Making Decisions on Impact Assessments

Context

The purpose of this document is to provide the public with background information on how decisions are made for federal impact assessments in Canada. It explains how the information gathered during the impact assessment process informs these decisions. This document is not intended to provide direction to proponents or decision-makers.

Overview

• Under the Impact Assessment Act (the Act), a decision-maker (either the Minister of Environment and Climate Change or Cabinet) must determine whether the adverse effects, and the adverse direct or incidental effects^{Footnote 1}, of a designated project are in the public interest. Examples of designated projects include large mines, long pipelines, or major ports.
• Making this determination requires the decision-maker to take into account the effects, both positive and adverse, of the project. To do so, the decision-maker's determination must be based on the project's Impact Assessment Report, and a consideration of five public interest factors described in the Act (listed below).
• The Impact Assessment Report is prepared by either the Impact Assessment Agency of Canada, a review panel, or another jurisdiction. The report is based on the information gathered through the impact assessment process and sets out the effects that are likely to be caused by the project, such as changes to the environment or to the health, social, or economic conditions.
• The decision-maker will also receive additional documents that support consideration of public interest factors: the Crown Consultation and Accommodation Report on consultations with Indigenous peoples, and recommended conditions that the project's proponent would have to adhere to if the project is approved.
• Once the public interest determination is made, the Minister of Environment and Climate Change must issue a Decision Statement that sets out the determination, any conditions that the project's proponent must meet, and a period of time within which work on the project must begin, in order for the Decision Statement to remain valid.

Public Interest Factors

In making the public interest determination, the decision-maker must consider the public interest factors listed in the Act. The factors are considered together, based on the information in the Impact Assessment Report, to help the decision-maker determine whether the adverse effects within federal jurisdiction or direct or incidental effects of a designated project are in the public interest. The factors are:

1. The extent to which the project contributes to sustainability.
2. The extent to which the adverse effects within federal jurisdiction and the adverse direct or incidental effects that are indicated in the impact assessment report in respect of the designated project are significant.
3. The implementation of the measures that the decision-maker considers appropriate for mitigating the adverse effects.
4. The impact that the project may have on any Indigenous group and any adverse impact that the project may have on the rights of Indigenous peoples.
5. The extent to which the effects of the project hinder or contribute to the Government of Canada's ability to meet its environmental obligations and its climate change commitments.

Indigenous Consultation

• The public interest determination is a form of Crown conduct that may give rise to the constitutional duty to consult and, if necessary, accommodate with respect to potential adverse impacts on the section 35 rights of Indigenous peoples. The Government of Canada is committed to fulfilling these obligations in a manner that advances reconciliation and recognizes and respects the rights of Indigenous peoples, including aiming to secure their free, prior and informed consent for actions that impact them and their rights.
• The Government of Canada will consult with Indigenous peoples when considering decisions about projects that may impact their rights and make accommodations where appropriate. Prior to making the public interest determination, the decision-maker is responsible to ensure that the Crown's duty to consult and accommodate has been met.
• The Agency is responsible for planning and implementing a meaningful consultation process with potentially affected Indigenous peoples. As part of this process, the Agency will develop a Crown Consultation and Accommodation Report that describes the consultation process, potential impacts of the designated project on the rights of Indigenous peoples, and proposed accommodation measures. This will assist the decision-maker in ensuring the duty to consult and accommodate has been fulfilled.

Decision Making

• The Decision Statement informs the project proponent of the public interest determination made by the Minister or Cabinet, and is posted online.
• The Decision Statement includes the reasons for the decision, which explain how the five public interest factors were considered.
• If the Minister is the decision-maker, the Decision Statement must be issued no later than 30 days after the Impact Assessment Report is issued. If Cabinet is the decision-maker, the timeline is 90 days.
• The Decision Statement is valid for a set time period (described within the Decision Statement itself). If the proponent does not begin work within that time period, the Decision Statement expires.
• The proponent must comply with any conditions established within the Decision Statement. For example, the proponent will have to implement mitigation measures to eliminate, reduce, control or offset the adverse effects of a project, as well as implement a follow-up program. Conditions will include any mitigation measures that the Minister or Cabinet took into account when making their public interest determination, but may exclude measures that the Minister is satisfied will be addressed by another person or jurisdiction.