Archive for the ‘ Impact Assessment ’ Category

The Long-Awaited List

Today, Prime Minister Carney is scheduled to announce the first tranche of projects to be designated as national interest projects (NIPs) under the new Building Canada Act (BCA).  The list is expected to include (based on reporting by CBC and the Globe & Mail):

  • expansion of LNG Canada in Kitimat, BC;
  • the Darlington New Nuclear Project in Clarington, ON;
  • the Contrecœur container terminal project at the Port of Montreal;
  • the McIlvenna Bay Copper Mine Project in Saskatchewan; and
  • the expansion of the Red Chris Mine in northwestern BC.

Ostensibly, the point of designation under the BCA is to expedite the federal impact assessment (IA) and permitting process for major projects considered to be of national importance.  Viewed in this light, some of the selected projects are a bit puzzling.

The Red Chris Mine expansion, for example, does not actually have any federal legislation triggers according to the proponent’s application to amend its provincial Environmental Assessment Certificate.  It’s therefore unclear how NIP designation under the BCA would facilitate this project.  British Columbia had already announced, back in February, that it will be fast-tracking the provincial environmental assessment and permitting for this project.  (Of note, the expansion will also requires the consent of the Tahltan Central Government pursuant to a decision-making and consent agreement between the Province and that First Nation.)

The McIlvenna Bay mining project is another curious selection.  That project is also not subject to a federal IA.  It falls below the production threshold specified in the Physical Activities Regulation under the Impact Assessment Act and so is not a ‘designated project’ for the purposes of that Act.  Transport Canada has already issued issued an approval under the Canadian Navigable Waters Act for a component of the project.  According to the proponent’s provincial environmental impact statement, a Fisheries Act authorization is not required, and its website describes the project as already “permitted” and under construction, so, again, it’s unclear what advantage NIP designation brings to this project.

The Contrecœur project already completed the federal IA process back in 2021, so its designation as a NIP would appear to have no benefit in that regard.  However, the proponent, the Montréal Port Authority, only just submitted its application for authorization under the Fisheries Act, so the presumptive approval of that application (as well as any that may be required under the federal Species at Risk Act) may be viewed as the main reason underlying the project’s designation in the first tranche.  While the project was deemed not likely to have significant adverse environmental effects (taking mitigation into account) at the IA stage, potential adverse effects on the endangered copper redhorse, a fish species listed in Schedule I of the federal Species at Risk Act, among other fish species of conservation concern, were noted in the assessment report.  As it has taken a further 4 ½ years after the IA stage just to complete the Fisheries Act application, let alone securing the actual authorization, the project certainly seems a reasonable candidate for any expediting that NIP designation might afford.  It will be interesting to see how long it takes to finalize the federal permitting, especially whether it takes the full two years that has been voiced as the target approval completion timeline for NIPs.

That leaves the LNG Canada expansion and the Darlington New Nuclear Project.  

I expect the process for review of the LNG Canada expansion will draw heavily on the outcomes of assessment and permitting already completed for the original project.  The federal Decision Statement (the decision document that follows completion of the federal IA process) for the original project was updated as recently as 2021, so the conditions of that decision would likely serve as a solid foundation for establishing conditions for the expansion.  This should, in theory, facilitate rapid decision-making even absent NIP designation.  With that foundation in place, this will be a true test case to see how quickly the Major Projects Office can get to issuing the deemed authorization decision document under the BCA.  

[Interestingly, two other LNG projects that are already in the federal assessment process, the Tilbury LNG Expansion Project and the Ksi Lisims LNG Project, were not designated as NIPs, perhaps because the assessments for those projects are being carried out by BC through a substituted process.]

The Darlington New Nuclear Project completed federal environmental assessment (EA) and secured the site preparation licence from the Canadian Nuclear Safety Commission (CNSC) back in 2012.  That licence was renewed in 2021 and site preparation commenced.  The proponent, Ontario Power Generation (OPG), applied to the CNSC for a licence to construct the first small modular reactor (SMR) in 2022.  However, changes in the proposed nuclear technology since the original EA was completed led CNSC to review the validity of the EA before proceeding with the licence application.  The EA was confirmed to be valid in 2024, and the CNSC issued the licence to construct in April 2025.  Three additional SMRs are proposed and subject to further licencing by the CNSC.  NIP designation of this project will presumably expedite this licencing process, though no light has yet been shed on the process the new Major Projects Office (MPO) will follow in this regard. 

[Folks at OPG might be experiencing a bit of déja vu today; through the original Major Projects Management Office (MPMO) initiative, established in 2007 by then PM Harper’s Conservative government, a whole-of-government approach was taken to facilitate the review of the project. A Project Agreement – signed in May 2009 by Natural Resources Canada, CNSC, the then Canadian Environmental Assessment Agency, the Canadian Transportation Agency, Fisheries and Oceans Canada, Transport Canada, Environment Canada, and (then) Indian and Northern Affairs – set out roles and responsibilities and guidelines for the length of each stage of the federal review process, including the EA, Indigenous consultation, and regulatory decision-making. How will the new MPO compare to the MPMO? We wait to see, with bated breath…]

2025
09/11
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Clean Energy
environment
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A National Interest Project Review Process in Ten Steps

On May 31, 2025, the federal government introduced the One Canadian Economy Act, Part 2 of which comprises the proposed Building Canada Act (BCA), setting out a process to identify and expedite the approval of major projects of so-called “national interest.”  There is much to unpack in the concepts of national interest projects, regulatory streamlining, and presumptive approvals – topics for further posts, perhaps – but for now we offer some initial thinking on how a review process under the BCA might look, to support collective discourse on its potential merits and shortcomings.

To this end, we provide a preliminary description of a potential review process, in ten steps, for national interest projects pursuant to the proposed BCA, as drafted, and highlight aspects that warrant further clarification or guidance through regulatory or other means in order to achieve the federal government’s stated two-year approval timeline.  The potential process steps are anticipated based on existing legislative regimes and past experience in federal impact assessment and permitting processes in Canada.  In general, in our view, every step of the process should be time-limited through regulation.

This post assumes the reader is already somewhat familiar with the national economic, political, and regulatory context within which the BCA has been proposed, and the typical federal impact assessment and permitting processes to which major projects are subject in Canada.

Step 1: Application for an Order

    A proponent (or another party, such as a federal authority) would presumably submit a request or an application for an Order to add a project to Schedule 1.  The BCA specifies, in section 6, factors that must be considered before making an Order, including the extent to which the project can:

    1. strengthen Canada’s autonomy, resilience and security;
    2. provide economic or other benefits to Canada;
    3. have a high likelihood of successful execution;
    4. advance the interests of Indigenous peoples; and
    5. contribute to clean growth and to meeting Canada’s objectives with respect to climate change.

    This list is fairly consistent with the criteria laid out in the First Ministers’ statement on building a strong Canadian economy and advancing major projects issued following the First Ministers meeting in Saskatoon on June 2, 2025. 

    Reasonably then, an application should describe the extent to which the project would support those factors.  The application could also identify the Indigenous groups potentially affected by the project, and perhaps also the anticipated effects on those groups and any outcome of consultation with those groups undertaken prior to an application being made.  An application should also identify all the relevant federal authorizations that are likely to be required, which would – if the project is deemed a national interest project – be included in the consolidated “national interest” authorization document pursuant to section 7(1) of the BCA.  

    It would make sense for regulations to be established under the BCA to specify the Order application information requirements, similar to how certain information requirements are specified in the Information and Management of Time Limits Regulations under the Impact Assessment Act (IAA).

    Step 2: Minister consults on the application for an Order and makes a recommendation to GIC

      The Minister (it is as yet unclear which Minister this would be) would consult federal authorities (FAs), provincial or territorial governments, and potentially affected Indigenous groups regarding the application for an Order and make a recommendation to the Governor in Council (GIC) on whether an Order should be issued.  We anticipate this would be an opportunity for those parties to provide further views on the extent to which the project can (or cannot, as the case may be) support the relevant factors.

      Step 3: GIC Order

      Based on the Minister’s recommendation, we assume for the purposes of this discussion that the GIC would amend Schedule 1 of the BCA, by Order, adding the project as a national interest project.

      Step 4: Requirements specified and coordinated?

      The BCA reinforces that the proponent must “take all measures,” “provide any information,” and “pay fees” required in relation to the various authorizations to be included in the national interest authorization document (see sections 6(2) and 7(2)(a) of the BCA).  In other words, the processes of review that would normally be undertaken in relation to federal permitting would still occur:  proponents would still have to submit the information required to support, say, an application for a Fisheries Act authorization or a Canadian Navigable Waters Act approval.

      For projects that are also designated projects under the IAA, the BCA would eliminate the Planning Phase of a federal impact assessment (IA), but the requirement for the Impact Assessment Agency of Canada (IAAC) to provide the proponent with tailored impact statement (IS) guidelines (TISG), among other things, and for the proponent to provide an IS that meets those guidelines would remain.  

      This is an aspect of the BCA that begs for immediate improvement:  the information requirements for a federal IA and the suite of federal permits that will likely be needed for any major project of national interest are almost certain to overlap.  The BCA should allow for all the relevant information requirements to be consolidated into a single, project-specific “guidelines” document that eliminates duplication, redundancy, and conflict.  The BCA already contemplates (in section 20) a coordinating Office role that could facilitate this task.  

      At the very least, absent this kind of coordinated approach, the existing TISG template currently used by IAAC should be revised to remove information requirements that would otherwise be duplicative with the information requirements of other permitting FAs.

      Step 5: Proponent Submission(s)

      Ideally, as noted above, a single, coordinated submission by the proponent will meet the needs of all FAs, including IAAC, to be consulted by the Minister in establishing conditions: “one project, one review,” being the policy objective, after all.

      Step 6: Conformity Review

      In this single submission approach, the process administrator (i.e., the Coordinating Office (CO)) would presumably coordinate the review of the proponent’s submission for conformity with the information requirements.  The scope of additional information requests (IRs) should be limited by regulation to the matters directly relevant to and necessary for the development of conditions for the project.

      Step 7: Submission(s) deemed complete, technical review(s) proceed

      In an ideal world, the Coordinating Office would coordinate a single review of a single, consolidated submission, engaging all the relevant FAs (i.e., consulting with them) as needed to carry out a technical review of matters within their respective mandates and provide recommendations for necessary conditions.  Any Indigenous and public consultation that would normally occur during the review stage of IA and most permitting processes should also be coordinated.  Again, the scope of IRs should be limited by regulation to the matters directly relevant to and necessary for the development of conditions for the project.  

      Step 8: Draft conditions

      The Coordinating Office would likely compile conditions recommended by the various FAs, including IAAC, taking into account the outcome of consultation during the review phase.

      Step 9: Consultation

      Before issuing the national interest authorization document, the Minister, presumably supported by the Coordinating Office, must consult potentially affected Indigenous groups.  The proponent should also have an opportunity to review the draft conditions to evaluate their technical and economic feasibility and to advance alternative approaches if any condition is determined to be infeasible.  

      Step 10: Final document with conditions

        The final national interest authorization document would be issued (and made available to the public), incorporating all the final and feasible conditions deemed to be required. 

        The simplified diagram below illustrates this potential process.  Blue boxes indicate proponent actions, green indicate process actions led by either the Minister or the Coordinating Office (CO), and the orange box indicates action by the GIC.

        Interestingly, over a year ago, in my last post on this blog, I recommended the establishment of an expedited process for clean transition projects of national importance…

        2025
        06/10
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        An Opportunity Missed – Amending the Impact Assessment Act

        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

        2024
        05/01
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        When Environmental Responsibility Gets in the Way of … Environmental Responsibility

        Impact assessment or IA – also known as and including environmental assessment, environmental impact assessment, social impact assessment, health impact assessment, and a host of other discipline-specific variations along those lines – involves the critical evaluation of the consequences of past, present, and future development. Most commonly, IA is applied to specific projects to assist decision-makers and the public to understand potential environmental, social, cultural, health, and economic impacts – both positive and negative – and to inform the development of measures to mitigate adverse effects and enhance beneficial outcomes. The scope of IA has expanded from its original focus on the biophysical environment to encompass a broad range of issues reflective of today’s society, including gender and identity, Indigenous rights and interests, and inter-generational health and well-being, among other considerations. As such, IA, when done properly and well, is recognized as a vital tool in promoting sustainable development, and legislative frameworks have evolved to establish robust procedures for IA in many jurisdictions, including Canada.

        Unfortunately – ironically, even – 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.

        Earlier this week, we saw yet another example of the challenge facing Canada and other jurisdictions trying to advance clean energy transition projects: how do we thread the needle, balancing timely project development with legitimate objectives of environmental and community protection at the local level?

        https://www.reuters.com/markets/commodities/glencore-may-look-elsewhere-recycling-hub-after-italy-rejects-fast-track-2023-10-01/

        In this example, a regional-level government in Italy chose to require a full impact assessment instead of an available fast-track approval process for a proposed electric car battery recycling facility pilot project at an existing facility, prompting the proponent to consider looking elsewhere for more favourable conditions for its project.  This outcome illustrates how even a well-intentioned IA framework can undermine progress towards climate action goals, while also impacting global competitiveness.

        When an impact assessment process takes many years to complete, like it does here in Canada, it creates a real barrier to getting so-called “green” projects built, delaying the transition to a more sustainable economy and exacerbating the climate crisis we face. In very practical terms, there is a procedural conflict between what needs to be done to address global climate change – including rapid development and deployment of clean energy-related projects – and what needs to be done to protect local ecosystems and communities from the effects of those projects. The latter, too often, is typically accomplished through a complex process that has proven to be unwieldy and time-consuming, undermining the achievement of the former. This conflict is costing us, in economic opportunity, competitiveness, security, and well-being, both now and, through delayed mitigation of the effects of climate change, in the future.

        IA frameworks and other regulatory processes urgently need to be retooled to reconcile these two vital aspects of environmental responsibility. We need to develop and apply more timely and efficient ways to evaluate and implement green projects, drawing on our collective knowledge and experience in assessment – and especially management – of the environmental, social, cultural, health, and economic impacts of development.

        There is a tremendous breadth and depth of practical experience in Canada and elsewhere in this regard. We need to leverage this expertise to develop trusted, efficient, and expedited decision-making processes that respect and achieve both our local and global environmental goals.

        As I was writing this post, I was reminded of Janus, that ancient Roman mythological figure usually depicted with two faces. Janus is known as the god of change and transition, overseeing progress from one time to another, one state or condition to another. Surely there is a metaphor there: these two sides – faces, if you will – of environmental responsibility are part of the whole and both are essential for a successful transition to a clean energy future.

        2023
        10/05
        CATEGORY
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        Good Things

        Follow some of the links recommended below... Some are specifically relevant to Canadians, but many are of general interest. I'll update from time to time.