Canadian Impact Assessment Act, Regulations and the Duty to Consult

The proposed Canadian Impact Assessment Act (“CIAA”) introduced this February has been a topic of discussion and debate over the past few months, with many wondering how it will work, whether it will be effective, and if it should be changed.

However, one aspect of the proposed CIAA that deserves particular attention are the regulations that will underpin this legislation – namely the Regulations Designating Physical Activities (the “Project List Regulation”) and the Information Requirements and Time Management Regulations (the “Information Regulations”).

These two regulations play a critical role in determining which projects will be subject to an impact assessment, and what the impact assessment will look like.  Moreover, given that the Crown often relies on the assessment process to discharge its duty to consult, these two regulations may also have implications for the Crown consultation process, so their development should not be overlooked.

Information Regulation

The Information Regulation will set out what information a proponent will need to provide to the Canadian Impact Assessment Agency during the early planning phase of a potential impact assessment.  This is important, as this information will be used to shape the overall impact assessment process, and may provide the basis for deciding whether a project will in fact be required to undergo an impact assessment.

This information will also be used as the basis for certain consultation decisions, including what level and scope of consultation required for a Project.  It is therefore important that the Information Regulation contains language that ensures that section 35 rights are considered in a meaningful way.

Project List Regulation

When the Harper Government introduced CEAA 2012, one of the major changes that was made was how federal assessment are triggered.  Prior to CEAA 2012, all activities that required a federal approval or authorization required a federal environmental assessment, unless specifically excluded.  Under CEAA 2012, this was changed to the Project List approach, whereby only those projects on the project list would require an assessment. The Project List approach has been the subject of criticism, particularly as CEAA 2012 significantly reduced the number of assessments conducted by the federal government.

While the approach under CIAA is to maintain the use of the Project List approach, the government is currently undertaking a review of the projects that are currently on this list to determine what projects should remain, what projects should be removed, and what project should be added.

The Project List Regulation will effectively act as the gatekeeper to the impact assessment process, delineating which projects will have to undergo federal assessments, and which will not. Not only is this important for ensuring that those projects with potential adverse environmental impacts undergo review, but it is also important as the assessment process is often used by the federal government to discharge its duty to consult. When undertaken properly, an environmental assessment can be an effective way of increasing indigenous participation in decision making.  It is also an important tool for gaining information about impacts of a Project on section 35 rights.

When a Project is not required to undergo an assessment, how consultation takes place, and how information with respect to those projects will be gathered, becomes much less clear.  As such, what Projects are included in the Project List Regulation have important implications for the consultation process.

The government is currently seeking public feedback on their approaches to developing these two regulations, with the first round of comments due on June 1, 2018.  After this, a draft of the regulations will be developed, which will be subject to further comment.

While the federal government is attempting to restore public faith in the environmental assessment process through the implementation of CIAA, this new legislation will only be as effective as the regulations that support it.