Operational Guide: Designating a Project under the Impact Assessment Act

Revised May 19, 2022

Purpose

This document describes the process under the Impact Assessment Act (the IAA) for considering whether to designate a project that is not identified in the Physical Activities Regulations (also known as the Project List), and the information required to initiate a designation request.^{Footnote 1}

Authority under the Impact Assessment Act

Project List

The Project List describes “designated projects” for which a federal impact assessment may add value, over and above other federal regulatory oversight mechanisms (e.g., authorizations, licences and permits). Project types included on the Project List are those that are 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. Examples of designated projects on the Project List include certain power generating facilities, marine terminals, and mining projects.

Designating a project not on the Project List

The IAA also provides 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. The Minister may exercise this authority if 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}

This discretionary authority enables the Minister to consider exceptional circumstances such as where a project is proposed in an environmentally sensitive location or there is a new or unique type of project that was not contemplated when the Project List was developed.

Under subsection 9(1) of the IAA, the Minister may, upon request or on their own initiative, designate a project that is not on the Project List.

Designation requests may come from:

• the public
• an Indigenous community
• a non-governmental organization
• a federal authority
• the Agency
• another jurisdiction
• the project proponent

Upon receiving a designation request for which the Minister is not prohibited from designating under the IAA, the Minister will issue a response with reasons within 90 days after the day on which a complete request is received.^{Footnote 3}

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 IAA.

Prohibitions

Subsection 9(7) of the IAA 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, in whole or in part.

Prerequisite for initiating a designation request

Before the Agency initiates its review of the request to designate a project, the Agency must first review the information received to evaluate whether or not the physical activity is described on the Project List. The evaluation may include seeking information from the proponent and federal authorities, as appropriate. If the project is described on the Project List, it would already be a designated project and subject to the requirements of the IAA. Therefore, section 9 of the IAA could not apply.

Following a review of the information received, if it is confirmed that the project is described on the Project List, the Agency will inform the requester in writing. If the project is not on the Project List, the Agency will then consider whether the request for designation is complete.

Process for designation requests

The requester submits information to the Minister

All designation requests must be made in relation to a specific proposed project for which a sufficient level of detail is available to understand:

• who the proponent is
• what the project is
• when construction and operations would occur
• what the potential adverse effects within federal jurisdiction are and how they could occur

The Agency would not consider designation requests for a plan, policy, or hypothetical activity.

The Annex below sets out instructions for preparing a designation request, including necessary information. Information provided by any party is considered to be on the public record and may be posted to the Canadian Impact Assessment Registry Internet site (the Registry).^{Footnote 4}

A request to designate a project must be sent to the Minister at ministre-minister@ec.gc.ca, with a copy also provided to the Agency at information@iaac-aeic.gc.ca.

The Agency considers if the information is sufficient

Following receipt of a request to designate a project, and confirmation that the project is not described on the Project List, the Agency will acknowledge receipt of the request. The Agency will take up to 10 calendar days^{Footnote 5} to consider whether sufficient information has been provided to commence the designation request process. If necessary, during this review, the Agency will contact the requester for additional information. The Agency may advise the requester on sources of information available to support the request. For example, supporting information could be found in a provincial or territorial assessment document.

If the information is sufficient, the designation request process begins

Once the Agency determines that sufficient information has been provided to commence the designation request process, it will notify the requester of the determination and the deadline for the 90-day legislated time limit for the Minister’s response. The Agency will also notify the proponent of the designation request.

The Agency will review the information received to evaluate if either limitation under subsection 9(7) of the IAA (i.e., 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, in whole or in part) apply to the project. In considering whether the project has substantially begun, the Agency will focus on its material progress and consider factors such as permanence, extent of substantive landscape alteration, and duration. If it is determined that either limitation applies, the requester will be advised that the Minister must not make the designation.

During the 90-day legislated time limit, the proponent can request a suspension of the time limit in accordance with subsection 9(5) of the IAA and the Information and Management of Time Limits Regulations for a specific activity related to the designation request (e.g., to provide the Agency with information). A request for a time limit suspension must be sent to the Minister at ministre-minister@ec.gc.ca, with a copy also provided to the Agency.

The Agency prepares a recommendation for the Minister

The Agency will prepare advice and recommendations for the Minister. To inform the recommendation, the Agency will 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. The various types of effects within federal jurisdiction as defined in the IAA are listed in the Annex at the end of this guide.

In addition, the recommendation may 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 6}

To inform the recommendation, the Agency may seek information or further input from the following:

• the proponent
• federal departments and provinces
• other jurisdictions
• potentially affected Indigenous groups (depending on the project-specific circumstances)
• the requester
• any other person or entity^{Footnote 7}

The Agency will not undertake a formal public 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 potential adverse effects would be localized to previously developed lands;
• the project contributes to existing cumulative effects within federal jurisdiction;
• 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
• the overall context of whether the project is of an exceptional nature.

In providing advice to the Minister, the Agency will consider whether concerns raised in the designation request are to be considered in any other environmental assessment, regulatory review processes, and opportunities for consultation applicable to the project.

The Minister responds to the designation request

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 Registry.

If the Minister designates the project, a Ministerial Order will be posted on the Registry. If designated, the project would be subject to the requirements of the IAA, including those related to the submission of an initial project description by the proponent, and prohibitions under sections 7^{Footnote 8} and 8^{Footnote 9} of the IAA.

Repeat requests

Where a project has already been the subject of a designation request and the Minister has provided a negative response, correspondence containing a new designation request for the same proposed project will be considered where the Minister is not precluded from designating the project under subsection 9(7) and the correspondence demonstrates a new basis for consideration.

For example, a new basis for consideration may consist of important new information regarding potential adverse effects of the project within federal jurisdiction or adverse direct or incidental effects, or a material change in circumstances, such as important project design changes.

Disclaimer

This document is for information purposes only. It is not intended to be binding on the Agency or the Minister. It is not a substitute for the IAA or its regulations. In the event of an inconsistency between this document and the IAA or its regulations, the IAA or its regulations, as the case may be, would prevail.

Annex: Necessary information for a designation request

To ensure that the designation request process can commence and proceed efficiently, necessary information in a written request includes:

• the requester’s contact details, including full name, address, email address, and telephone number;
• a statement clearly requesting the Minister to designate a project under subsection 9(1) of the IAA;
• 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;
  • timeline for when the project is expected to commence construction and operations;
  • descriptive information about the project, including all project components and activities, to assist the Agency in assessing:
    1. whether it is a type of activity described on the Project List, and near any threshold set therein;
    2. whether the project is near or on federal lands or federally designated areas;
    3. whether the project involves new technology or a new type of activity not included in the Project List;
• a description of any potential review of the project by a provincial or territorial government: and
  • information as to whether the project is under regulatory review (i.e., any formal application is in process); or
  • information about when the submission for regulatory review is to occur;
• a description of any potential adverse effects that relate to areas within federal jurisdiction defined under the IAA and public concerns related to those effects. Effects that fall within 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;
• a description of the potential adverse effects that are directly related or incidental to a federal authority that is either:
  • making a decision that would permit the carrying out, in whole or in part, of the project; or
  • providing financial assistance for the purpose of enabling the project to be carried out, in whole or in part;
• a description of how the project would cause the potential adverse effects within federal jurisdiction or adverse direct or incidental effects (e.g., pathway of effects, such as “in-water works located in fish-bearing waterbodies could lead to adverse effects on fish and fish habitat”);
• a description of the potential adverse impacts on the section 35 rights of the Indigenous peoples of Canada;
• a description about how the requester became aware of the project (e.g., specify the newspaper article, public advertisement, public event, time and location of observation, etc.); and
• links to any relevant documentation, to the extent that this information is available.

The Agency acknowledges that, in certain circumstances, a project-specific context may not allow for the availability of all the information noted above.

For further information or guidance on the designation request process and how to submit a request, please contact the Agency by email at information@iaac-aeic.gc.ca.