Consultation Paper on Information Requirements and Time Management Regulations

Info Alert

Public comments were sought from February 8 to June 1, 2018. This consultation is now closed, but another consultation will take place in the fall on the regulatory proposals.

Visit https://www.impactassessmentregulations.ca/ to read participants’ comments and submissions.

Updated April 19, 2018

Introduction - We want your views

The Government of Canada is beginning consultations on the Information Requirements and Time Management Regulations (proposed regulations) that will be developed pursuant to the proposed Impact Assessment Act. These regulations would prescribe:

• the information that the proponent is required to provide to the new Impact Assessment Agency of Canada (the Agency) at the early planning phase of the potential impact assessment;
• the documents the Agency is required to provide to proponents if it is determined that an impact assessment is required; and
• the circumstances in which the Minister could stop the clock for the legislated timelines during the impact assessment process.

For cases where life-cycle regulators, such as the Canadian Nuclear Safety Commission, the proposed Canadian Energy Regulator or the Offshore Boards, may be involved, there may be additional regulatory requirements to be addressed through those existing processes. These proposed regulations would replace the existing Prescribed Information for the Description of a Designated Project Regulations under the Canadian Environmental Assessment Act, 2012 (CEAA 2012) upon the coming into force of the proposed legislation.

The purpose of this paper is to seek views on the proposed approach to the regulations prior to the formal regulatory process. This paper provides an overview of possible elements of the proposed regulations. It represents the start of a consultative process in which the Government will discuss with Indigenous groups, provinces, stakeholders, and the public how best to meet the requirements of the legislation. The Government is committed to revising the regulations through engagement and early discussions with Canadians on the path forward.

Context

In January 2016, the Government of Canada announced an interim approach that included principles and plans to guide its decision-making on major natural resource projects while it undertook a review of environmental assessment processes. The objective of the review is to rebuild public trust, protect the environment, advance reconciliation with Indigenous peoples, and ensure good projects get built and create jobs and economic opportunities for Canadians. In June 2016, the Government of Canada launched a review of environmental assessment processes under CEAA 2012. One year later, following the report of the Expert Panel and extensive consultation, the Government released a Discussion Paper in June 2017 outlining the changes it was considering for Canada’s environmental assessment and regulatory processes and undertook further consultations.

Through the proposed Impact Assessment Act, the Government is proposing new rules that protect the environment, recognize and respect Indigenous rights, and strengthen our economy. These new rules will involve a shift from environmental assessment to impact assessment. While federal environmental assessment under CEAA 2012 focuses strictly on effects on the environment or other types of effects resulting from changes to the environment, the new impact assessment process will serve as a planning tool that takes into consideration the whole range of environmental, health, social and economic effects of projects. This new regime will shift away from decisions based solely on the significance of effects and focus instead on whether the adverse effects in areas of federal jurisdiction are in the public interest. The public interest determination will be guided by a project’s contribution to sustainability, the extent to which these effects are adverse, measures to mitigate adverse effects, impacts on indigenous groups and their rights and impacts on Canada’s ability to meet its environmental obligations and climate changes commitments. The Government will be launching a strategic assessment of climate change in the coming months which will lay out how climate change considerations would be integrated in the impact assessment process and in determining whether a project is in the public interest.

• key information requirements to support the new early planning phase and impact assessment;
• the documents the Agency is required to provide to proponents if it is determined that an impact assessment is required; and
• the criteria for stopping the clock for legislated timelines.

Overview of the proposed impact assessment process

The proposed impact assessment process differs from that under Canadian Environmental Assessment Act, 2012 (CEAA 2012). The following diagram provides a broad overview of the phases of the proposed legislated impact assessment process. It indicates where the proponent would be required by the proposed regulations to submit information to the Agency (highlighted in green) as well as where in the process the Agency would be required to provide proponents with documents for the impact assessment process. It also lays out the associated legislated timelines for each stage of assessment, and which of those timelines could be suspended based on the criteria set out in the proposed regulations (highlighted in blue).

Throughout the impact assessment process, other federal government departments would be involved and providing expert advice in engagement with Indigenous groups, provinces, and stakeholders, the determination that an impact assessment is required, the development of the summary of issues, the impact assessment by the Agency and the Review Panel.

Information requirements

Initial Project Description

The first document the proponent would be required to prepare, the initial project description, is a high-level description of the proposed project which, once accepted by the Agency, would be posted on the Agency website. The purpose of this initial project description is three-fold. It would:

1. Allow the Agency to determine that the project is a designated project under the proposed legislation;
2. Inform the public about the proposed project; and
3. Include sufficient detail to support cooperation discussions with Indigenous jurisdictions and provinces and commence engagement with Indigenous groups, provinces, stakeholders, and the public on the project.

The initial project description would form the basis for early engagement on the proposed project. It would allow the potentially affected Indigenous groups, provinces, stakeholders, and public the opportunity to understand what the proposed project involves and if it is located in an area that could impact them. It would also be used by the Agency as it undertakes engagement with Indigenous groups, provinces, stakeholders, and the public during the planning phase. The initial project description would also provide proponents the opportunity to consider changes to the project design before the design is too far advanced. While some proponents undertake early engagement with potentially affected parties as a best practice, there is currently no legislated requirement to do so.

The Government is considering the key information that should be required in the initial project description (Annex I) that would include general information about the type, components, and location of the project as well as information on consultation that the proponent has conducted to date. The information requested in Annex I is similar to that required in the first three sections of the current Prescribed Information for the Description of a Designated Project Regulations under the Canadian Environmental Assessment Act, 2012 (For reference see in Annex III).

Proponents may be required to submit information and data in an accessible and usable format prescribed by the Agency.

The Proponent’s Response to Issues and Detailed Project Description

The second document the proponent would be required to prepare would include two components:

1. The proponent’s response to the issues provided by the Agency following engagement and cooperation discussions. This could include issues that were raised during consultation in the early planning phase as well as issues with respect to the proposed project that the Agency considers relevant.
2. A detailed description of the designated project.

This document would be used to help the Agency determine whether or not an impact assessment is required. As per the proposed legislation, the Agency would need to consider the following when deciding if the designated project is required to undergo an impact assessment:

• the information included in the initial and the detailed project descriptions;
• the possible adverse effects within federal jurisdiction or the adverse direct or incidental effects caused by carrying out the designated project;
• any adverse impact the designated project may have on the rights of Indigenous peoples of Canada;
• any comments received by the public;
• any relevant regional or strategic study;
• any study that is conducted or plan that is prepared by a jurisdiction (in respect of a region in which the designated project is located) and that has been provided to the Agency; and
• any other factor that the Agency considers relevant.

The proponent’s response to issues and the detailed project description would support more timely impact assessments. It would allow the Agency to provide the proponent with more clarity on the information and the level of consultation that would be required to complete the impact assessment.

The Government is considering a list of requirements (Annex II) for the detailed project description. This list would include updated information from the initial project description that proponents have already provided as well as information about the possible environmental, social, health and economic effects of the project. This information would enable the Agency to produce the documents which would guide the impact assessment, providing more certainty and predictability at the outset of the process.

Agency guidance would be developed to support proponents in providing the appropriate information and level of detail. As is currently the approach the Agency would be available to engage with proponents in developing their submission. Proponents may be required to submit information and data in an accessible and usable format prescribed by the Agency.

Documents the Agency is required to provide to proponents

If an impact assessment is required, the Agency would provide the proponent with a notice of commencement of the impact assessment and post this notice on the website. This would signal the end of the early planning phase. Information in the detailed project description and the proponent’s response to issues would be used by the Agency to support assessment planning and coordination with implicated jurisdictions and departments. It would help inform the development of documents that would be used to guide the impact assessment process, which would be posted on the Agency website at the same time as the notice of commencement. The Government is proposing to prescribe in the regulations these documents that the Agency would be required to provide to the proponent if it is determined that an impact assessment is required. These documents would be made available on the Agency website for public comment:

• Impact Assessment Cooperation Plan – This would establish a plan between the Agency and provinces and Indigenous jurisdictions, where applicable, on the impact assessment process. It would also establish harmonized timelines, when possible, with other jurisdictions.
• Public Engagement Plan – This plan would be developed to outline the public engagement approach and tools to be used in the assessment.
• Indigenous Engagement Plan – This would be developed jointly with Indigenous jurisdictions and provinces where relevant. It would be a plan for engagement with Indigenous groups during the impact assessment process.
• Tailored Impact Statement Guidelines – This would be a document the Agency develops in consultation with others to outline the information required from the proponent in the impact statement. These guidelines would be posted on the Agency website for public comment.
• Permitting Plan – This permitting plan would be developed by the Agency in coordination with federal regulators. It would outline the anticipated permits, licences, and authorizations required for the project and the necessary information to support regulatory reviews, including for life-cycle regulators where applicable. It would be posted on the Agency website.

Prescribing in regulations the documents that the Agency would produce to guide the impact assessment process would provide Indigenous groups, provinces, stakeholders and the public with clarity and predictability at the outset of the process in knowing what the Agency is committed to provide as a result of the planning phase.

Timeline Management

To ensure predictability for Indigenous groups, provinces, stakeholders, and the public, legislated timelines would be established for each phase of federal assessments.

Decision Making

• Decision by Minister – up to 30 days
• Decision by Governor in Council – up to 90 days

These timelines are expressed as calendar days in the proposed legislation. The Minister, the Agency, the Panel, and the Governor in Council would be subject to these timelines.

Some examples of the maximum lengths of time on the part of the federal government for impact assessments under the proposed legislation are as follows:

• Impact assessment by Agency for a project on the designated project – 510 days (180 days Early Planning plus 300 days for Impact Assessment plus 30 days for Ministerial decision)
• Review Panel – 870 days (180 days Early Planning plus 600 days for Review Panel plus 90 days for Governor in Council decision)

Timelines can be extended once by the Minister for a period of up to 90 days. Any additional timeline extension must be made by the Governor in Council. Timeline extensions can only be provided for the planning phase, the impact assessment by the Agency, the Review Panel, or the decision making phase.

Throughout all phases of the process proponents will remain in control of the timing for the submission of information that they are required to provide. In order to ensure that information for analysis and decision-making is current, proponents will be required to submit their Impact Statement to the Agency within 3 years of receiving the Impact Statement Guidelines from the Agency. The Agency would have the ability to provide an extension to the 3 year limit if a reasonable request is received from the proponent for additional time.

Stopping the clock for legislated timelines

There may be circumstances in which the clock may need to be stopped for the legislated timelines, with the exception of decision making. The criteria to determine when the clock for the legislated timelines could be stopped would be prescribed through regulations. The intent of these proposed regulations is to build in a mechanism where the clock can be stopped for legislated timelines to account for circumstances which might occur on the part of the proponent, the Agency, the Minister, or the Review Panel throughout the planning phase and impact assessment process.

To provide greater predictability and consistency to Indigenous groups, provinces, stakeholders, and the public in the management of these legislated timelines, the Government is considering setting in regulations a limited number of clear criteria for the Minister to stop the clock for legislated timelines. The Minister can delegate the authority to stop the clock for legislated timelines to the Agency. Requests from an expert federal department for additional information that was not previously identified during the early planning process, and which would result in the Agency stopping the clock would first need to be validated by the Chief Science Officer (or equivalent senior-level position) within that expert federal department prior to being actioned by the Agency. In each case where the clock is stopped for a legislated timeline, the Minister would be required to post a notice on the Agency website and identify the reasons for the stoppage. Setting out these criteria in regulations and posting a notice on the Agency website each time the clock is stopped would increase transparency under the proposed new impact assessment process.

The proposed criteria under which the clock for the legislated timelines could be stopped in the future include:

• the proponent requesting that the timeline be suspended;
• if there is a design change by the proponent that could change the potential impacts of the project;
• if critical information is missing (e.g. from the prescribed information requirements provided by the Agency during the early Planning phase) that is needed to complete the assessment; or
• in the event of non-payment by the proponent of cost recoverable activities until such time as the payment has been received.

The proposed regulation would specify that whole days are to be counted. This means that any action taken on one calendar day would then lead to stopping the clock for legislated timelines or restarting the clock for the legislated timelines on the following calendar day.

Review Mechanism

The Agency would establish a review mechanism through which proponents, Indigenous groups, stakeholders, and the public could submit concerns about the management of timelines. Recommendations on how to address these concerns would be submitted to the head of the Agency. The recommendations as well as the Agency response to those recommendations would be made publicly available on the Agency website.

Next Steps – Seeking Your Views

We are interested in your views on the proposed content of these potential regulations and would welcome comments on or before June 1, 2018. They can be provided to: https://www.impactassessmentregulations.ca/. The Government will consider all comments received as it further refines its approach and continues engagement on the proposed Information Requirements and Time Management regulations. The proposed regulations provide the right information in the new planning phase to guide the impact assessment and clarify the conditions under which the clock can be stopped for legislated timelines so that timelines are effectively managed. The overall objective of the proposed regulations is to support the Government’s commitment to timely, evidence-based decision making.

In the next few months, the Government will conduct a review of the feedback received on the proposed regulations as part of this consultation opportunity. Following this first round of consultation, there will be two other phases of consultation. In the fall of 2018 the proposed Information Requirements and Time Management regulations will be shared for a subsequent round of consultation with Indigenous groups, provinces, stakeholders, and the public. Following this input the proposed regulations will be revised in advance of commencing the formal regulatory process in 2019, ultimately leading to the official coming into force of the regulation through publication in the Canada Gazette.

Annex I - Initial project Description

General Information

1 The project’s name, nature and proposed location.

2 The proponent’s name and contact information and the name and contact information of their primary representative for the purpose of the description of the project.

3 A description of and the results of any engagement undertaken with any jurisdictions and other parties including Indigenous peoples and the public.

4 The environmental assessment and regulatory requirements of other jurisdictions.

5 A description of any environmental study that is being or has been conducted of the region where the project is to be carried out by any jurisdiction including by or on behalf of an Indigenous governing body.

Project Information

6 A description of the project’s context and objectives.

7 A list of all designated activities listed in the schedule to the Project List that will be included in the designated project.

8 A description of any physical works that are related to the project including their purpose, size and capacity.

9 The anticipated production capacity of the project and a description of the production processes to be used, the associated infrastructure and any permanent or temporary structures.

10 A description of all activities anticipated to be performed in relation to the project.

Location Information

11 A description of the project’s location, including

1. its geographic coordinates;
2. site maps produced at an appropriate scale in order to determine the project’s overall location and the spatial relationship of the project components;
3. the legal description of land to be used for the project, including the title, deed or document and any authorization relating to a water lot;
4. the project’s proximity to any permanent, seasonal or temporary residences;
5. the project’s proximity to reserves, traditional territories, as well as lands and resources currently used for traditional purposes by Indigenous peoples; and
6. (f) the project’s proximity to any federal lands.

Annex II - Detailed Project Description

General Information

1 The project’s name, nature and proposed location.

2 The proponent’s name and contact information and the name and contact information of their primary representative for the purpose of the description of the project.

3 The environmental assessment and regulatory requirements of other jurisdictions.

4 A description of any study by a jurisdiction that is being or has been conducted of the region where the designated project is to be carried out, including any assessment of the effects of the designated project that is conducted by or on behalf of an Indigenous governing body.

Early Planning Results

5 A description of and the results of all engagement undertaken with any jurisdiction and other parties including Indigenous peoples and the public as part of the early planning phase. Include how the issues that arose from this engagement will be addressed.

Provide information on any changes to the following as a result of the early planning process:

• 6 The project’s context and objectives.
• 7 The provisions in the schedule to the Project List describing the project in whole or in part.
• 8 The physical works that are related to the project including their purpose, size and capacity.
• 9 The anticipated production capacity of the project and a description of the production processes to be used, the associated infrastructure and any permanent or temporary structures.
• 10  All activities anticipated to be performed in relation to the project.
• 11 The waste and emissions (air, water and land) that are likely to be generated during any phase of the project and of a plan to manage the waste and emissions (air, water and land).
• 12 The anticipated phases of and the schedule for the project’s construction, operation, decommissioning, reclamation, and abandonment.
• 13 The project’s location, including
  1. its geographic coordinates;
  2. site maps produced at an appropriate scale in order to determine the project’s overall location and the spatial relationship of the project components;
  3. the legal description of land to be used for the project, including the title, deed or document and any authorization relating to a water lot;
  4. the project’s proximity to any permanent, seasonal or temporary residences;
  5. the project’s proximity to reserves, traditional territories as well as lands and resources currently used for traditional purposes by Indigenous peoples; and
  6. the project’s proximity to any federal lands.

Information in Impact Assessment Planning

Project Information

14 A description of the purpose of and the need for the designated project

15 A description of any alternatives to the designated project.

16 A description of alternative means of carrying out the designated project that are technically and economically feasible, and the effects of those means.

17 A description of the best available technologies and best environmental practices that will be used in the construction, operation and decommissioning of the designated project.

Federal, Provincial, Territorial, Indigenous or Municipal Involvement

18 A description of any financial support that federal authorities are, or may be, providing to the project.

19 A description of any federal land that may be used for the purpose of carrying out the project.

20 A description of any greenhouse gas policies, legislative or regulatory measures applicable to the project.

21 A list of the permits, licenses or other authorizations that may be required by a federal, provincial, territorial, Indigenous, or municipal authority to carry out the project.

Potential Effects of the Project

22 A description of the physical and biological setting.

23 A description of the health, social and economic setting in the region where the project is located.

24 A description of any changes to the following components of the environment that are within legislative authority of Parliament that may be caused, as a result of carrying out the project, to

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 of the legislation.

25 A description of any changes that may be caused to the environment that may occur, as a result of carrying out the project, on federal lands, in a province other than the province in which the project is proposed to be carried out, or outside of Canada.

26 A description of the effects that may be caused to the environment with respect to Indigenous peoples of Canada as a result of carrying out the project, on physical and cultural heritage, the current use of lands and resources for traditional purposes or on any structure, site or thing that is of historical, archaeological, paleontological or architectural significance.

27 A description of the effects of any change occurring in Canada that may be caused to the health, social or economic conditions of Indigenous peoples.

28 An estimate of the greenhouse gas emissions associated with the designated project

29 A description of any waste and emissions (air, water and land) that are likely to be generated during any phase of the project and of a plan to manage the waste and emissions (air, water and land).

30 A description of the effects of any change that may be caused to a health, social or economic matter within the legislative authority of Parliament that is set out in Schedule 3 of the legislation.

31 A description of 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.

Studies, Plans and Methodologies

32 A description of the studies that will be undertaken by the proponent during the impact assessment.

33 A description of the planned engagement activities that will be undertaken by the proponent during the impact assessment process including who will be engaged, the method for engagement, and the timing of those activities.

34 A description of planned engagement activities with Indigenous peoples that will be undertaken by the proponent during the impact assessment process and how the proponent will respond to Indigenous concerned raised during engagement.

35 A description of the methodologies that will be used to complete the impact assessment.

Summary

36 A summary of the information required under sections 1 to 35 in English and French.

Annex III – schedule to the Prescribed Information for the Description of a Designated Project Regulations under the Canadian Environmental Assessment Act, 2012

Schedule

Prescribed Information for the Description of a Designated Project

General Information

1 The project’s name, nature and proposed location.

2 The proponent’s name and contact information and the name and contact information of their primary representative for the purpose of the description of the project.

3 A description of and the results of any consultations undertaken with any jurisdictions and other parties including Aboriginal peoples and the public.

4 The environmental assessment and regulatory requirements of other jurisdictions.

4.1 A description of any environmental study that is being or has been conducted of the region where the project is to be carried out.

Project Information

5 A description of the project’s context and objectives.

6 The provisions in the schedule to the Regulations Designating Physical Activities describing the project in whole or in part.

7 A description of the physical works that are related to the project including their purpose, size and capacity.

8 The anticipated production capacity of the project and a description of the production processes to be used, the associated infrastructure and any permanent or temporary structures.

9 A description of all activities to be performed in relation to the project.

10 A description of any waste that is likely to be generated during any phase of the project and of a plan to manage that waste.

11 A description of the anticipated phases of and the schedule for the project’s construction, operation, decommissioning and abandonment.

Project Location Information

12 A description of the project’s location, including

1. its geographic coordinates;
2. site maps produced at an appropriate scale in order to determine the project’s overall location and the spatial relationship of the project components;
3. the legal description of land to be used for the project, including the title, deed or document and any authorization relating to a water lot;
4. the project’s proximity to any permanent, seasonal or temporary residences;
5. the project’s proximity to reserves, traditional territories as well as lands and resources currently used for traditional purposes by Aboriginal peoples; and
6. the project’s proximity to any federal lands.

Federal Involvement

13 A description of any financial support that federal authorities are, or may be, providing to the project.

14 A description of any federal land that may be used for the purpose of carrying out the project.

15 A list of the permits, licenses or other authorizations that may be required under any Act of Parliament to carry out the project.

Environmental Effects

16 A description of the physical and biological setting.

17 A description of any changes that may be caused, as a result of carrying out the project, to

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; and
3. migratory birds, as defined in subsection 2(1) of the Migratory Birds Convention Act, 1994.

18 A description of any changes to the environment that may occur, as a result of carrying out the project, on federal lands, in a province other than the province in which the project is proposed to be carried out or outside of Canada.

19 Information on the effects on Aboriginal peoples of any changes to the environment that may be caused as a result of carrying out the project, including effects on health and socio-economic conditions, physical and cultural heritage, the current use of lands and resources for traditional purposes or on any structure, site or thing that is of historical, archaeological, paleontological or architectural significance.

Summary

20 A summary of the information required under sections 1 to 19.