Step 3: Impact Assessment
The impact assessment phase would be reoriented from environmental assessment focused on reducing environmental effects to a holistic impact assessment with a focus on sustainability, where broader impacts would be considered.
- Foster sustainability
- Ensure consistency and predictability
- Consider science, evidence and Indigenous knowledge in impact assessments
Key Actions during this Phase:
- Submits Impact Statement
- Responds to information requests
- Conducts additional studies, as required
- Participates in public engagements sessions, hearings, etc.
Agency or Review Panel:
- Leads public engagement sessions
- Leads engagement and consultation with Indigenous peoples
- Works with other jurisdictions to achieve “one project, one assessment”
- Collaborates with other federal departments and other jurisdictions
- Conduct holistic impact assessments with a focus on sustainability
- Prepares Impact Assessment Report
- May lead part or all of the assessment
- May contribute Indigenous knowledge
- Provides input into the assessment process
Other Jurisdictions (federal, provincial, territorial, Indigenous):
- Identifies opportunities to cooperate and harmonize processes
The mandate of the new Act 6 would be expanded to require the consideration of sustainability, respect the Government’s commitments with respect to the rights of Indigenous peoples and the application of the precautionary principle in impact assessment. As well, under the proposed new Act, the scope of assessment would be broadened to include environmental, economic, social, health and gender impacts. There would be a requirement to consider both the short-term and lasting positive and negative effects of a project. This would support a focus on sustainability 2 where lasting benefits would be favored rather than simple trade-offs related to short-term gains.
(2) The Government of Canada, the Minister, the Agency and federal authorities, in the administration of this Act, must exercise their powers in a manner that fosters sustainability, respects the government’s commitments with respect to the rights of the Indigenous peoples of Canada and applies the precautionary principle.
Sustainability means a state in which the environment as well as the health and social and economic well-being of the people of Canada are protected or enhanced in a manner that benefits present and future generations.
Factors to be considered in Impact Assessments
The broadened scope of impact assessments, whether conducted by the Agency or review panel, would take into account the breadth of issues that are of concern to Canadians. A number of factors have been added or restored 22 to the impact assessment process to ensure a sustainability focus. These factors include:
- interactions between the impacts (e.g., environmental changes that may lead to adverse health and social impacts)
- need for the project
- other means of implementing the project including the use of best available technologies to carry out the project (e.g., choosing technologies that have lower greenhouse gas emissions)
- alternatives to the project that are technically and economically feasible and are directly related to the project
- extent to which the project contributes to sustainability
- extent to which the project affects the Government of Canada’s ability to meet its environmental obligations and commitments related to climate change (e.g., Paris Agreement on climate change)
- impact assessments would require consistent use of Gender-Based Analysis Plus (GBA+), looking at matters that are related to gender issues, impact on vulnerable groups, and overall effect of on communities (e.g., the influx of people in a temporary work camp)
- any relevant regional or strategic assessment initiated by the federal government or another jurisdiction
(1) The impact assessment of a designated project, whether it is conducted by the Agency or a review panel, must take into account the following factors:
(a) The changes to the environment or to health, social or economic conditions and the positive and negative consequences of those changes that are likely to be caused by the carrying out of the designated project, including
iii. The result of any interaction between those effects; (...)
(d) the purpose of and need for the designated project;
(e) alternative means of carrying out the designated project that are technically and economically feasible, including through the use of best available technologies, and the effects of those means; (...)
(h) the extent to which the designated project contributes to sustainability;
(i) the extent to which the effects of the designated project hinder or contribute to the Governement of Canada’s ability to meet its environmental obligations and its commitments in respect of climate change; (...)
(p) any relevant assessment referred to in section 92, 93 or 95; (...)
(r) any study or plan that is conducted or prepared by a jurisdiction – or an Indigenous governing body no referred to in paragraph (f) or (g) of the definition jurisdiction in section 2 – that is in respect of a region related to the designated project and that has been provided with respect to the project;
(s) the intersection of sex and gender with other identity factors;
Indigenous Engagement and Partnership
The proposed new Act would also expand the range of potential impacts on Indigenous peoples 22 that are considered in assessments and require that assessments take into account Indigenous rights and culture. It would also be mandatory to consider Indigenous knowledge provided. Indigenous knowledge would be protected from unauthorized release and managed in accordance with Indigenous laws and protocols.
Tools and guidance would be developed collaboratively with Indigenous peoples to better support and systematically consider Indigenous knowledge alongside science and other evidence.
(1) (c) the impact that the designated project may have on any Indigenous group and any adverse impacts that the designated project of the rights of the Indigenous peoples of Canada recognized and affirmed by section 35 of the Constitution Act, 1982;
The Agency would be required to establish an Indigenous Advisory Committee 158 to serve as a new mechanism for ongoing collaboration in the development of policy and guidance to support implementation of the legislation.
(1) The Agency must establish an advisory committee to advise it with respect to the interests and concerns of the Indigenous peoples of Canada in relation to assessments to be conducted under this Act.
Science and Evidence
In order to enhance the rigour of impact assessments, decisions would be guided by science, evidence, community knowledge, and Indigenous knowledge. Science and evidence would be rigorously tested by federal scientists and made available for third party reviews, as needed.
The Agency would establish a Technical Advisory Committee 157 on science and knowledge to advise the Agency on issues related to impact assessments, including regional and strategic assessments, such as research priorities and technical guidance documents.
Improved transparency measures would ensure that the science used in an impact assessment is open and accessible.
(1) The Agency must establish an expert committee to advise it on issues related to impact assessments and regional and strategic assessments, including scientific, environmental, health, social or economic issues.
The proposed Impact Assessment Act would ensure that all Canadians can have a say and participate in impact assessments. The requirements for individuals to meet specific criteria to participate in assessments (i.e., the “standing test” or “interested party” requirements) would be removed.
The existing participant funding programs 75 would be enhanced to support Indigenous and public participation for impact assessment. This includes expanding eligible activities and creating a more efficient funding process.
(1) The Agency must establish a participant funding program to facilitate the participation of the public in
(a) the Agency’s preparations for the possible impact assessment of – or the impact assessment of and the design or implementation of follow-up programs in relation to – designated projects (…)
The Registry website 104, which provides convenient public access to information, would be enhanced to enable greater access to information on impact assessment and regulatory processes. The enhanced Registry would also provide interactive approaches to improve the searching, usability and accessibility of information.
(1) There is to be a registry called the Canadian Impact Assessment Registry, consisting of an Internet site and project files.
(2)The Registry must be operated in a manner that ensures convenient public access to it. (…)
The Impact Assessment Act would also require the Minister to establish an advisory council 117 to advise on issues related to the implementation of impact assessments as well as regional and strategic assessments.
A single federal agency would now be responsible for conducting the impact assessments of designated projects. Previously, there were three government agencies – the Canadian Environmental Assessment Agency, the National Energy Board (NEB) and the Canadian Nuclear Safety Commission (CNSC) – that conducted environmental assessments and made decisions on designated projects.
(1) The minister must establish an advisory council to advise him or her on issues related to the implementation of the impact assessment and regional and strategic assessment regimes set out under this Act.
The Canadian Environmental Assessment Agency would now become the Impact Assessment Agency of Canada 155 (the Agency). It would be responsible for leading assessments and coordinating consultations with Indigenous peoples throughout the federal impact assessment process for all federally designated projects. This new structure would bring about greater process integrity and ensure consistency in how major projects are assessed and consultations are conducted, and would help to make the process more accessible to all Canadians, by providing a single-window point of contact for all types of assessments.
The Agency’s objects are
(a) to conduct or administer impact assessments and administer any other requirements and procedures established by this Act and the regulations;
(c) to promote uniformity and harmonization in relation to the assessment of effects across Canada all levels of government;
Agency Led Impact Assessments
The Agency would be responsible for assessing the sufficiency and accuracy of the proponent’s Impact Statement. Federal authorities would participate in this step of the impact assessment by providing expert advice 23.
Every federal authority that is in possession of specialist or expert information or knowledge with respect to a designated project that is subject to an impact assessment must, on request, make that information available, within the specified period (…)
The Agency may require the proponent to provide clarification or further information 26 to understand the potential impacts of the project. The Agency reviews the additional information submitted by the proponent for adequacy and accuracy. If any information gaps remain or clarifications are needed, the proponent provides additional information to the Agency. It is anticipated that effective early planning and engagement and effective work by proponents in completing the Impact Statement will reduce the number and complexity of information requests, resulting in a more effective and timely impact assessment process.
(2) However, if the Agency is of the opinion that there is not sufficient information available to it for the purpose of conducting the impact assessment or preparing the report with respect to the impact assessment, it may require the collection of any information or the undertaking of any study that, in the Agency’s opinion, is necessary for that purpose, including requiring the proponent to collect that information or undertake that study.
For impact assessments led by the Agency, the Agency is responsible for preparing the Impact Assessment Report 25. The draft Impact Assessment Report must be posted on the Agency’s website for public comment.
The Agency must ensure that
(a) an impact assessment of the designated project is conducted; and
(b) a report is prepared with respect to that impact assessment.
The Impact Assessment Report 28 must describe the potential positive and negative impacts of the project and the severity of those impacts. The report must also include how the Agency took into account Indigenous knowledge in determining the effects that are likely to be caused by the carrying out of a designated project as well as include a summary of comments received by the public.
(1) The Agency must ensure that a draft report with respect to the impact assessment of a designated project is prepared, and must ensure that the following are posted on the Internet site:
(a) A copy of the draft report or an indication of how a copy may be obtained; and
(b) A notice that invites the public to provide comments on the draft report within the period specified.
(3) The report must set out the effects that, in the Agency’s opinion, are likely to be caused by the carrying out of the designated project. It must also indicate, from among the effects set out in the report, those that are adverse effects within federal jurisdiction and those that are adverse direct or incidental effects, and specify the extent to which those effects are adverse.
(3.1) Subject to section 199, the report must set out how the Agency, in determining the effects that are likely to be caused by the carrying out of the designated project, took into account and used any Indigenous knowledge provided with respect to the designated project.
(3.2) The report must also set out a summary of any comments received from the public, as well as the Agency’s recommendations with respect to any mitigation measures and follow-up program and the Agency’s rationale and conclusions.
Timelines for Impact Assessment by the Agency
The time limit for an impact assessment conducted by the Agency is up to 300 days 28 from the time that the Agency posts a notice that it is satisfied that the proponent has provided all of the information that was requested and ends when the final report is submitted to the Minister and posted on the website.
Prior to the commencement of the impact assessment the Minister may set a longer or shorter time limit than 300 days to cooperate with another jurisdiction or to take into account project specific circumstances. This decision and the reasons would be posted on the website.
Assessments where there is a Life-Cycle Regulator
For impact assessments of designated projects regulated by the proposed new Canadian Energy Regulator or the Canadian Nuclear Safety Commission, the impact assessment would integrate the regulatory review requirements to the greatest extent possible.
(2) After taking into account any comments received from the public, the Agency must, subject to subsection (5), finalize the report with respect to the impact assessment of the designated project and submit it to the Minister no later than 300 days after the day on which the notice referred to in subsection 19(4) is posted on the Internet site.
If the Agency concludes that an impact assessment is required for a designated project that is regulated under the Nuclear Safety and Control Act or the proposed Canadian Energy Regulator Act, then the Minister must refer the assessment to a review panel 43. The assessment would meet requirements under the Impact Assessment Act and the respective regulatory Act (i.e., the proposed Canadian Energy Regulator Act and Nuclear Safety and Control Act). The Agency would lead in providing support to the review panel, with assistance from life-cycle regulators, using the procedures established under the Impact Assessment Act and its regulations, and ensuring the impact assessment and regulatory expertise required are available to the review panel. Life-cycle regulators would participate in engagement activities for all stages of the impact assessment process.
The integrated review would result in one report with two sections: an impact assessment report and regulator recommendations. The decision as to whether the project’s adverse effects in federal jurisdiction are in the public interest would rest with Cabinet. The life-cycle regulator would continue to be responsible for monitoring project compliance with conditions throughout the project’s life-cycle.
The Minister must refer the impact assessment of a designated project to a review panel is the project includes physical activities that are regulated under any of the following Acts:
(a) the Nuclear Safety and Control Act;
(b) the Canadian Energy Regulator Act.
Review Panel Led Impact Assessments
In addition to projects where there is a life-cycle regulator, the Minister may also refer other impact assessments to a review panel 36. When an impact assessment is conducted by a review panel, the review panel is responsible for holding hearings and preparing the Impact Assessment Report 51. The Review Panel’s Impact Assessment Report must describe the potential impacts of the project, how Indigenous knowledge was taken into account, include a summary of comments received from the public, and the review panel’s recommendations 51.
(1) Within 45 days after the day on which the notice of the commencement of the impact assessment of a designated project is posted on the Internet site, the Minister may, if he or she is of the opinion that it is in the public interest, refer the impact assessment to a review panel.
(1)(c) hold hearings in a manner that offers the public an opportunity to participate meaningfully, within the time period specified by the review panel, in the impact assessment;
(d) prepare a report with respect to the impact assessment that:
(i) sets out the effects that, in the opinion of the review panel, are likely to be caused by the carrying out of the designated project,
(ii) indicates which of the effects refer to in subparagraph (i) are adverse effects within federal jurisdiction and which are adverse direct or incidental effects, and specifies the extent to which those effects are adverse,
(ii.1) subject to section 119, sets out how the review panel, in determining the effects that are likely to be cause by the carrying out of the designated project, took into account and used any Indigenous knowledge provided with respect to the designated project,
(iii) sets out a summary of any comments received by the public, and
(iv) sets out the review panel’s rationale, conclusions and recommendations, including, conclusions and recommendations with respect to any mitigation measures and follow-up program
Timelines for Impact Assessment by Review Panel
For impact assessments conducted by a review panel, the time limit would be up to 600 days 37 from the day on which the panel members were appointed for the review panel to submit the final report to the Minister.
Before the referral to review panel, the Minister may set a longer or shorter time limit for the assessment to account for project specific circumstances or to cooperate with a jurisdiction.
For integrated panel reviews with lifecycle regulators, the timeline would be 300 days. Under certain circumstances, the Minister could set the review to a maximum of 600 days. The timeline would be determined at the end of the early planning phase on a project-by-project basis, taking into account the complexity of the project, the potential effects, public concerns, and opportunities for cooperation with other jurisdictions.
(1) If the Minister refers the impact assessment of a designated project to a review panel, the review panel must, subject to subsection (2), submit the report with respect to the impact assessment of the designated project to the Minister no later than 600 days after the day on which the Minister appoints to the panel the minimum number of members required.
The proposed Impact Assessment Act would allow the Agency to delegate 29 an assessment, in whole or in part, to another jurisdiction. For example, another jurisdiction could take on preparation of part of an assessment report based on the results of both jurisdictions’ analyses. Delegation could also facilitate cooperation with another jurisdiction that lacks the capacity to assess all aspects of a project, but has interest and expertise in specific areas related to the project. Delegation is a tool to improve the efficiency and effectiveness of the assessment process, while maintaining the ability for each jurisdiction to retain their respective decision-making authorities.
The Agency may delegate to any person, body or jurisdiction (…) the carrying out of any part of the impact assessment of the designated project and the preparation of the report with respect to the impact assessment of the designated project.
The Impact Assessment Act would include additional measures to provide greater transparency with respect to notification of proposed projects on federal lands and outside Canada as well as decisions related to those projects.
To ensure that non-designated projects on federal lands 82 are adequately assessed, new requirements and transparency measures are proposed. New transparency requirements would include the requirement to publish both a notice of a proposed project and a decision on the significance of effects on the Agency website. Additionally, federal lands assessments would include a 30 day public comment period and be required to consider a set of mandatory factors (e.g., adverse impacts on the rights of Indigenous peoples, Indigenous knowledge, community knowledge, comments received from the public, mitigation measures etc.).
In addition, as part of the public consultations on what type of projects would be required to undergo an impact assessment under the proposed Impact Assessment Act, projects on federal lands, including reserve lands, will be examined to ensure that appropriate projects are included for impact assessments.
An authority must not carry out a project on federal lands, exercise any power or perform any duty or function conferred on it under any Act of Parliament other than this Act that could permit a project to be carried out, in whole or in part, on federal lands or provide financial assistance to any person for the purpose of enabling that project to be carried out, in whole or in part, on federal lands, unless
(a) the authority determines that the carrying out of the project is not likely to cause significant adverse environmental effects; or
(b) the authority determines that the carrying out of the project is likely to cause significant adverse environmental effects and the Governor in Council decides, under subsection 90(3), that those effects are justified in the circumstances.
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