Memorandum to President – Project decisions during caretaker convention

PROTECTED B
P0-000063

Memorandum to President
Potential Project Process and Decision Steps under the Canadian Environmental Assessment Act, 2012 and the Impact Assessment Act during the 2019 Federal Election

(For Decision)

Purpose

To inform you of the potential public consultation and decision activities under the Canadian Environmental Assessment Act, 2012 (CEAA 2012), and the Impact Assessment Act (IAA) that may occur prior to and during the 2019 federal election, and seek your concurrence with the Canadian Environmental Assessment Agency's proposed path forward.

Summary

• The next Federal Election is set for the fall of 2019. The Government must exercise restraint and scrutiny to its activities during both the "pre-writ" and Caretaker Convention periods (the periods). Federal environmental assessment processes under CEAA 2012 and those under the IAA will occur during the periods.
• The Agency is proposing to make interim policy and guidance documents publicly available and continue engaging with key stakeholders, Indigenous groups, and provinces and territories, to ensure readiness for implementation of the IAA upon coming into force.
• Certain projects may require ministerial decisions and/or public consultation activities, in accordance with CEAA 2012 or the IAA, during the periods. These projects are summarized in Annex I.

Redacted text

• The Joint Review Panel assessing the Frontier Oilsands Mine Project in Alberta will submit its report to the Minister of Environment and Climate Change on/or before July 25, 2019. The Joint Review Panel assessing the Milton Logistics Hub in Ontario completed its public hearings on July 17, 2019.
• The Agency has proposed a path forward for projects of interest to manage potential public consultation activities and ministerial decisions currently forecasted during the periods. The Agency has already provided the necessary information to the Privy Council Office (PCO) in order to advertise these consultations.
• The Agency has briefed the Minister of Environment and Climate Change's Office (MINO) and PCO on the proposed approach and projects of interest. The policy engagement activities have not been shared with PCO or MINO.
• The Agency will keep you updated, as appropriate, leading up to and during the periods on the timing of potential activities and decisions.

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 applies once the writ of elections has been dropped until the new Cabinet has been sworn in. PCO is considering the period after the House rises for the summer until the writ is dropped (i.e., July and August) as the "pre-writ" period. Although the Caretaker Convention does not formally apply during the "pre-writ" period, heightened scrutiny is still expected for government activities and the use of public resources.

Under CEAA 2012, legislated timelines apply to certain process and decision points within a federal environmental assessment, while other points are not legislated as to when they must occur. The IAA may also be in force during the periods, with some projects beginning the Planning Phase. The types of process or decision points that may require an exercise of restraint during the periods under CEAA 2012 and the IAA include:

• decisions by the Minister on whether to designate physical activities not described in the Regulations Designating Physical Activities (CEAA 2012);
• decisions by the Minister on whether to refer a designated project to an environmental assessment by a review panel (CEAA 2012);
• decisions by the Minister on the likelihood of whether a designated project will cause significant adverse environmental effects (CEAA 2012);
• issuance of a Decision Statement by the Minister on whether a designated project can proceed subject to enforceable conditions (CEAA 2012); and
• public engagement and Indigenous consultation activities by the Agency (CEAA 2012 and the IAA).

The Agency assessed the geographic scope (national or regional) and level (high, moderate or low) of public interest associated with designated projects that may require public consultation or decision points during the periods.

The Agency will work towards maximizing the number of decisions it seeks from the Minister prior to the periods. Most of the public consultation activities or decision points anticipated are dependent on the submission of required information by proponents to allow the environmental assessments to continue.

To prepare for the coming into force of the IAA, the Agency has been actively engaging with key stakeholders, Indigenous groups and other jurisdictions on the proposed impact assessment framework to increase awareness and to support the development of policy and guidance documents. During the periods, the Agency is proposing that ongoing engagement with key Indigenous groups, stakeholders and the public continue, including making public key policy and guidance documents that support implementation of the IAA. The Agency is also proposing to continue engaging with provincial and territorial counterparts to further the conversation on opportunities for cooperation and harmonization of impact assessment processes, and with certain Indigenous groups, such as modern treaty partners. A list of anticipated policy-related activities can be found in Annex I.

Projects of Interest

Goliath Gold Project

Treasury Metals Inc. is proposing an open-pit and underground gold mine, located 20 kilometres east of the City of Dryden, Ontario. The Project has generated a high level of regional interest from the public, Indigenous groups and media.

The draft Environmental Assessment Report was recently posted for a 30-day public comment period through to July 12, 2019.

Redacted text

Offshore Exploratory Drilling Projects

Three offshore exploratory drilling projects may require public consultation activities on draft

Environmental Assessment Reports during the fall 2019:

• CNOOC International Offshore Flemish Pass Drilling Project located in the Flemish Pass Basin, over 400 kilometres east of St. John's, Newfoundland and Labrador in the Atlantic Ocean;
• Husky Energy Exploration Drilling Project located approximately 350 kilometres east of St. John's, Newfoundland and Labrador in the Atlantic Ocean; and
• Newfoundland Orphan Basin Exploration Drilling Project located 343 to 496 kilometres northeast of St. John's, Newfoundland and Labrador in the Atlantic Ocean.

All three projects have generated a moderate level of regional public interest in Newfoundland and Labrador. The Agency has requested information from all three proponents that it requires to continue the environmental assessments. Should any of the proponents submit the required information for their respective projects, the Agency may complete the technical review and prepare the associated draft Environmental Assessment Reports. The Agency is forecasting that the 30-day public comment period on draft Environmental Assessment Reports could occur in September 2019, which it proposes to carry out. However, the Agency would then need to consider any comments received and finalize the reports.

Redacted text

Regional Environmental Assessment — Offshore Newfoundland

The Regional Assessment focuses on the effects of existing and anticipated offshore oil and gas exploratory drilling in the offshore area east of Newfoundland and Labrador. The Regional Assessment aims to improve the efficiency of the environmental assessment process as it applies to oil and gas exploration drilling, while at the same time ensuring the highest standards of environmental protection continue to be applied and maintained. The assessment will build upon the experience and knowledge gained in assessing previous projects, reduce duplication in processes and information, and result in more efficient project reviews for exploration projects.

The Regional Assessment Committee is conducting the Regional Environmental Assessment and is currently meeting with Indigenous groups and the community, and plans to continue to do so through the periods, until October 2019. In November 2019, the Regional Assessment Committee plans to release its draft Regional Assessment Report for public review.

Redacted text

Referral to a Review Panel Time Limit

Two projects are likely to commence an environmental assessment under CEAA 2012 before the coming into force of the IAA. The 60-day time limit for the Minister to exercise the discretionary authority to refer them to a review panel will occur during the periods. Moreover, these determinations are not posted publicly.

Redacted text

Designation Requests under Subsection 14(2) of CEAA 2012

The Agency is awaiting required information to complete its analysis and recommendations for seven designation requests under CEAA 2012. Should the IAA come into force before the Agency receives this information, which is likely, the designation requests would be terminated. The Agency would subsequently consider them as designation requests under section 9 of the IAA and continue with its preparation of advice to the Minister accordingly. The timing of ministerial decisions would be dependent on the receipt of required information from proponents, but are likely to fall within the periods.

Redacted text

Public Consultation Activities

Based on current timelines, several projects (approximately 39) may require public consultation activities during the periods. However, these projects are all dependent on the receipt of required information to continue the environmental assessments. Given that these project activities would not require any ministerial decisions and are low profile, the Agency would propose to carry them out as normal.

Review Panels

Review Panels are independent of the government and are each mandated by the Minister to manage their own review processes, including holding public hearings as each Review Panel deems appropriate. It is possible that, during the Caretaker Period, some Review Panels may consult the public seeking review participants' views on issues relevant to the environmental assessment. This would be considered business as usual. Review Panel activities anticipated over the writ period include:

• Frontier Oilsands Mine:
  The Joint Review Panel assessing the Frontier Oilsands Mine Project in Alberta will submit its report to the Minister on/or before July 25, 2019.
  Redacted text
• Milton Logistics Hub:
  The Joint Review Panel assessing the Milton Logistics Hub in Ontario completed its public hearings on July 17, 2019.
• Roberts Bank Terminal 2:
  The Review Panel assessing the Roberts Bank Terminal 2 Project completed its public hearings on June 24, 2019, and is now preparing its report, expected in late 2019 or early 2020.
• Grassy Mountain Coal:
  The Review Panel assessing the Grassy Mountain Coal Project is analysing information Impact statement information provided by the proponent and others. Once the Review Panel determines the information is complete, it will schedule public hearings, likely late 2019 or early 2020.

Policy Activities of Interest

Publications Posted for Public Comment

During the pre-writ period, the Agency is preparing to make available to the public key policy and guidance documents, including guidance on gender-based analysis and the consideration of sustainability under the IAA. These documents provide additional context and detail that support implementation of the IAA. In addition, the Agency will make available the proposed Canada-B.C. Cooperation Agreement for Impact Assessment and seek public comment, including targeted Indigenous and stakeholder engagement.

International Negotiations

The Agency, in support of Global Affairs Canada, is anticipated to participate in a substantive session of the Intergovernmental Conference on Biodiversity beyond National Jurisdiction, scheduled to take place in New York City on August 19-20, 2019. The objective of the session is to review and analyse proposed text that will inform a new international legally binding instrument under the United Nations Convention on the Law of the Sea.

Workshops with Indigenous Communities

The Agency is proposing to host workshops with Indigenous communities to discuss policy approaches under the IAA. These workshops are being scheduled to capture Indigenous communities that were unable to participate in workshop sessions held across the country over the winter and spring of 2019.

Redacted text

Next Steps

• The Agency will work to accelerate seeking ministerial decisions so they can occur prior to the periods, to the extent possible.
• The Agency will keep you apprised of the timing, as it becomes more certain, of potential public consultation activities and decisions points that occur during the periods.
• The Agency will work with federal partners to share the details on its approach and will keep MIND and PCO apprised of the timing on potential decisions.
• The Agency will track and bring to your attention any new engagement activities anticipated to take place over the periods.

(Original signed on July 19, 2019 by)
__________________________________
Christine Loth-Bown
Vice-President
External Relations and Strategic Policy

(Original signed on July 19, 2019 by)
__________________________________
Terence Hubbard
Vice-President
Operations

(Original signed on July 22, 2019 by)
__________________________________
Ron Hallman

Attachments

• Annex I — Caretaker convention and writ period decisions, consultations and policy activities

Drafting Officer's Name: Terry Hubbard, Vice-President
Directorate/ Branch: Operations
Phone No: 613-948-2665
Date Drafted: May 27, 2019