Step 4: Decision-making

The proposed Impact Assessment Act is introducing substantial changes to decision making for designated projects. The concept of public interest would be at the center of decisions related to designated projects that are subject to impact assessment.

Objectives:

  • Timely decisions in public interest
  • Decisions are transparently reported

Key Actions during this Phase:

Minister:

  • Determines whether the adverse effects within federal jurisdiction are in the public interest for impact assessments conducted by the Agency
  • May choose to refer the determination of public interest for an impact assessment conducted by the Agency to Governor in Council
  • Issues a Decision Statement that informs the proponent of the decision, enforceable conditions and the reasons for the decision for all designated projects

Governor in Council:

  • Determines whether the adverse effects within federal jurisdiction are in the public interest for impact assessments conducted by a review panel
  • Determines whether the adverse effects within federal jurisdiction are in the public interest when the Minister has referred the decision for an impact assessment conducted by the Agency

Agency:

  • Makes public the Decision Statement and reasons for decision on the Agency website

Overview

Public Interest Decision

Currently, under the Canadian Environmental Assessment Act, 2012, the decision at the end of an environmental assessment is whether the designated project is likely to cause significant adverse environmental effects within federal jurisdiction of a designated project are likely to be significant. The Impact Assessment Act would require that the impact assessment report identify the positive and negative environmental, health, social and economic effects that the designated project is likely to cause. For the purposes of decision-making 60, the report would indicate those effects which are adverse and under federal jurisdiction. The report would also indicate adverse effects that would directly result from other federal decisions about the project.

Section 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 authorized by section 31, the Minister must

(a) 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, in the public interest;

The Minister or the Governor in Council must then decide whether the project’s adverse effects, that are within federal jurisdiction or that are directly linked or incidental to other federal decisions about the project, are within the public interest. The public interest decision would be based on the impact assessment report and a consideration of the following factors 63:

  • the designated project’s contribution to sustainability;
  • the extent to which the effects within federal jurisdiction or that would directly result from other federal decisions about the project are adverse;
  • mitigation measures (e.g., use of renewable energy to reduce greenhouse gas emissions);
  • the impact the designated project may have on any Indigenous groups that may be affected and the impact on their rights;
  • whether the effects negatively or positively affect the Government of Canada’s ability to meet its environmental obligations and climate change related commitments (e.g., commitments under the Paris Agreement).

Section 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:

(a) the extent to which the designated project contributes to sustainability;

(b) the extent to which the adverse effects within federal jurisdiction (…) are adverse;

(c) the implementation of mitigation measures (…);

(d) the impact that the designated project may have on any Indigenous group (…); and

(e) 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 commitment in respect of climate change.

For assessments conducted by the Impact Assessment Agency of Canada, the Minister makes the public interest decision but has discretion to refer 62 this decision to the Governor in Council. For all impact assessments conducted by a review panel, the Minister must refer all public interest decisions to the Governor in Council.

Section 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, in the public interest.

To provide greater transparency 65, the decision statement must include the reasons for the decision, including an explanation of how the report and the public interest factors were considered.

Decision Statements

The Minister of Environment and Climate Change would continue to issue decision statements to proponents. Decision statements contain the public interest decision made by either the Minister or the Governor in Council, the project decision, enforceable conditions with which the proponent must comply, reasons for the decision, and an expiry date for the decision statement in the event the proponent does not substantially begin the project in a certain time period. Conditions in decision statements for designated projects that are also regulated by the Canadian Energy Regulator would continue to be incorporated into the license or permit of the respective life-cycle regulator. For designated projects that are regulated by the Canadian Nuclear Safety Commission, the Minister may designate any conditions that are included in the decision statement to be part of the license issued by the Canadian Nuclear Safety Commission.

Section 65

(1) The Minister must issue a decision statement to the proponent of a designated project that

(a) 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;

Section 66

The Agency must post on the Internet site any decision statement that the Minister issues under section 65.

The Canadian Environmental Assessment Act, 2012 does not include provisions that would allow for amendments or changes to be made to decision statements once they are issued. In order to provide flexibility and allow for adaptive management, the new Act would provide the Minister with the authority to amend decision statements 68, including adding, removing or amending conditions. This authority does not allow the Minister to change the public interest decision, and could only be exercised if newly amended conditions will not increase the adverse effects caused by the project. This would provide the flexibility required to change conditions during project implementation if needed.

Section 68

(1) The Minister may amend a decision statement, including to add or remove a condition, to amend any condition or to modify the designated project’s description. However, the Minister is not permitted to amend the decision statement to change the decision included in it.

Timelines

The Impact Assessment Act includes time limits for the issuance of decision statements.

The Minister must issue a decision statement no later than 30 days 65 after the impact assessment report is posted to the website. If the public interest decision was made by the Governor in Council, the decision statement must be issued no later than 90 days 65 after the impact assessment report is posted to the website.

Section 65

(3) When a Minister makes a determination under paragraph 60(1)(a), he or she must issue the decision statement no longer than 30 days after the day on which the report with respect to the impact of a designated project, or a summary of that report, is posted on the Internet site.

(4) When the Governor in Council makes a determination under section 62, the Minister must issues the decision statement no later than 90 days after the day on which the report with respect to the impact assessment of the designated project, or a summary of that report, is posted on the Internet site.

The Impact Assessment Act also requires that the Minister, after considering any views of the proponent, establish a time period within which the proponent must substantially begin 70 the designated project. If the proponent does not substantially begin within that period then the decision statement will expire. The Minister may extend the period by any reasonable amount of time.

Section 70

(1) The Minister must, after considering any views provided by the proponent on the matter, establish the period within which the proponent must substantially begin to carry out the designated project.

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