ideas and resources for the responsibility advocate

The Government of Canada has released its Budget Implementation Act, 202, No. 1, which includes a suite of proposed amendments to the Impact Assessment Act (the Act), the legislation that establishes Canada’s federal impact assessment (IA) process. 

As expected, the proposed amendments focus mainly on clarifying the applicability of the Act to projects and effects within federal jurisdiction, particularly at decision-making stages.  These changes are consistent with what the Government has been signaling since the Supreme Court of Canada reference decision came out in the Fall.

There are also a few housekeeping amendments, relatively minor changes that clarify roles and the scope of responsibilities at various steps in the process.  For example, the amendments would clarify that the Governor in Council can indeed consider mitigation measures when deciding whether adverse effects that may be significant are justified in the public interest.  These amendments appear to reflect lessons learned from judicial reviews, completed assessments, and other modes of feedback.

Others will dissect these specific changes.  In keeping with my own work of late, I am keenly interested in whether and how the amendments may contribute to “streamlining” the federal IA process, and that is what I focus on here.  And I was pleased to see proposed amendments that offer some promise of improving process efficiency and timeliness.

Making the Detailed Project Description Discretionary

Under the existing Act, a proponent must, in the Planning Phase, first submit an Initial Project Description, which the Impact Assessment Agency of Canada (IAAC) makes available for public comment.  IAAC then prepares a summary of issues raised during the consultation, to which the proponent must respond, explaining how they intend to address those issues.  The proponent must also then submit a Detailed Project Description.  The information required to be submitted in the Project Descriptions is specified by regulation.  It is largely on the basis of that information that IAAC decides whether an IA is required for the project.  However, this step-wise process is unnecessarily redundant – the information required in the Detailed Project Description is highly duplicative of what was already provided in the Initial Project Description.  Moreover, both Project Descriptions essentially constitute mini assessments of the project, describing its potential effects – all information that will by necessity be repeated in an Impact Statement, if an IA is deemed to be required.

The proposed amendments would enable IAAC to require a proponent to provide a Detailed Project Description only if the additional detail is deemed necessary to make the decision as to whether an IA is required.  This discretionary decision could save considerable time and resources for both the proponent, who prepares the DPD, and IAAC and supporting federal authorities, who must review it.  

Greater Reliance on Existing Mechanisms for Review

Other proposed amendments reflect the Government’s drive to apply the principle of “one project, one review.”  In the past, this principle was more commonly articulated as “one project, one assessment,” a notion that was broadly accepted, if not always successfully or consistently implemented.  Expanding this principle beyond assessment, to consider other mechanisms for review, such as permitting, is something I have long advocated, and I am pleased to see it manifest in these amendments.  IA is not the only tool in the toolbox for addressing potential adverse effects!

The proposed amendments would allow IAAC to decide that a federal IA is NOT required if there is a “means other than an impact assessment” that would permit a jurisdiction – which includes other federal authorities, provinces, co-management bodies, and Indigenous governing bodies, among others – to address the adverse federal effects that may be caused by the project.  This means, for example, that IAAC could take into account and rely on the robust regulatory framework that exists for certain sectors, such as transportation.

Similar amendments would allow the Minister to consider means other than IA when deciding whether to designate a project by order.

These amendments take a broader look at the whole legislative and regulatory framework that exists in Canada and offers a path to greater intra- and inter-jurisdictional collaboration, repurposing the old notion of the ‘best-placed lead authority’ to consider the best-suited process for review.  This is a good step.  

A Missed Opportunity

Even with these promising changes, however, the amendments fall short of what is needed.  In my view, the Government of Canada missed an opportunity to make key amendments to the Act that would facilitate the urgently needed transition to a more sustainable economy and society.

As I have previously written, today’s IA frameworks, born of well-founded intentions to foster sustainability and protect the natural and human environment, often hinder the advancement of projects that are critical to a sustainable future.

Last week, I chaired a session on streamlining IA at the annual conference of the International Association for Impact Assessment in Dublin, Ireland.  In my remarks, I noted that the most recent United Nations Climate Change Conference of the Parties (COP28) ended with an agreement to accelerate the shift away from fossil fuels to renewable energy and improved energy efficiency.  Achieving this rapid transition will require a substantial amount of critical minerals and investment in critical infrastructure.  For example, for governments to meet their electric vehicle adoption commitments, it has been estimated^[1] that as many as 388 new mines will be needed by 2030, including mines for lithium, nickel, cobalt, and other minerals.  While the specific number of new mines needed may be up for debate, the challenges it poses are not.

It can take 10 years or more to get a new mine approved – that puts timely achievement of the necessary energy transition into jeopardy.  The time it takes to assess and approve new critical minerals mining projects and other clean transition projects, like renewable energy projects and clean transportation infrastructure, must be shortened if we are to secure the materials and develop the infrastructure necessary for urgent climate action.

While the proposed amendments to the Impact Assessment Act offer some promise of efficiency, and Budget 2024 included a number of other initiatives for “Getting Major Projects Done,” one of the most effective mechanisms to expedite clean growth projects has been overlooked.  

The Act already contemplates non-application of the IA process when “the carrying out of the project [on federal lands] without delay is in the interest of preventing damage to property or the environment or is in the interest of public health or safety.”  Similar provisions are needed that allow the Governor in Council to establish an expedited process for clean transition projects of national importance.  The carrying out without delay of projects that enable rapid climate action is needed to mitigate the worst effects of climate change on people and the environment.  

Empowering the GIC to establish a truly streamlined process, one that focuses on key issues and leverages the full breadth and depth of Canadian expertise and experience to manage well-understood effects, working collaboratively with other jurisdictions and governing bodies, could cut through many of the bureaucratic and systemic barriers that stand in the way of timely project advancement.  

There is still time to amend the Budget Implementation Act to incorporate such provisions and I encourage the Government of Canada to do so.

I should, in closing, address the most commonly expressed concern about streamlining – that it will come at the expense of consultation with and participation of Indigenous peoples and the public.  To be clear, as an IA practitioner, it is my view that the challenge of how to expedite clean transition projects without compromising the protection of local communities, including Indigenous peoples, and the environment on which they and we rely is one of the most pragmatic and important we now face.  We must work together to find ways to expeditiously and responsibly address the climate crisis that threatens us all.

^[1] https://www.fraserinstitute.org/studies/can-metal-mining-match-the-speed-of-the-planned-electric-vehicle-transition