Last month, the federal government introduced a new piece of legislation (Bill C69) which overhauls the Federal Environmental Assessment, now called Impact Assessment.
Changes include a new Impact Assessment Act, replacing the Canadian Environmental Assessment Act, 2012 and a new Impact Assessment Agency of Canada replacing the Canadian Environmental Assessment Agency.
The Act broadens the scope of the assessment process and adds enhanced consultation with groups, particularly Indigenous groups that may be affected. Further, the scope of effects that will be taken into account is broader under the new regime. Significantly expanded factors include: traditional indigenous knowledge; alternative means of carrying out the designated project which are technically and economically feasible (including the use of best available technologies); the extent to which the project contributes to sustainability; the extent to which the proposed project’s effects contribute or hinder the Canadian Government’s ability to meet its environmental obligations and climate change commitments; and studies or plans conducted or prepared by a jurisdiction related to the proposed project.
Interestingly, “sustainability”, defined as “the ability to protect the environment, contribute to the social, economic well-being of the people of Canada and preserve their health in a manner that benefits future and present generations”, is now a mandatory consideration. And while this includes economic well-being, direct economic consideration is now missing from the extensive list of factors to consider. Resource companies tend to heavily promote the economic benefits their project will bring to a region. With this being substantially less important in the new assessment process, companies will need to be able to speak to a broader range of benefits.
The new Act grants the new Agency and the responsible minister much more discretion including a federal veto which gives the minister the power, before an assessment even commences, to make an order directing the new Agency not to conduct an assessment if the minister believes the proposed project would cause unacceptable effects. This part of the legislation has broad terms and lose definitions with very few limits to the minister’s discretion in forming an opinion, thus creating uncertainty for proponents.
The new Act incorporates a 180-day planning phase which includes public consultation and engagement of local jurisdictions, federal agencies and Indigenous people before the assessment begins. Although at 300 days, the legislated time is shorter than under the old Act, the project planning time is not included and there are still many opportunities for the minister to “stop the clock” during both the planning and assessment phases, leading to further uncertainty.
Anyone who has permitted a project in Canada recently will tell you it’s no walk in the park, and this legislation certainly doesn’t help with confidence or certainty. However, I am convinced good projects will still be allowed to go ahead for the betterment of Canada. But it is going to take a great deal of work for the proponents including transparent communication, oodles of consultation, a good relationship with regulators and significant patience.