continue under subsection 160(2) of the IAA, once it comes into force.
- The Agency recommends that you authorize the President of the Agency, during the Caretaker period, to make certain decisions regarding:
- designation: whether or not to require a federal environmental assessment for projects not identified by the Project List Regulations under subsection 14(2) of CEAA 2012;
- substitutions: authority to approve substitution under subsection 32(1);
- referrals to review panels: decisions on referral to a review panel under subsection 38(1) of CEAA 2012; and
- timeline extensions: decisions on extensions to time limits for assessments under subsection 27(3) of CEAA 2012.
- The Agency is also proposing that you authorize the President of the Agency to exercise these same decision-making powers under the IAA, once it comes into force.
- The recommendation is based on the following reasons:
- the recommended decision-making authorities are largely routine but required;
- to facilitate continued government business during the election period and until a Minister of Environment and Climate Change is appointed (re-appointed); and
- the currently forecasted associated projects to these decision-making authorities are considered low profile.
- Any decisions taken during this period would comply with legislative requirements and consider obligations of officials to exercise restraint during the Caretaker period.
Context
Under the Caretaker Convention, the government must act with restraint during an election, confining itself to necessary public business, either routine or urgent. The Caretaker Convention period applies once the writ of elections is issued and lasts until the swearing in of the new Cabinet.
Under CEAA 2012, legislated timelines apply to certain decision points within a federal environmental assessment, while other decision points are not subject to legislated timelines. The types of decision points that may require an exercise of restraint during the periods under CEAA 2012 include:
- decisions on whether to designate physical activities not described in the Regulations Designating Physical Activities (subsection 14(2) of CEAA 2012);
- decisions on whether to approve substitution of the federal environmental assessment process to another jurisdiction (subsection 32(1) of CEAA 2012);
- decisions on whether to exercise your discretion to refer an environmental assessment of a designated project to a review panel (subsection 38(1) of CEAA 2012);
- decisions on whether a designated project is likely to cause significant adverse environmental effects (CEAA 2012);
- decisions on whether to extend the time limit within which you must make decisions under subsection 52(1) (subsection 27(3) of CEAA 2012); and
- establishment of conditions with which the proponent of a designated project must comply as set out in a Decision Statement issued by you following an environmental assessment.
Subsection 108(2) of CEAA 2012 provides that the President of the Agency is its chief executive officer and may exercise all of your powers under CEAA 2012 as authorized by you.
Following coming into force of the IAA, there will be similar decision points within a federal impact assessment that may be required during the Caretaker period. These include:
- decisions on whether to designate physical activities not described in the Physical Activities Regulations (subsection 9(1) of the IAA);
- decisions on whether to approve substitution of the impact assessment process to another jurisdiction (subsection 31(1) of the IAA); and
- decisions on whether to exercise your discretion to refer the impact assessment of a designated project to a review panel (subsection 36(1) of the IAA).
Subsection 160(2) of the IAA provides that the President of the Agency is its chief executive officer, and may exercise all of your powers under IAA as authorized by you.
Upcoming Decision-Making Authorities of Interest
Designation Requests under Subsection 14(2) of CEAA 2012 and Subsection 9(1) of the IAA
Subsection 14(2) of CEAA 2012 provides you with the authority to designate projects not described in the Regulations Designating Physical Activities, as designated projects requiring a federal environmental assessment under CEAA 2012. Subsection 9(1) of the IAA gives you the authority to designate projects not described in the Physical Activities Regulations as designated projects.
Redacted text
Granting Substitution under Subsection 32(1) of CEAA 2012 and 31(1) of IAA
Subsection 32(1) of CEAA 2012 requires that where you believe that an environmental assessment of another jurisdiction is an appropriate substitute for the environmental assessment under CEAA 2012, you must, on receipt of a request of a province, approve the substitution. Conversely, under subsection 31(1) of IAA, you may approve the substitution on receipt of a request of a jurisdiction.
Redacted text
Referral to a Review Panel Time Limit under Subsection 38(1) of CEAA 2012
Subsection 38(1) of CEAA 2012 provides you with the authority to refer a project that is subject to an environmental assessment to a review panel, if in your opinion it is in the public interest.
Redacted text
Decision to Extend the Time-Period of the Minister's Subsection 52(1) Decision under Subsection 27(3) of CEAA 2012
Subsection 27(2) requires you to make your subsection 52(1) decision no later than 365 days following the date on which the Notice of Commencement is posted on the Registry internet site. Subsection 27(3) provides you with the power to extend this time period by a maximum of three months as necessary to cooperate with another jurisdiction.
Redacted text
Decision on Significant Adverse Environmental Effects under Section 52 of CEAA 2012
Redacted text
Recommendation
- The Agency recommends that you authorize the President of the Agency under subsection 108(2) of CEAA 2012 to make the following decisions during the Caretaker period:
- whether to designate physical activities not described in the Regulations Designating Physical Activities under subsection 14(2) of CEAA 2012;
- whether to approve substitution of the federal environmental assessment process to another jurisdiction under subsection 32(1) of CEAA 2012;
- whether to extend the time limit within which you must make decisions under subsection 52(1) (subsection 27(3) of CEAA 2012); and
- whether to refer the environmental assessment of a designated project to a review panel under subsection 38(1) of CEAA 2012.
- The Agency recommends that you also authorize the President of the Agency under subsection 160(2) of IAA to make the following decisions during the Caretaker period, should the IAA be in force:
IAA
- whether to designate physical activities not described in the Physical Activities Regulations under subsection 9(1) of IAA;
- whether to approve substitution of the impact assessment process to another jurisdiction under subsection 31(1) of IAA; and
- whether to refer a designated project to an impact assessment by a review panel under subsection 36(1) of IAA.
Next Steps
- Should you concur with the recommendation, your signature on Attachment I will serve as the official authorization of certain decision-making authorities to the President of the Agency during the period.
- Should you concur with the recommendation, the Agency will keep you appraised of any decisions made on your behalf during the Caretaker period.
(Original signed by)
__________________________________
Ron Hallman
President
c.c. Stephen Lucas
_______ I concur
_______ I do not concur
(Original signed on August 8, 2019 by)
__________________________________
Catherine McKenna
Attachments (2):
- Attachment I — Authorization of decision-making authorities under CEAA 2012 and the Impact Assessment Act
- Annex I — Summary Table of Projects with Ministerial Decision Points during the Caretaker Convention
Attachment I
Authorization of decision-making authorities under CEAA 2012 and the Impact Assessment Act
Ministre de l'Environnement et du Changement climatique
Ottawa, Canada K1A OH3
Minister of Environment and Climate Change
Ottawa, Canada K1A OH3
Authorization under the Canadian Environmental Assessment Act, 2012 and the Impact Assessment Act
I, the undersigned Minister of the Environment, pursuant to subsection 108(2) of the Canadian Environmental Assessment Act, 2012 do hereby authorize the President of the Canadian Environmental Assessment Agency to exercise my power under
- subsection 14(2) of that Act to designate physical activities as designated projects subject to an environmental assessment under the Canadian Environmental Assessment Act, 2012;
- subsection 32(1) of that Act to approve the substitution of an assessment to be carried out by another jurisdiction for an environmental assessment under the Canadian Environmental Assessment Act, 2012; and
- subsection 38(1) of that Act to exercise the discretionary authority to refer the environmental assessment of a designated project to a review panel.
Authorization under the Impact Assessment Act
I, the undersigned Minister of the Environment, pursuant to subsection 160(2) of the Impact Assessment Act, upon its coming into force, do hereby authorize the President of the Impact Assessment Agency of Canada to exercise my power under
- subsection 9(1) of that Act to designate physical activities as designated projects subject to an impact assessment under the Impact Assessment Act;
- subsection 31(1) of that Act to approve the substitution of an impact assessment to be carried out by another jurisdiction for an impact assessment under the Impact Assessment Act; and
- subsection 36(1) of that Act to exercise the discretionary authority to refer the impact assessment of a designated project to a review panel.
The above authorizations will apply from the date on which the writ is issued for the 2019 federal election until the swearing in of a new Cabinet.
__________________________________
The Honourable Catherine McKenna, P.C., M.P.
Signed at Ottawa, Ontario on August 8, 2019
Annex I
Summary Table of Projects with Ministerial Decision Points during the Caretaker Convention
Project Name |
Process Step |
Special Issues |
---|---|---|
Page 10 |
Page details
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