Statement on the Interim Administration of the Impact Assessment Act Pending Legislative Amendments

Recognizing the importance of regulatory certainty to major project proponents, to Indigenous partners working with us in impact assessments, and to Canada’s investment climate, the Government of Canada is issuing this interim policy statement on the administration of the Impact Assessment Act:

Immediately following the Supreme Court of Canada’s issuance of its opinion on the constitutionality of the Impact Assessment Act (IAA), in a joint statement by the Minister of Environment and Climate Change and the Minister of Justice, the Government of Canada committed to make the legislative changes required to respect the Court’s opinion.

The Supreme Court’s guidance on the provisions that need to be changed to bring them into compliance with the Constitution is clear, and the Government will move quickly to amend the IAA.

The Supreme Court confirmed that the environment, and impact assessments in particular, are areas of shared jurisdiction between the federal and provincial legislatures under the Constitution. It underscored that it is open to Parliament and the provincial legislatures to exercise their respective powers over the environment harmoniously in the spirit of cooperative federalism.

This statement confirms that the federal government intends to do that under an amended Impact Assessment Act more clearly focused on the prevention of adverse environmental effects within federal jurisdiction, which was always the government’s core policy intent. The amended IAA will remain consistent with the United Nations Declaration on the Rights of Indigenous Peoples, and will continue to provide opportunities for meaningful engagement and participation of Indigenous Peoples in the assessment process, with the aim of securing their free, prior and informed consent. The amended IAA will also continue to include robust cooperation tools for working with provinces in a way that more clearly reflects the respective federal and provincial areas of focus.

In the interim, the Government recognizes that responsible development is critical to the prosperity of our country and that time is of the essence for projects currently in the impact assessment system. Therefore, the Impact Assessment Agency of Canada (Agency) remains ready to work collaboratively with proponents to continue to advance ongoing impact assessments of projects already in progress. The Agency will continue engagement with Indigenous partners, stakeholders and the public, and will continue to seek to work in close cooperation with the provinces on project assessments, with its emphasis clearly on the prevention of adverse effects in federal jurisdiction.

The Minister of Environment and Climate Change and the Agency will continue to respect the opinion of the Court, and will apply the interim measures below until amendments come into force to address the issues identified by the Court.

Our priority will be to seek to work with proponents and Indigenous partners to allow process continuity so that time is not lost to support responsible project development in Canada.

Guidance on specific provisions

The Impact Assessment Agency will review all designated projects currently in the planning or impact statement phases to provide its opinion on whether there is clear federal jurisdiction. Specifically, the Agency will apply the Supreme Court’s analysis of whether projects involve activities falling under a federal head of power or activities likely to have clear impacts on a federal head of power.

With respect to requests for discretionary designation decisions by the Minister of the Environment and Climate Change under section 9 of the IAA:

• No decisions to designate projects will be taken. Consideration of any new designation requests will only resume, as appropriate, once amended legislation is in force.
• For pending designation requests, where the Minister is of the opinion that designation would not be warranted under the IAA’s current provisions, that opinion will be communicated to proponents.

With respect to Agency screening under section 16, to determine whether a full impact assessment will proceed, the Agency will provide an opinion, with a focus on the potential for adverse effects in federal jurisdiction:

• Where the Agency is of the opinion that no impact assessment is required, this will be indicated to proponents, in order to provide certainty as early as possible.
• Where the Agency is of the opinion that an assessment would be warranted, this will be indicated to proponents to allow collaborative work to continue on an assessment.

The Agency remains ready to collaborate with proponents on gathering the information required to support assessments. This includes accepting initial project descriptions and beginning the planning phase for new projects from proponents who so choose. Guidelines and plans, including Tailored Impact Statement Guidelines, will continue to be issued by the Agency.

The Agency will continue to explore opportunities to maximize collaboration with provinces to take full advantage of provincial assessment of factors that they are examining so that federal assessments can focus more on potential adverse effects in areas of federal jurisdiction. Planning documents that have already been issued to proponents will be re-visited with the same lens.

The Agency will continue to meaningfully engage and consult with Indigenous Peoples through the assessment process, including on the potential adverse impact of designated projects on the exercise of Aboriginal and Treaty rights as recognized and affirmed in section 35 of the Constitution Act, 1982.

Regional assessments already underway will also continue, in cooperation with Indigenous groups, provinces and stakeholders. Regional assessments are an opportunity to better understand impacts of specific activities in particular areas, and do not involve decision making on specific projects.

Assessments that are ongoing under the Canadian Environmental Assessment Act, 2012 will be continued in a way that aligns with the Supreme Court’s opinion.