Policy Context: Public Interest Determination under the Impact Assessment Act

This document is for information purposes only. This document is not intended to fetter decision-makers. It is not intended to suggest that the Government can regulate matters of provincial jurisdiction. It is not a substitute for the Impact Assessment Act (IAA) or its regulations. In the event of an inconsistency between this document and the IAA or its regulations, the IAA and its regulations would prevail.

For the most up-to-date versions of the IAA and regulations, please consult the Department of Justice website.

Introduction

The purpose of this policy context document is to provide background information on the public interest determination for impact assessments. It explains how the documents produced throughout the impact assessment, taken together, will inform decisions. This document is not intended to provide direction to proponents.

Policy Statement

The public interest determination by the Minister of Environment and Climate Change (the Minister) or Governor in Council (together in this document, “the decision-makers”) is informed and supported by key documents that are produced throughout the impact assessment process. This includes the Impact Assessment Report and the Crown Consultation Report on the Duty to Consult. The Impact Assessment Report contains the analysis that informs the public interest determination, which, in turn, forms the substance of the Decision Statement.

Relevant Legislative Provisions

Under section 60 and 62 of the Impact Assessment Act (IAA), the Minister or Governor in Council (GiC) must determine if the adverse effects within federal jurisdiction, and the adverse direct or incidental effects (linked to a federal decision) that are indicated in the Impact Assessment Report are, in light of the factors referred to in section 63, and the extent to which those effects are significant, in the public interest. Section 63 requires that the public interest determination “be based on the report with respect to the impact assessment and a consideration of the following factors”:

  1. the extent to which the designated 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 mitigation measures that the Minister or the Governor in Council, as the case may be, considers appropriate;
  4. the impact that the designated project may have on any Indigenous group and any adverse impact that the designated project may have on the rights of the Indigenous peoples of Canada recognized and affirmed by section 35 of the Constitution Act, 1982; and
  5. the extent to which the effects of the designated project hinder or contribute to the Government of Canada’s ability to meet its environmental obligations and its commitments in respect of climate change.

These factors will be referred to as the “public interest factors” in this document. See the Annex for relevant legislative provisions.

Roles and Responsibilities

Under the Impact Assessment Act, impact assessments will be conducted by the Impact Assessment Agency of Canada (the Agency), a review panel or another jurisdiction undertaking the substituted assessment. Impact assessments by a review panel may be conducted jointly with another jurisdiction that also has powers, duties or functions in relation to the assessment of the environmental effects of the designated project, or may be integrated with the regulatory processes of lifecycle regulators: the Canadian Nuclear Safety Commission, the Canada Energy Regulator, the Canada-Nova Scotia Offshore Petroleum Board or the Canada–Newfoundland and Labrador Offshore Petroleum Board.

The public interest determination is based on the Impact Assessment Report. The Impact Assessment Report will be prepared by either the Agency, a review panel, or the jurisdiction undertaking the substituted assessment. This report will assess the information gathered through the impact assessment (IA) process and make findings relevant to the factors to be considered in the impact assessment of a designated project as per section 22 of the IAA. In making the public interest determination, the public interest factors listed in section 63 of the IAA and described below must also be considered. The analysis of the section 22 factors considered in the Impact Assessment Report will support the consideration of the public interest factors. Each of the section 22 factors is related to one or more of the public interest factors and the analysis included in the Impact Assessment Report will inform the consideration of the public interest factors.

In the case of integrated review panels with lifecycle regulators, the review panel’s Impact Assessment Report will also address the relevant factors to be considered in the associated legislation of the lifecycle regulator (e.g. the Canadian Energy Regulator Act or the Nuclear Safety and Control Act) in order to make regulatory decisions under the lifecycle regulator’s Act.

For impact assessments conducted by the Agency or the jurisdiction undertaking the substituted assessment, the Minister is responsible for making the public interest determination or may refer the determination to the GiC. When the public interest determination is referred to the GiC, a notice of referral and the reasons for the referral must be posted on the Registry Internet Site.

For impact assessments conducted by a review panel, including an integrated review panel with a lifecycle regulator, the GiC will always be responsible for making the public interest determination under the Impact Assessment Act.

Figure 1 provides an overview of the roles and responsibilities for the public interest determination.

Figure 1

Public Interest Factors

The decision-maker’s public interest determination must be based on the Impact Assessment Report and the five public interest factors. The Impact Assessment Report will take into account the factors listed under section 22. Given the overlap in content between the factors listed under section 22 and the public interest factors, the portions of the report addressing the section 22 factors will inform the decision-maker’s consideration of the public interest factors.

There are no thresholds or decision points for these five factors, but rather the factors will be considered together, along with the Impact Assessment Report, to inform the public interest determination.

The public interest factors that the Minister or the GiC must take into account when making the public interest determination and key considerations that the Agency or review panel may consider in the impact assessment and set out in the Impact Assessment Report for decision-makers are described below. When relevant, links to supporting guidance are also included.

1. The extent to which the designated project contributes to sustainability

Under the IAA, sustainability is defined as “the ability to protect the environment, contribute to the social and economic well-being of the people of Canada and preserve their health in a manner that benefits present and future generations”. For more information on the approach to the consideration of sustainability under the IAA, please see the Guidance: Considering the Extent to which a Project Contributes to Sustainability. In considering the extent to which the designated project contributes to sustainability, the decision-makers may consider the key findings associated with the sustainability analysis set out in the Impact Assessment Report, including findings related to the following principles:

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

The public interest determination must consider the extent to which the adverse environmental, health, social and economic effects in federal jurisdiction and the adverse direct or incidental effects indicated in the Impact Assessment Report are significant.

In considering the adverse effects, the decision-makers may consider the key findings associated with the effects. Where relevant, this may include the magnitude, the geographical extent, timing, frequency, duration and reversibility of the potential adverse effects, as well as any important contextual factors. It may be more appropriate for other effects to be described using other criteria, such as the nature of the impacts, proportionality, directionality, causation or probability.

Unlike the previous legislation (Canadian Environmental Assessment Act, 2012), there is no longer a requirement for a decision-maker to determine whether the designated project is likely to cause significant adverse environmental effects. Rather, significance will be used to characterize the extent of adversity of the effects in order to inform the public interest determination. As well, the “extent of significance” will allow the decision-makers to consider the effects holistically, taking into account a range of effects.

3. The implementation of the mitigation measures that the Minister or the Governor in Council considers appropriate

Mitigation measures are expected to eliminate, reduce, control or offset the adverse effects of a project, and could include restitution for damage caused by those effects through replacement, restoration, compensation or any other means. The Impact Assessment Report will provide a description of technically and economically feasible mitigation measures to be applied to all identified adverse effects within federal jurisdiction, and the adverse direct or incidental effects. Mitigation measures proposed by other jurisdictions, Indigenous groups or federal authorities may also be considered.

4. The impact that the designated project may have on any Indigenous group and any adverse impact that the designated project may have on the rights of the Indigenous peoples of Canada, recognized and affirmed by section 35 of the Constitution Act, 1982.

When conducting the impact assessment, the Agency or review panel, as the case may be, must take into account the impact that the designated project may have on any Indigenous group and any adverse impact that the designated project may have on the section 35 rights of any Indigenous group. The Impact Assessment Report will also describe how Indigenous knowledge provided was taken into account and used.

In considering the potential impact that a designated project may have on any Indigenous group, decision-makers will consider a range of factors that may include:

Consideration of any adverse impact that the designated project may have on the exercise of the rights of Indigenous peoples is required both by section 63 and to fulfill the Crown’s constitutional obligation to consult and, where appropriate, accommodate, with respect to these impacts. Decision-makers must consider:

Impacts on Indigenous peoples and rights may also be a consideration within the other factors included in the section 63 framework. For example, when a designated project could result in an effect on fish, the decision-maker’s consideration of the adverse effects within federal jurisdiction would also need to consider the impacts on the rights of Indigenous peoples to fish. Further guidance is available on the assessment of impacts on rights and Indigenous peoples to inform this consideration (see sections 3.3 and 3.4 of the Practitioner’s Guide).

5. The extent to which the effects of the designated project hinder or contribute to the Government of Canada’s ability to meet its environmental obligations and its commitments in respect of climate change

The positive or negative effects of designated projects may contribute to or hinder Canada’s ability to meet its environmental obligations and its climate change commitments. The Government of Canada has various environmental obligations and commitments in respect of climate change. The public interest determination will consider how the effects of a designated project would affect obligations and commitments. For more information, please see the Policy Context: Considering Environmental Obligations and Commitments in Respect of Climate Change as well as the Strategic Assessment on Climate Change developed by Environment and Climate Change Canada.

In considering this public interest factor, the decision-makers must consider:

Common Law Obligations

Prior to making the public interested determination with respect to a designated project, the Minister or the GiC must ensure that the Crown’s duty to consult and accommodate has been met. To align consultation efforts with the decision-making process under the IAA, including the consideration of subsection 63(d), the Agency will seek to integrate consultations into the impact assessment process as well as seek collaborative approaches to achieve consensus.

Documents and Information Supporting the Public Interest Determination

At the end of the Impact Assessment phase, the Minister will receive the Impact Assessment Report, the Crown Consultation Report on the Duty to Consult, and recommended conditions to support the public interest determination. Public service advice to the Minister to support the public interest determination may also be provided.

Impact Assessment Report

The Impact Assessment Report, prepared by the Agency, review panel or the jurisdiction undertaking the substituted assessment, contains information required to enable the Minister or GiC to make a public interest determination. The IAA requires that the Impact Assessment Report set out the effects that are likely to be caused by the designated project, identify which of the effects are adverse effects within federal jurisdiction and those that are adverse direct or incidental effects, and specify the extent to which those effects are significant. The report must also describe how any Indigenous knowledge that was provided was used and taken into account, and provide a summary of any comments received from the public and recommendations with respect to any mitigation measures and a follow-up program. In preparing the report, the Agency, review panel, or the jurisdiction undertaking the substituted assessment considers the information and evidence provided by the proponent, federal authorities, the public, and other jurisdictions and consultations with and information provided by Indigenous groups.

In the case of integrated review panels with lifecycle regulators, the integrated review panel’s Impact Assessment Report will also include the information, conclusions or recommendations necessary for the license, certificate, order, permit, or authorization to be issued or other decision to be made under the lifecycle regulator's legislation. This allows for the public interest determination under the Impact Assessment Act and certain regulatory decision under the lifecycle regulator’s legislation to be made at the end of the impact assessment.Footnote 1 For example, an integrated review panel’s report following an impact assessment of a pipeline that is regulated under the Canadian Energy Regulator Act would include (i) the review panel’s recommendation as to whether or not the certificate should be issued under the Canadian Energy Regulator Act for all or any part of the pipeline, taking into account whether the pipeline is and will be required by the present and future public convenience and necessity; and (ii) all the conditions that the review panel considers necessary or in the public interest to which the pipeline certificate would be subject if issued. The Impact Assessment Report would allow the GiC to make both the public interest determination under the Impact Assessment Act and its decision regarding a pipeline certificate recommendation under the Canadian Energy Regulator Act. For integrated assessments with the Canadian Nuclear Safety Commission, the impact assessment conducted by the integrated review panel is the only assessment that may be used for the purposes of issuing the applicable licenses under the Nuclear Safety and Control Act. For designated offshore petroleum projects in Atlantic Canada, the Offshore Boards and the provinces of Newfoundland and Labrador and Nova Scotia would maintain their decision-making responsibilities under their respective Accord Acts following the impact assessment process.

Conditions

If the decision-maker determines that the adverse effects within federal jurisdiction and the adverse direct or incidental effects indicated in the Impact Assessment Report are in the public interest, the Minister must issue a Decision Statement to the proponent that includes any conditions with which the proponent must comply. The conditions established by the Minister must include:

In the case of integrated review panels with lifecycle regulators, the review panel will propose and consult on potential conditions and provide these in the Impact Assessment Report. Should the project proceed, the lifecycle regulators will be responsible for verifying compliance with conditions included in its licenses, permits or approvals.

Complementary Measures

Complementary measures, which are initiatives undertaken under federal programs or under the authority of a federal Minister or department, beyond those stated in the Impact Assessment Act, may also be considered by decision-makers, as applicable. Complementary measures may be used to address issues outside of the care and control of a proponent, for cross-cutting issues requiring an integrated response, or to accommodate impacts to section 35 rights held by Indigenous peoples. Complementary measures that are undertaken by other jurisdictions (provincial, territorial, or Indigenous) and lifecycle regulators may also be considered by the decision-maker. Examples of complementary measures may include skill development and training programs, social programs, etc.

It is also possible that the proponent propose voluntary measures, other than those identified as conditions, that they may wish to undertake. This could include ways to mitigate effects that are not within federal jurisdiction.

Crown Consultation Report on the Duty to Consult

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.

Prior to making the public interest determination the decision-maker must be satisfied that, in addition to satisfying the requirements set out under the Impact Assessment Act, the Crown’s duty to consult and, as necessary, accommodate, has been fulfilled in a manner that upholds the honour of the Crown.

As Crown Consultation Lead, the Agency is responsible for planning and implementing a meaningful consultation process with potentially affected Indigenous peoples. This process will be developed with the input of potentially impacted Indigenous groups and will include collaborative approaches to the assessment of impacts to Indigenous peoples and section 35 rights. As part of this process, the Agency will maintain a record of consultation and develop a summary report towards the end of the impact assessment. The Crown Consultation Report on the Duty to Consult will describe 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 determining whether the duty to consult and accommodate has been fulfilled.

Where the Crown contemplates conduct that may adversely impact the exercise of Aboriginal and Treaty rights protected by section 35, the Crown must consult and, where appropriate, accommodate impacts to Indigenous rights.

Decision Making

When the GiC is responsible for making the public interest determination, the Minister will provide a recommendation on the public interest determination to GiC. In the case of integrated review panels with the Canada Energy Regulator or the Canadian Nuclear Safety Commission, the Minister, in consultation with the Minister of Natural Resources, will provide the recommendation to the GiC.

The Decision Statement will inform the proponent of the determination made by the Minister or the GIC, as the case may be, and will include the reasons for the decision to provide transparency on how the public interest determination was made. The consideration of the Impact Assessment Report and public interest factors will serve as the basis for the reasons for the decision. The reasons for the decision will discuss the consideration of these factors.

When the Minister makes the public interest determination, the Minister must issue the Decision Statement no later than 30 days after the Impact Assessment Report is issued. When the Governor in Council makes the public interest determination, the Minister must issue the Decision Statement no later than 90 days from the end of the Impact Assessment phase when the report is posted or, for integrated review panels, no later than 90 days from when the Agency posts its recommendations for potential Decision Statement conditions.

Where relevant, and if it is determined that the designated project can proceed, the designated project may also be subject to regulatory decision(s) by lifecycle regulators or federal authorities.

Annex 1 – Relevant Legislative Provisions of the Impact Assessment Act

The following are the provisions in the Impact Assessment Act related to decision-making:

Definitions

Indigenous peoples of Canada
Has the meaning assigned by the definition aboriginal peoples of Canada in subsection 35(2) of the Constitution Act, 1982.
Direct or incidental effects
Means effects that are directly linked or necessarily incidental to a federal authority’s exercise of a power or performance of a duty or function that would permit the carrying out, in whole or in part, of a physical activity or designated project, or to a federal authority’s provision of financial assistance to a person for the purpose of enabling that activity or project to be carried out, in whole or in part.
Effects
Means, unless the context requires otherwise, changes to the environment or to health, social or economic conditions and the positive and negative consequences of these changes.
Effects within federal jurisdiction
Means, with respect to a physical activity or a designated project,
  1. a change to the following components of the environment that are within the legislative authority of Parliament:
    1. fish and fish habitat, as defined in subsection 2(1) of the Fisheries Act,
    2. aquatic species, as defined in subsection 2(1) of the Species at Risk Act,
    3. migratory birds, as defined in subsection 2(1) of the Migratory Birds Convention Act, 1994, and
    4. any other component of the environment that is set out in Schedule 3;
  2. a change to the environment that would occur:
    1. on federal lands;
    2. in a province other than the one where the physical activity or the designated project is being carried out; or
    3. outside Canada;
  3. with respect to the Indigenous peoples of Canada, an impact — occurring in Canada and resulting from any change to the environment — on:
    1. physical and cultural heritage;
    2. the current use of lands and resources for traditional purposes; or
    3. any structure, site or thing that is of historical, archaeological, paleontological or architectural significance;
  4. any change occurring in Canada to the health, social or economic conditions of the Indigenous peoples of Canada; and
  5. any change to a health, social or economic matter that is within the legislative authority of Parliament that is set out in Schedule 3.
Minister’s decision
60 (1) After taking into account the report with respect to the impact assessment of a designated project that is submitted to the Minister under subsection 28(2) or at the end of the assessment under the process approved under section 31, the Minister must:
  1. determine if the adverse effects within federal jurisdiction — and the adverse direct or incidental effects — that are indicated in the report are, in light of the factors referred to in section 63 and the extent to which those effects are significant, in the public interest; or
  2. refer to the Governor in Council the matter of whether these effects are, in light of the factors referred to in section 63 and the extent to which those effects are significant, in the public interest.
Notice posted on the Internet Site
(2) If the Minister refers the matter to the Governor in Council, he or she must ensure that a notice of the referral and the reasons for it are posted on the Internet site.
Referral to Governor in Council
61 (1) After taking into account the report with respect to the impact assessment of a designated project that the Minister receives under section 55 or that is submitted to the Minister under section 59, the Minister, in consultation with the responsible Minister, if any, must refer to the Governor in Council the matter of determining whether the adverse effects within federal jurisdiction — and the adverse direct or incidental effects — that are indicated in the report are, in light of the factors referred to in section 63 and the extent to which those effects are significant, in the public interest.
Governor in Council’s determination
62 If the matter is referred to the Governor in Council under paragraph 60(1.(b) or section 61, the Governor in Council must, after taking into account the report with respect to the impact assessment of the designated project that is the subject of the referral, determine whether the adverse effects within federal jurisdiction — and the adverse direct or incidental effects — that are indicated in the report are, in light of the factors referred to in section 63 and the extent to which those factors are significant, in the public interest.
Factors — public interest
63 The Minister’s determination under paragraph 60(1.(a) in respect of a designated project referred to in that subsection, and the Governor in Council’s determination under section 62 in respect of a designated project referred to in that subsection, must be based on the report with respect to the impact assessment and a consideration of the following factors:
  1. the extent to which the designated 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 mitigation measures that the Minister or the Governor in Council, as the case may be, considers appropriate;
  4. the impact that the designated project may have on any Indigenous group and any adverse impact that the designated project may have on the rights of the Indigenous peoples of Canada recognized and affirmed by section 35 of the Constitution Act, 1982; and
  5. the extent to which the effects of the designated project hinder or contribute to the Government of Canada’s ability to meet its environmental obligations and its commitments in respect of climate change.
Conditions — effects within federal jurisdiction
64 (1) If the Minister determines under paragraph 60(1.(a), or the Governor in Council determines under section 62, that the effects that are indicated in the report that the Minister or the Governor in Council, as the case may be, takes into account are in the public interest, the Minister must establish any condition that he or she considers appropriate in relation to the adverse effects within federal jurisdiction with which the proponent of the designated project must comply.
Conditions — direct or incidental effects
(2) If the Minister determines under paragraph 60(1.(a), or the Governor in Council determines under section 62, that the effects that are indicated in the report that the Minister or the Governor in Council, as the case may be, takes into account are in the public interest, the Minister must establish any condition that he or she considers appropriate — that is directly linked or necessarily incidental to the exercise of a power or performance of a duty or function by a federal authority that would permit a designated project to be carried out, in whole or in part, or to the provision of financial assistance by a federal authority to a person for the purpose of enabling the carrying out, in whole or in part, of that designated project — in relation to the adverse direct or incidental effects with which the proponent of the designated project must comply.
Conditions subject to exercise of power or performance of duty or function
(3) The conditions referred to in subsection (2) take effect only if the federal authority exercises the power or performs the duty or function or provides the financial assistance.
Mitigation measures and follow-up program
(4) The conditions referred to in subsections (1) and (2) must include:
  1. the implementation of the mitigation measures that the Minister takes into account in making a determination under paragraph 60(1.(a), or that the Governor in Council takes into account in making a determination under section 62, other than those the implementation of which the Minister is satisfied will be ensured by another person or by a jurisdiction; and
  2. the implementation of a follow-up program and, if the Minister considers it appropriate, an adaptive management plan.
Decision Statement issued to proponent
65 (1) The Minister must issue a Decision Statement to the proponent of a designated project that:
  1. informs the proponent of the determination made under paragraph 60(1.(a) or section 62 in relation to that project and the reasons for the determination;
  2. includes any conditions that are established under section 64 in relation to the designated project and that must be complied with by the proponent;
  3. sets out the period established under subsection 70(1); and
  4. includes a description of the designated project.
Detailed reasons
(2) The reasons for the determination must demonstrate that the Minister or the Governor in Council, as the case may be, based the determination on the report with respect to the impact assessment of the designated project and considered each of the factors referred to in section 63.
Decision Statement considered to be part of licence under the Nuclear Safety and Control Act
67 (1) The Minister may, in a Decision Statement issued in relation to a designated project that includes activities that are regulated under the Nuclear Safety and Control Act, designate any condition that is included in the Decision Statement, and any condition designated by the Minister is considered to be a part of the licence issued under section 24 of that Act in relation to the designated project.
Decision Statement considered part of certificate, etc., under the Canadian Energy Regulator Act
(2) A Decision Statement issued in relation to a designated project that includes activities that are regulated under the Canadian Energy Regulator Act is considered to be a part of the certificate, order, permit, licence or authorization issued, the leave or exemption granted or the direction or approval given under that Act in relation to the designated project.
Decision Statement considered to be part of authorization, etc., under the Canada Oil and Gas Operations Act
(3) A Decision Statement issued in relation to a designated project that includes activities that are regulated under the Canada Oil and Gas Operations Act is considered to be a part of the authorization or licence issued, the approval granted or the leave given under that Act in relation to the designated project.
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