By Richard Lindgren
On April 30, 2024, the Government of Canada tabled its massive Budget Implementation Act, 2024, which includes proposed changes to the Impact Assessment Act (IAA).
Enacted by Parliament in 2019, the IAA sets out robust participatory processes for gathering information and making decisions about significant adverse effects of large-scale “designated projects” (e.g., mines, pipelines, nuclear waste facilities, etc.) upon defined areas of federal jurisdiction (e.g., fisheries, migratory birds, aquatic species at risk, Indigenous matters, etc.).
However, the federal government is now proposing various IAA amendments which are largely intended to respond to the 2023 ruling by the Supreme Court of Canada (SCC) that most of the IAA (and the project list regulation) is unconstitutional under the federal/provincial division of powers in the Constitution Act, 1867. CELA lawyers represented three environmental groups which intervened in the SCC appeal in support of the IAA.
Many of the IAA changes currently being proposed by the federal government are relatively straightforward and, if enacted, they will:
- Revise the long title and preamble of the IAA to focus on “significant adverse effects within federal jurisdiction”.
- Amend the definition of “mitigation measures” and replace the current IAA definitions of “effects within federal jurisdiction” and “direct or incidental effects” with new definitions for “adverse effects within federal jurisdiction” and “direct or incidental adverse effects”.
- Shorten the stated purpose of the IAA and clarify the “mandate” of federal officials and authorities which exercise powers under the IAA.
- Reword the IAA prohibition that restricts proponents from proceeding with designated projects that may cause “adverse effects within federal jurisdiction” unless certain conditions are met.
- Revise the IAA prohibition that constrains federal authorities from exercising powers or performing functions which enable designated projects to proceed unless certain conditions are met.
- Amend the Minister’s power to designate non-listed physical activities under the IAA if the activity may cause “adverse effects within federal jurisdiction” or “direct or incidental adverse effects”.
- Enhance the notification, documentation, and procedural requirements of the upfront screening decision on whether an impact assessment should be required for a specific designated project under the IAA.
- Revise the Minister’s power to substitute another jurisdiction’s assessment process for the impact assessment required under the IAA under certain conditions.
- Clarify review panels’ duties, time limits, and extensions of time limits under the IAA.
- Empower the Minister to enter into review panel agreements with regulators under the Nuclear Safety and Control Act or Canadian Energy Regulator Act.
- Restructure the authority of the Minister or Cabinet to decide whether a project’s “adverse effects with federal jurisdiction” or “direct or incidental adverse effects are likely to be significant.
- Amend the list of factors to be considered when the Minister or Cabinet is determining if the project’s likely significant “adverse effects within federal jurisdiction” or “direct or incidental adverse effects” are justified in the public interest.
- Clarify the Minister’s power to impose “appropriate” binding conditions and to issue decision statements regarding significant “adverse effects within federal jurisdiction” or “direct or incidental adverse effects”.
CELA notes that the proposed IAA amendments do not reduce or eliminate the long list of factors to be considered in an impact assessment (section 22 of the IAA). CELA supports the continued application of these content requirements, especially since there is nothing in the SCC opinion that necessitates changes to the broad scope of an impact assessment once triggered under the IAA.
Nevertheless, CELA anticipates that the proposed IAA amendments will result in a narrowly framed project review/approval process that applies to fewer projects and is more focused on impact mitigation rather than sustainability assessment. In this regard, the amended IAA will continue to closely resemble its much-criticized predecessor, the Canadian Environmental Assessment Act, 2012, rather than the “next generation” statute advocated in 2016 by CELA and other groups when an independent Expert Panel was reviewing options for improving federal environmental assessment processes.
After the SCC opinion was released, CELA and other environmental groups submitted a joint letter to Prime Minister Trudeau to set out principles and approaches that should drive the drafting of IAA amendments. Among other things, the letter specifically requested that greenhouse gas emissions (GHGE) be included within the revised IAA definition of “effects within federal jurisdiction.”
Similarly, in a previous blog, CELA reviewed the SCC’s IAA opinion and raised concerns about whether – or to what extent – an amended IAA can be used as an environmental planning mechanism for addressing climate change impacts, particularly GHGE from major resource development activities (i.e., oilsands projects).
CELA’s blog concluded that the federal government should invoke and rely upon its exclusive jurisdiction over criminal law (which unfortunately was not argued by the government at the SCC appeal, nor was it mentioned in the SCC’s majority opinion):
In our view, GHGE have, in fact, been recognized under federal law as having adverse federal effects since the mid-2000s. The Canadian Environmental Protection Act (CEPA) designates and regulates greenhouse gases (e.g., carbon dioxide, methane, nitrous oxide, etc.) as toxic substances, including their emission from electricity production from coal and natural gas or the oil and gas sector, some of the very sources identified as designated project categories in the IAA project list regulations. The constitutional authority for federal regulation of toxic substances under CEPA is the criminal law power as set out in the SCC’s 1997 judgment in Hydro-Quebec, which was subsequently followed by the Federal Court of Appeal in Syncrude to uphold federal renewable fuels regulations under CEPA.
It therefore appears to be necessary and appropriate for any future amendments to the IAA to be drafted with this criminal law precedent in mind, and the statute’s definition of “effects within federal jurisdiction” should be revised accordingly. The unsatisfactory alternative may be a narrow federal impact assessment law that is unable to address what the SCC itself has acknowledged to be both an “existential challenge” and “a threat to the future of humanity.”
However, given the nature and scope of the IAA changes now being advanced by the federal government, it appears to CELA that insufficient consideration has been given to utilizing Parliament’s criminal power as another basis for designating projects and making decisions about their GHGE under the IAA.
For example, the proposed definition of “adverse effects within federal jurisdiction” makes no reference to GHGE or climate change impacts. Similarly, the proposed re-wording of the public interest factors in section 63 of the IAA will no longer require decision-makers to consider whether the project’s likely effects will “hinder” Canada’s ability to meet its environmental obligations and climate change commitments. In our view, these and other problematic proposals should be revisited and revised during the forthcoming Parliamentary process.
In the coming weeks, CELA will prepare and circulate a more detailed legal analysis of the proposed IAA changes (including the extensive transitional provisions). This analysis will also recommend certain changes to the IAA amendments to address climate change and other matters of public interest in an effective, enforceable, and equitable manner under the IAA.
Image courtesy of @manfredxy via Canva.com
Blog: Federal Government Proposes Changes to the Impact Assessment Act
By Richard Lindgren
On April 30, 2024, the Government of Canada tabled its massive Budget Implementation Act, 2024, which includes proposed changes to the Impact Assessment Act (IAA).
Enacted by Parliament in 2019, the IAA sets out robust participatory processes for gathering information and making decisions about significant adverse effects of large-scale “designated projects” (e.g., mines, pipelines, nuclear waste facilities, etc.) upon defined areas of federal jurisdiction (e.g., fisheries, migratory birds, aquatic species at risk, Indigenous matters, etc.).
However, the federal government is now proposing various IAA amendments which are largely intended to respond to the 2023 ruling by the Supreme Court of Canada (SCC) that most of the IAA (and the project list regulation) is unconstitutional under the federal/provincial division of powers in the Constitution Act, 1867. CELA lawyers represented three environmental groups which intervened in the SCC appeal in support of the IAA.
Many of the IAA changes currently being proposed by the federal government are relatively straightforward and, if enacted, they will:
CELA notes that the proposed IAA amendments do not reduce or eliminate the long list of factors to be considered in an impact assessment (section 22 of the IAA). CELA supports the continued application of these content requirements, especially since there is nothing in the SCC opinion that necessitates changes to the broad scope of an impact assessment once triggered under the IAA.
Nevertheless, CELA anticipates that the proposed IAA amendments will result in a narrowly framed project review/approval process that applies to fewer projects and is more focused on impact mitigation rather than sustainability assessment. In this regard, the amended IAA will continue to closely resemble its much-criticized predecessor, the Canadian Environmental Assessment Act, 2012, rather than the “next generation” statute advocated in 2016 by CELA and other groups when an independent Expert Panel was reviewing options for improving federal environmental assessment processes.
After the SCC opinion was released, CELA and other environmental groups submitted a joint letter to Prime Minister Trudeau to set out principles and approaches that should drive the drafting of IAA amendments. Among other things, the letter specifically requested that greenhouse gas emissions (GHGE) be included within the revised IAA definition of “effects within federal jurisdiction.”
Similarly, in a previous blog, CELA reviewed the SCC’s IAA opinion and raised concerns about whether – or to what extent – an amended IAA can be used as an environmental planning mechanism for addressing climate change impacts, particularly GHGE from major resource development activities (i.e., oilsands projects).
CELA’s blog concluded that the federal government should invoke and rely upon its exclusive jurisdiction over criminal law (which unfortunately was not argued by the government at the SCC appeal, nor was it mentioned in the SCC’s majority opinion):
In our view, GHGE have, in fact, been recognized under federal law as having adverse federal effects since the mid-2000s. The Canadian Environmental Protection Act (CEPA) designates and regulates greenhouse gases (e.g., carbon dioxide, methane, nitrous oxide, etc.) as toxic substances, including their emission from electricity production from coal and natural gas or the oil and gas sector, some of the very sources identified as designated project categories in the IAA project list regulations. The constitutional authority for federal regulation of toxic substances under CEPA is the criminal law power as set out in the SCC’s 1997 judgment in Hydro-Quebec, which was subsequently followed by the Federal Court of Appeal in Syncrude to uphold federal renewable fuels regulations under CEPA.
It therefore appears to be necessary and appropriate for any future amendments to the IAA to be drafted with this criminal law precedent in mind, and the statute’s definition of “effects within federal jurisdiction” should be revised accordingly. The unsatisfactory alternative may be a narrow federal impact assessment law that is unable to address what the SCC itself has acknowledged to be both an “existential challenge” and “a threat to the future of humanity.”
However, given the nature and scope of the IAA changes now being advanced by the federal government, it appears to CELA that insufficient consideration has been given to utilizing Parliament’s criminal power as another basis for designating projects and making decisions about their GHGE under the IAA.
For example, the proposed definition of “adverse effects within federal jurisdiction” makes no reference to GHGE or climate change impacts. Similarly, the proposed re-wording of the public interest factors in section 63 of the IAA will no longer require decision-makers to consider whether the project’s likely effects will “hinder” Canada’s ability to meet its environmental obligations and climate change commitments. In our view, these and other problematic proposals should be revisited and revised during the forthcoming Parliamentary process.
In the coming weeks, CELA will prepare and circulate a more detailed legal analysis of the proposed IAA changes (including the extensive transitional provisions). This analysis will also recommend certain changes to the IAA amendments to address climate change and other matters of public interest in an effective, enforceable, and equitable manner under the IAA.
Image courtesy of @manfredxy via Canva.com
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