Operational Guide: Designating a Project under the Impact Assessment Act
This document is for information purposes only. It is not a substitute for the Impact Assessment Act or its regulations. In the event of an inconsistency between this document and the Impact Assessment Act or its regulations, the Impact Assessment Act or its regulations, as the case may be, would prevail.
This document describes the process for considering whether to designate a project not identified in the Physical Activities Regulations, also known as the Project List, under the Impact Assessment Act (the Act).footnote 1
Authority under the Impact Assessment Act
There are two ways of being identified as a ‘designated project’ under the Act. The first is being identified in the Project List, and the second is through Ministerial designation. The Project List includes project types for which a federal impact assessment would add incremental value, over and above other federal regulatory oversight mechanisms (e.g., authorizations, licences and permits). Project types included on the Project List were determined to have the greatest potential for adverse and complex effects in areas of federal jurisdiction related to the environment and are called “designated projects”.
The Act also includes a discretionary authority that enables the Minister of Environment and Climate Change (the Minister) to designate a proposed project that is not on the Project List, if by virtue of its characteristics (e.g., the project is a new or unique type of project) or location (e.g., the project is proposed in an environmentally or otherwise sensitive location) the carrying out of the project may cause adverse effects within federal jurisdiction or adverse direct or incidental effects, or public concerns related to those effects warrant the designation.footnote 2
Under subsection 9(1) of the Act, the Minister may, upon request or on his or her own initiative, designate a project that is not on the Project List. Upon receiving a request to designate a project that is not on the Project List, the Minister will issue a response with reasons within 90 days after the day on which the request is received.footnote 3
Subsection 9(7) of the Act prohibits designation of a project if the project has substantially begun or a federal authority has made a decision under another Act of Parliament that permits the project to be carried out.
Process for Designation Requests
The Impact Assessment Agency of Canada (the Agency) advises and assists the Minister on the use of the power to designate a project under the Act. If designated, the proponent of the project will be required to submit an initial project description, thereby triggering the commencement of the Planning Phase.
A designation request may come from the public, an Indigenous community, a non-governmental organization, a federal authority, the Agency, another jurisdiction, or the project proponent.
The Annex sets out instructions on preparing a designation request. Information provided by any party would be considered to be on the public record and may be posted to the Canadian Impact Assessment Registry Internet site.footnote 4
Following receipt of a request to designate a project, the Agency will acknowledge receipt of the request and review the request to determine the completeness of the information provided. If necessary, the Agency will contact the requester for additional information. The Agency will also notify the proponent that a designation request was received.
Upon receiving a request, the Agency will prepare a recommendation for the Minister that will be informed by science, Indigenous and community knowledge, input from the proponent, and consultations with other jurisdictions, as applicable. The recommendation would consider whether the carrying out of the project may cause adverse effects within federal jurisdiction or adverse direct or incidental effects, and public concerns related to such effects. In addition, the recommendation would consider the potential impacts of the project on the rights of the Indigenous peoples of Canada – including Indigenous women – recognized and affirmed by section 35 of the Constitution Act, 1982 (section 35 rights) as well as any relevant regional or strategic assessments.footnote 5 To inform the recommendation, the Agency may seek information from the proponent, solicit advice from federal departments, consult with provinces, other jurisdictions and potentially affected Indigenous groups, and seek further input from the requester and any other person or entity.footnote 6 In seeking information, the Agency will not undertake a formal comment period.
In developing a recommendation for the Minister, the Agency may also take into account a number of relevant factors including whether or not:
- the project or its expansion(s) is near a threshold set in the Project List;
- standard design features and mitigation would address the anticipated adverse effects;
- the project involves new technology or is a new type of activity;
- the potential adverse effects can be adequately managed through other existing legislative or regulatory mechanisms;
- an assessment of environmental effects would be carried out by another jurisdiction;
- the project may cause adverse environmental effects because of its location and environmental setting, or because of a change in use on previously developed lands;
- there are proposals for multiple activities within the same region that may be a source of cumulative effects;
- there are potential effects across international borders;
- the potential greenhouse gas emissions associated with the project may hinder the Government of Canada’s ability to meet its commitments in respect of climate change, including in the context of Canada’s 2030 emissions targets and forecasts; and
- a response to a prior request to designate the project has been rendered, including a response under the Canadian Environmental Assessment Act, 2012.
Once the Minister makes a determination, the Minister will provide a response, including reasons for the determination, to the requester and will notify the proponent. The Minister’s response will be posted on the online Canadian Impact Assessment Registry.
If the Minister decides to designate the project, a ministerial order will be posted on the online Canadian Impact Assessment Registry. Once the project is designated, the prohibition in section 7 of the Act will apply to the proponent of the designated project.footnote 7 Similarly, the prohibition in section 8 of the Act will apply to federal authorities.footnote 8
Annex: Preparing a Designation Request
To ensure that the designation request process proceeds efficiently, the Agency asks that your written request include:
- Your contact details, including full name, address, email address and telephone number;
- A statement in which you explain that you are making a request for the Minister to designate a project;
- A description of the project that is the subject of the request, including project name, proponent name and address (or other contact information), project location, descriptive information about the project, and links to any relevant documentation, to the extent that this information is available;
- An explanation of why you think the project should be designated, including your views on the potential adverse effects that the project may cause (see guiding questions below); and
- Details about how you became aware of the project (e.g., specify the newspaper article, public advertisement, public event, time and location of observation, etc.)
To structure your rationale as to why a project should be designated, please provide yes or no answers (if yes, please explain) to the following questions:
- Is the project near a threshold set in the Project List?
- Is the project near or in an environmentally or otherwise sensitive location?
- Does the project involve new technology or a new type of activity?
- Does the project have the potential to cause adverse effects that are of concern to you and fall within federal jurisdiction? Effects that fall with federal jurisdiction include:
- effects on fish and fish habitat;
- effects on aquatic species, as defined in subsection 2(1) of the Species at Risk Act;
- effects on migratory birds;
- changes to the environment on federal lands;
- changes to the environment that occur in a province or territory other than the one where the project is taking place;
- changes to the environment that occur outside of Canada;
- changes to the environment that could affect the Indigenous peoples of Canada;
- any change occurring to the health, social or economic conditions of the Indigenous peoples of Canada; and
- changes to components of the environment, health, social or economic matters set out in Schedule 3 of the Act.
- Does the project have the potential to cause adverse effects that are directly related or incidental to a federal authority either (i) making a decision that would permit the carrying out, in whole or in part, of the project or (ii) providing financial assistance for the purpose of enabling the project to be carried out, in whole or in part?
- Does the project have the potential to cause adverse impacts on the section 35 rights of the Indigenous peoples of Canada?
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