Information and Management of Time Limits Regulations: SOR/2019-283

Canada Gazette, Part II, Volume 153, Number 17

Registration

SOR/2019-283 August 1, 2019

IMPACT ASSESSMENT ACT

The Minister of the Environment, pursuant to section 112 of the Impact Assessment Act ^{footnote a}, makes the annexed Information and Management of Time Limits Regulations.

Ottawa, July 19, 2019

Catherine McKenna
Minister of the Environment

Information and Management of Time Limits Regulations

Information and Time Limit Management

Definition of Act

1 In these Regulations, Act means the Impact Assessment Act.

Suspension of time limits

2 For the purposes of any of subsections 9(5), 18(5), 28(9), 36(3) and 37(6) of the Act, a time limit may be suspended in respect of the following activities and in the following circumstances:

• (a) any activity related to the designated project, if the proponent submits a written request to the Minister in that regard;
• (b) the undertaking of studies or the collection of information by the proponent related to a change in the design, construction or operation plans for a designated project and the resulting effects of the change, if the Agency or the review panel, as the case may be, is of the opinion that the change would alter the potential effects of the project and there is not sufficient information available to it for the purpose of conducting the impact assessment or preparing the impact assessment report; and
• (c) the collection, by the Agency or the review panel, of any fees, charges or levies, costs or amounts referred to in section 76 of the Act if they are not paid by the proponent within the time limit set out in section 80 of the Act.

Information for initial description of project

3 For the purposes of subsection 10(1) of the Act, the information that is to be provided in the initial description of a designated project is set out in Schedule 1 and must

• (a) be representative of the project at the time the information is provided; and
• (b) include the information related to any option that the proponent is considering in respect of any item in the description of the project.

Information for detailed description of project

4 For the purposes of subsection 15(1) of the Act, the information that is to be provided in the detailed description of a designated project is set out in Schedule 2 and must

• (a) be representative of the project at the time the information is provided;
• (b) include the information related to any option that the proponent is considering in respect of any item in the description of the project; and
• (c) include the proponent’s responses to the issues raised during any consultation undertaken under section 12 of the Act.

Notice of commencement — documents

5 For the purposes of paragraph 18(1)(b) of the Act, the Agency must provide the proponent with the following documents:

• (a) tailored guidelines regarding the information or studies referred to in paragraph 18(1)(a) of the Act;
• (b) a plan for cooperation with other jurisdictions;
• (c) a plan for engagement and partnership with the Indigenous peoples of Canada;
• (d) a plan for public participation; and
• (e) a plan for the issuance of permits.

Information format and accessibility

6 Any information that is required to be submitted by a proponent under the Act must

• (a) be in a machine-readable format; and
• (b) include a plain-language summary of the information in English and in French.

Physical activities

7 For the purposes of paragraph 75(1)(a) of the Act, the designated physical activities are those that are set out in the schedule to the Physical Activities Regulations or that are designated by the Minister under section 9 of the Act.

Time limit — response to request for assessment

8 For the purposes of subsection 97(1) of the Act, the Minister must respond within 90 days after the day on which a request is received.

Repeal

9 The Prescribed Information for the Description of a Designated Project Regulations ^{footnote 1} are repealed.

Coming into Force

S.C. 2019, c. 28

10 These Regulations come into force on the day on which section 1 of An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigation Protection Act and to make consequential amendments to other Acts comes into force, but if they are registered after that day, they come into force on the day on which they are registered.

SCHEDULE 1

(Section 3)

Information Required in Initial Description of Designated Project

PART A

General Information

• 1 The project’s name, type or sector and proposed location.
• 2 The proponent’s name and contact information and the name and contact information of their primary representative for the purpose of the description of the project.
• 3 A summary of any engagement undertaken with any jurisdiction or other party, including a summary of the key issues raised and the results of the engagement, and a brief description of any plan for future engagement.
• 4 A list of the Indigenous groups that may be affected by the carrying out of the project, a summary of any engagement undertaken with the Indigenous peoples of Canada, including a summary of key issues raised and the results of the engagement, and a brief description of any plan for future engagement.
• 5 Any study or plan, relevant to the project, that is being or has been conducted in respect of the region where the project is to be carried out, including a regional assessment that is being or has been carried out under section 92 or 93 of the Act or by any jurisdiction, including by or on behalf of an Indigenous governing body, if the study or plan is available to the public.
• 6 Any strategic assessment, relevant to the project, that is being or has been carried out under section 95 of the Act.

PART B

Project Information

• 7 A statement of the purpose of and need for the project, including any potential benefits.
• 8 The provisions in the schedule to the Physical Activities Regulations describing the project, in whole or in part.
• 9 A list of all activities, infrastructure, permanent or temporary structures and physical works to be included in and associated with the construction, operation and decommissioning of the project.
• 10 An estimate of the maximum production capacity of the project and a description of the production processes to be used.
• 11 The anticipated schedule for the project’s construction, operation, decommissioning and abandonment, including any expansions of the project.
• 12 A list of
  • (a) potential alternative means of carrying out the project that the proponent is considering and that are technically and economically feasible, including through the use of best available technologies; and
  • (b) potential alternatives to the project that the proponent is considering and that are technically and economically feasible and directly related to the project.

PART C

Location Information

• 13 A description of the project’s proposed location, including
  • (a) its proposed geographic coordinates, including, for linear development projects, the proposed locations of major ancillary facilities that are integral to the project and a description of the spatial boundaries of the proposed study corridor;
  • (b) site maps produced at an appropriate scale in order to determine the project’s proposed general location and the spatial relationship of the project components;
  • (c) the legal description of land to be used for the project, including, if the land has already been acquired, the title, deed or document and any authorization relating to a water lot;
  • (d) the project’s proximity to any permanent, seasonal or temporary residences and to the nearest affected communities;
  • (e) the project’s proximity to land used for traditional purposes by Indigenous peoples of Canada, land in a reserve as defined in subsection 2(1) of the Indian Act, First Nation land as defined in subsection 2(1) of the First Nations Land Management Act, land that is subject to a comprehensive land claim agreement or a self-government agreement and any other land set aside for the use and benefit of Indigenous peoples of Canada; and
  • (f) the project’s proximity to any federal lands.
• 14 A brief description of the physical and biological environment of the project’s location, based on information that is available to the public.
• 15 A brief description of the health, social and economic context in the region where the project is located, based on information that is available to the public or derived from any engagement undertaken.

PART D

Federal, Provincial, Territorial, Indigenous and Municipal Involvement

• 16 A description of any financial support that federal authorities are, or may be, providing to the project.
• 17 A list of any federal lands that may be used for the purpose of carrying out the project.
• 18 A list of any jurisdictions that have powers, duties or functions in relation to an assessment of the project’s environmental effects.

PART E

Potential Effects of the Project

• 19 A list of any changes that, as a result of the carrying out of the project, may be caused to the following components of the environment that are within the legislative authority of Parliament:
  • (a) fish and fish habitat, as defined in subsection 2(1) of the Fisheries Act;
  • (b) aquatic species, as defined in subsection 2(1) of the Species at Risk Act; and
  • (c) migratory birds, as defined in subsection 2(1) of the Migratory Birds Convention Act, 1994.
• 20 A list of any changes to the environment that, as a result of the carrying out of the project, may occur on federal lands, in a province other than the province in which the project is proposed to be carried out or outside Canada.
• 21 With respect to the Indigenous peoples of Canada, a brief description of the impact — that, as a result of the carrying out of the project, may occur in Canada and result from any change to the environment — on physical and cultural heritage, the current use of lands and resources for traditional purposes and any structure, site or thing that is of historical, archaeological, paleontological or architectural significance, based on information that is available to the public or derived from any engagement undertaken with Indigenous peoples of Canada.
• 22 A brief description of any change that, as a result of the carrying out of the project, may occur in Canada to the health, social or economic conditions of Indigenous peoples of Canada, based on information that is available to the public or derived from any engagement undertaken with Indigenous peoples of Canada.
• 23 An estimate of any greenhouse gas emissions associated with the project.
• 24 A list of the types of waste and emissions that are likely to be generated — in the air, in or on water and in or on land — during any phase of the project.

PART F

Summary

• 25 A plain-language summary of the information that is required under items 1 to 24 in English and in French.

SCHEDULE 2

(Section 4)

Information Required in Detailed Description of Designated Project

PART A

Updated General Information

• 1 The project’s name, type or sector and proposed location.
• 2 The proponent’s name and contact information and the name and contact information of their primary representative for the purpose of the description of the project.

PART B

Planning Phase Results

• 3 A summary of the results of any engagement undertaken with any jurisdiction or other party, including a description of how the proponent intends to address the issues raised in the summary referred to in subsection 14(1) of the Act.
• 4 A summary of the results of any engagement undertaken with the Indigenous peoples of Canada, including
  • (a) a list of the Indigenous groups that may be affected by the project, including those groups that identified themselves during the planning phase as potentially being affected; and
  • (b) a description of how the proponent intends to address the issues raised in the summary referred to in subsection 14(1) of the Act, including any potential adverse impact that the project may have on the rights of the Indigenous peoples of Canada recognized and affirmed by section 35 of the Constitution Act, 1982.
• 5 Any study or plan, relevant to the project, that is being or has been conducted in respect of the region where the project is to be carried out, including a regional assessment that is being or has been carried out under section 92 or 93 of the Act or by any jurisdiction, including by or on behalf of an Indigenous governing body, if the study or plan is available to the public.
• 6 Any strategic assessment, relevant to the project, that is being or has been carried out under section 95 of the Act.

PART C

Project Information

• 7 A statement of the purpose of and need for the project, including any potential benefits.
• 8 The provisions in the schedule to the Physical Activities Regulations describing the project, in whole or in part.
• 9 A description of all activities, infrastructure, permanent or temporary structures and physical works to be included in and associated with the construction, operation and decommissioning of the project, including their purpose, size and capacity.
• 10 An estimate of the maximum production capacity of the project and a description of the production processes to be used.
• 11 The anticipated schedule for the project’s construction, operation, decommissioning and abandonment, including any expansions of the project.
• 12 A description of
  • (a) potential alternative means of carrying out the project that the proponent is considering and that are technically and economically feasible, including through the use of best available technologies; and
  • (b) potential alternatives to the project that the proponent is considering and that are technically and economically feasible and directly related to the project.

PART D

Location Information

• 13 A description of the project’s proposed location, including
  • (a) its proposed geographic coordinates, including, for linear development projects, the proposed locations of major ancillary facilities that are integral to the project and a description of the spatial boundaries of the proposed study corridor;
  • (b) site maps produced at an appropriate scale in order to determine the project’s general location and the spatial relationship of the project components;
  • (c) the legal description of land to be used for the project, including, if the land has already been acquired, the title, deed or document and any authorization relating to a water lot;
  • (d) the project’s proximity to any permanent, seasonal or temporary residences and to the nearest affected communities;
  • (e) the project’s proximity to land used for traditional purposes by Indigenous peoples of Canada, land in a reserve as defined in subsection 2(1) of the Indian Act, First Nation land as defined in subsection 2(1) of the First Nations Land Management Act, land that is subject to a comprehensive land claim agreement or a self-government agreement and any other land set aside for the use and benefit of Indigenous peoples of Canada; and
  • (f) the project’s proximity to any federal lands.
• 14 A description of the physical and biological environment of the project’s location based on information that is available to the public.
• 15 A description of the health, social and economic context in the region where the project is located, based on information that is available to the public or derived from any engagement undertaken.

PART E

Federal, Provincial, Territorial, Indigenous or Municipal Involvement

• 16 A description of any financial support that federal authorities are, or may be, providing to the project.
• 17 A description of any federal lands that may be used for the purpose of carrying out the project.
• 18 A list of the permits, licenses or other authorizations that may be required by jurisdictions that have powers, duties or functions in relation to an assessment of the project’s environmental effects.

PART F

Potential Effects of the Project

• 19 A description of any changes that, as a result of the carrying out of the project, may be caused to the following components of the environment that are within legislative authority of Parliament:
  • (a) fish and fish habitat, as defined in subsection 2(1) of the Fisheries Act;
  • (b) aquatic species, as defined in subsection 2(1) of the Species at Risk Act; and
  • (c) migratory birds, as defined in subsection 2(1) of the Migratory Birds Convention Act, 1994.
• 20 A description of any changes to the environment that, as a result of the carrying out of the project, may occur on federal lands, in a province other than the province in which the project is proposed to be carried out or outside Canada.
• 21 With respect to the Indigenous peoples of Canada, a description of any impact — that, as a result of carrying out the project, may occur in Canada and result from any change to the environment — on physical and cultural heritage, the current use of lands and resources for traditional purposes and any structure, site or thing that is of historical, archaeological, paleontological or architectural significance, based on information that is available to the public or derived from any engagement undertaken with Indigenous peoples of Canada.
• 22 A description of any change that, as a result of the carrying out of the project, may occur in Canada to the health, social or economic conditions of Indigenous peoples of Canada, based on information that is available to the public or derived from any engagement undertaken with Indigenous peoples of Canada.
• 23 An estimate of any greenhouse gas emissions associated with the project.
• 24 A description of any waste and emissions that are likely to be generated — in the air, in or on water and in or on land — during any phase of the project and a description of the plan to manage them.

PART G

Summary

• 25 A plain-language summary of the information that is required under items 1 to 24 in English and in French.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Executive summary

Issues

The IAA replaces the CEAA 2012 and establishes an impact assessment process to serve as a project planning tool, which takes into consideration the whole range of environmental, health, social and economic effects of projects. The new regime shifts away from decisions based solely on the significance of adverse environmental effects and will focus instead on whether the adverse effects in areas of federal jurisdiction are in the public interest. The Information and Management of Time Limits Regulations are required for the implementation of the IAA, prescribing a number of elements related to information and time management to provide certainty in the impact assessment process.

Background

In the 2015 Speech from the Throne, the Government of Canada committed to introducing a new environmental assessment process. The government launched a comprehensive process in June 2016 to review existing laws and seek Canadians’ input on how to improve environmental and regulatory processes. The review involved over 14 months of public, stakeholder and Indigenous consultations, expert panel reports and parliamentary studies and two parliamentary committees who heard from industry representatives, provincial and territorial authorities, Indigenous peoples, scientists, academics and the public from coast to coast.

As a result of the review, An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigation Protection Act and to make consequential amendments to other Acts (Bill C-69) received royal assent on June 21, 2019, with the IAA set to come into force on a date to be determined by Governor in Council.

The new impact assessment process will be led by the Impact Assessment Agency of Canada (the Agency). Where projects are regulated by lifecycle regulators such as the Canadian Energy Regulator, the Canadian Nuclear Safety Commission, and the Canada-Nova Scotia Offshore Petroleum Board and the Canada-Newfoundland and Labrador Offshore Petroleum Board (the Offshore Boards), the Impact Assessment Agency of Canada will work collaboratively with the lifecycle regulator to draw upon their expert capacity and ensure that safety and other key regulatory factors are considered as part of a single, integrated review.

Similar to the process under the CEAA 2012, impact assessments under the IAA are conducted of proposed physical activities that are “designated,” either through regulation or by the Minister.

A designated project will enter into the 180-day planning phase, in order to determine whether or not an impact assessment is required and, if so, plan for the assessment. The planning phase emphasizes opportunities for early engagement with Indigenous peoples, the public and stakeholders to identify and discuss potential effects and benefits early, leading to tailored impact statement guidelines, clarity on Indigenous and public engagement plans, and strengthened cooperation with provincial governments and other jurisdictions essential to achieving one project, one assessment.

The Agency must take into account the factors set out in section 16 of the IAA in deciding whether to require an impact assessment, including the following:

• Information provided by proponents in their initial and detailed Project description;
• Potential adverse effects within federal jurisdiction or that result from federal decisions about the project;
• Potential adverse impacts on Indigenous rights;
• Comments received from the public, other jurisdictions and Indigenous groups;
• Any relevant regional or strategic assessment or regional study carried out by a jurisdiction; and
• Other matters that the Agency considers relevant.

The decision of the Agency on whether an impact assessment is required and reasons for that decision will be made public. The Agency will make the determination on whether or not an assessment is required relatively early in the planning phase, in order to dedicate the greatest amount of time possible to planning the assessment, including developing the guidelines and plans required by the regulations.

The Government has also committed to deliver a modern, user-focused, public registry as a one-stop shop to provide Canadians with greater insight and engagement in impact assessments in support of transparency and public engagement.

The IAA includes new enabling powers for the Minister to establish a committee or to authorize the Agency to conduct regional or strategic assessments. These will provide a better understanding of the “bigger picture” outside of the context of individual project assessments, inform project assessments and decision-making and allow jurisdictions to better manage the cumulative effects of development.

Objective

The intent of the Information and Management of Time Limits Regulations is to enable key aspects of the impact assessment system to function, and to enhance clarity, transparency and predictability in the process.

Description

Criteria to suspend legislated timelines

Legislated time limits under the Impact Assessment Act will be strictly managed to keep the new process on track and predictable. The IAA provides the Agency with authority to suspend legislated timelines, only in accordance with criteria set out in the regulations. Authority to suspend timelines applies to the following time limits in the IAA:

• 180-day limit for the planning phase, in subsection 18(5) of the IAA;
• 45-day limit for the Agency to refer impact assessment to a review panel, in subsection 36(3) of the IAA;
• 300-day limit for an impact assessment by the Agency, and 300- to 600-day limit for an impact assessment by a review panel, in subsections 28(9), 37(6) and 37.1(2) of the IAA.
• 90-day limit for the Minister to respond to a request to designate a project, in subsection 9(5) of the IAA.

The suspension of timelines will not be automatic; when any of the criteria set out in the regulation arises, the Agency would have the discretion to decide whether or not to suspend the time limit in that instance. The IAA will also require the Agency to publicly post a notice, including reasons, when the time limit is suspended, and to post a notice when the time limit resumes. This provides greater accountability and transparency in the management of timelines.

This suspension acts to exclude the time taken to complete certain activities from the legislated timeline. Once the activity is completed, the timeline will resume. The regulations enable the suspension of timelines for three proponent-driven reasons, as follows:

• (i) If the proponent requests that the timeline be suspended, for any activity, until such time as the activity is completed.

This could be used, for example, during the planning phase in order for proponents to take the time they need to respond to the Summary of Issues. It could also be used in any circumstance where proponents may want additional time during the process. Proponents would make a request to the Agency in writing, indicating the activity for which the suspension is being requested. Time limits would resume once that activity is completed.

• (ii) For the proponent to provide information related to a design change, or change in construction or operation plans by the proponent that could change the potential impacts of the project.

This could be used to allow time for proponents to respond to information requested by the Agency or a Review Panel, following a design change proposed by the proponent. The Agency or review panel would request the information in accordance with information-gather powers set out in subsections 14(2), 19(3), 26(2), or section 38 of the IAA.

The regulatory text, combined with related provisions of the IAA, establish a number of limitations at the Agency’s discretion to suspend time limits in relation to a design change:

• It must relate to a design change proposed by the proponent;
• The suspension of the time limit would not be automatic when a design change is proposed;
• The time limit would only be suspended during the time taken by proponents to provide information, to the satisfaction of the Agency, related to the design change (i.e. following an information request);
• The design change would have to result in a change to the potential effects of the project and the information request would be limited to information needed to assess the change in potential effects; and
• The information would have to be necessary for the Agency or the review panel to complete its work.
  • (iii) In the event of non-payment by the proponent of recoverable costs, until such time as the payment is received.

Under the IAA, the Agency has the authority to recover costs from proponents, in accordance with any fees, charges or levies that are established by regulation. This authority includes the recovery of costs incurred from the time when the Agency receives the initial project description to the day on which the follow-up program in respect of the project is completed, for all types of impact assessments. The Cost Recovery Regulations established under the CEAA 2012 will continue to apply under the IAA until new cost recovery regulations are developed. The Cost Recovery Regulations currently provide for the recovery of costs incurred to support and conduct a review panel assessment, from the time an assessment is referred to a review panel until the decision statement is issued. The Agency has identified in its Forward Regulatory Plan that new cost recovery regulations will be developed for implementation on April 1, 2021.

The Information and Management of Time Limits Regulations enable the suspension of time limits if a payment required under the Cost Recovery Regulations is not made within 90 days. The timeline would resume once the debt is paid. In parallel, the IAA also provides that if a payment is not made within 90 days, the Agency or review panel may cease their activities in the impact assessment process until the debt is paid.

Information proponents must provide in the initial and detailed Project Description

The IAA requires proponents of designated projects to provide an initial Project Description to the Agency at the outset of the planning phase. The Agency will carry out engagement based on this information, and prepare a summary of the issues that it considers relevant to the assessment, informed by the issues raised by Indigenous peoples, stakeholders, other jurisdictions and the public during early engagement on the project and the expertise of federal departments. The IAA then requires the proponent to provide a response, indicating how the issues might be addressed, and to provide a detailed Project Description. Following this, the Agency will make a determination on whether or not an impact assessment of the project is required.

Schedules I and II of the regulations set out the information proponents are required to include in their initial and detailed Project Description, respectively. The same number of items on the same range of issues are required to be included in both the initial and detailed Project Descriptions, with differences in the level of detail that is required. The information is based on the project as proposed at the time the information is provided. The detailed Project Description also reflects the results of early engagement and any associated changes to the project information. These include information requirements related to

• The project’s type or sector, its objectives and potential benefits, and activities and phases associated with the project;
• The physical and biological setting, and health, social and economic setting in the region where the project is located;
• The project’s proposed location, proximity to federal and Indigenous lands, and potentially affected Indigenous groups;
• Any engagement and consultation undertaken by the proponent to date;
• Studies and plans that are relevant to the project, carried out under the IAA, and by other jurisdictions, including by or on behalf of Indigenous governing bodies; and
• Potential effects of the project within areas of federal jurisdiction.

The Agency will publish guidance materials to assist proponents in preparing their initial and detailed Project Description, informing the level of detail required and providing examples of the types of information to include respecting each of the items.

Agency deliverables

These regulations set out the following documents that the Agency will be required to deliver to proponents, and to post on the Agency’s online public Registry, at the end of the planning phase:

• Tailored guidelines regarding the information or studies referred to in paragraph 18(1)(a) of the IAA (Tailored Impact Statement Guidelines);
• A plan for cooperation with other jurisdictions (Cooperation Plan);
• A plan for engagement and partnership with the Indigenous peoples of Canada (Indigenous Engagement and Partnership Plan);
• A plan for public participation (Public Participation Plan); and
• A plan for the issuance of permits (Permitting Plan).

These guidelines and plans will provide direction for the impact assessment, helping achieve the objective of one project, one assessment. They will be project-specific, based on templates developed by the Agency to guide their preparation.

Format requirements and accessibility of information

The regulations require that information provided by proponents throughout the impact assessment process be in a machine-readable format. This means that information can be easily searched and transferred from one place to another. This will facilitate the sharing and reuse of information, supporting transparency, accountability, efficiency, and citizen engagement. Information will be shared through the Agency’s online public Registry, as well as through the Government’s new integrated Open Science and Data Platform, which will provide a publicly accessible, single window containing data from multiple federal government departments, in support of analysis of cumulative effects.

The regulations also require proponents to provide a plain language summary of information, which is intended to support accessibility of information, presented in a manner easily understood by the general public.

All requirements for proponents to provide information under the IAA are subject to restrictions associated with privacy, confidentiality and security.

Participant funding program

The IAA requires the Agency to establish a participant funding program to facilitate the participation of the public and Indigenous peoples in the planning phase, impact assessment, and the design or implementation of follow-up programs, in relation to certain projects to be prescribed by the regulations. The regulations provide that a participant funding program will be established for all designated projects, which include any project that is on the Project List or that has been designated in an order made by the Minister under subsection 9(1) of the IAA.

Time limit to respond to a request for a regional or strategic assessment

The IAA requires the Minister to respond, with reasons, and within the prescribed time limit, to any request that a regional or strategic assessment be conducted. The regulations support the functioning of this part of the legislation, setting a time limit of 90 days for the Minister to respond.

Repeal of spent regulations

As a result of the coming into force of the IAA, the Prescribed Information for the Description of a Designated Project Regulations under the CEAA 2012 are repealed.

Regulatory development

Consultation

A Consultation Paper on Information Requirements and Time Management Regulations was published and made available online for public comment between February 8 and June 1, 2018. The comment period was extended from 60 days to over 3 months in response to calls from stakeholders that additional time was needed to respond. An email was sent out to stakeholders, and to over 1 000 Indigenous groups, advising them of the opportunity to provide feedback on the approach. In total, almost 100 submissions were received from industry, Indigenous groups, environmental non-government organizations, provinces and territories and the US Environmental Protection Agency and from individual Canadians.

In addition, officials from the Agency and other government departments have held approximately 100 meetings to discuss different aspects of the IAA, including information and time management regulations, with industry (including representatives from at least 15 large companies and 10 industry associations), Indigenous organizations (35), environmental organizations (15) and provincial and territorial officials. As well, sessions on information and time management regulations were held with the Minister’s Multi-Interest Advisory Committee (MIAC) that was established to provide advice on design and implementation of the IAA and consists of representatives from Indigenous communities, industry and environmental non-government organizations, and with a network of environmental assessment practitioners from provinces and territories.

A public consultation on a Discussion Paper on Information Requirements and Time Management Regulatory Proposal was held from May 1 to May 31. As of June 7, 2019, the Agency had received written submissions from 28 Indigenous groups, 28 industry stakeholders, 5 environmental non-governmental organizations, 6 from government agencies (provincial, territorial or municipal) and 4 from unaffiliated individuals. In addition, 32 meetings were held to directly engage on the information and time management regulatory proposal.

During the consultation, we heard differing views on the proposed elements of the regulations.

Criteria to suspend legislated timelines

Stakeholders generally expressed support for the approach to suspend timelines only in accordance with criteria set out in regulation. There were no concerns raised with suspending timelines at the request of the proponent, or if the proponent had not paid fees.

There was also general support for suspending timelines for the proponent to provide information about changes in potential effects of the project resulting from a design change. Including this criterion allows for flexibility in the process if information gaps arise in the case of an unforeseen design change, and ensures there is time for proponents to provide information the Agency or review panel needs to fulfill its obligations under the IAA to conduct the assessment.

Some industry stakeholders sought further details about how the Agency would determine whether or not information gaps related to a design change were such that a suspension of the time limit is warranted. This reflected a desire to ensure that design changes did not open the possibility of unrelated information requests. As outlined above, the regulatory text, combined with related provisions of the IAA, establish a number of limitations on the Agency’s discretion to suspend time limits in relation to a design change, and would not enable the possibility of time suspensions for unrelated information requests.

The February 2018 Consultation Paper on Information Requirements and Time Management Regulations contemplated a fourth criterion to enable the suspension of timelines to address newly identified information needs. Across stakeholder groups, concerns were raised about the lack of clarity around how this criterion could be used. Industry stakeholders emphasized that suspending timelines for information requests created uncertainty and unreasonable delays under the CEAA 2012 regime. Environmental groups, Indigenous peoples and others cautioned that it was important to allow flexibility in timelines to address unanticipated information needs and to allow alignment with processes of other jurisdictions where timelines are suspended for this reason. This criterion is no longer proposed, as information needs will be identified in the planning phase, informed by public engagement and Indigenous engagement and consultation. The Agency will also review the impact statement to ensure the necessary information is included before proceeding to the impact assessment phase (before the time limit for the impact assessment phase commences). This will be done with input from federal departments, lifecycle regulators, review panels, other jurisdictions and Indigenous peoples, as appropriate. This is expected to reduce new information needs and unexpected issues being raised later on, allowing the legislated timeline to proceed without suspensions.

Indigenous groups also emphasized the importance of allowing adequate time for consultation in the assessment process. Some Indigenous groups also expressed the desire for control over the management of timelines, and a government-to-government approach to Indigenous involvement in impact assessments overall. The Indigenous Engagement and Partnership Plan will be developed collaboratively with Indigenous groups and will identify the Indigenous groups that will be consulted, and outline the consultation and engagement activities, and the timing of activities.

While the regulations limit the ability of the Agency to suspend timelines to the three, proponent-driven criteria, the IAA also provides authorities for the Minister and Governor in Council to extend timelines, which can be used to enable cooperation with another jurisdiction or to deal with project-specific circumstances.

Information proponents must provide in the initial and detailed Project Description

There was support across stakeholder groups for setting the information requirements for the initial and detailed Project Description in regulation. Overall, there was agreement that information required in the initial and detailed Project Description should support the objectives of the planning phase, and should align with what can be reasonably expected from proponents at each stage. However, there were differing views about what information requirements should be included in the initial Project Description as compared to the detailed one, and about the level of detail required at each stage.

We heard from Indigenous peoples and others that information provided by proponents in the initial Project Description should be sufficient to inform meaningful early engagement. Indigenous groups emphasized that potential impacts on Indigenous rights should be identified and considered early in the process. Environmental groups, Indigenous peoples and some industry stakeholders also emphasized that information is needed earlier on potential alternatives to the project, to inform early discussions and help determine the appropriate scope of alternatives to be considered in the impact assessment. Many industry stakeholders indicated that the proposed information requirements for the initial and detailed Project Description were reasonable, recognizing that the level of detail required at this stage should not duplicate the impact assessment phase.

We also heard from environmental groups and some industry stakeholders that requiring too much information at the initial Project Description would be contrary to the purpose of early planning and might create the impression that the project design is already fixed at that early stage. Some industry stakeholders also expressed that some details, in particular related to potential effects of the project, would not be known to proponents at the outset.

With respect to the detailed Project Description, we heard from industry stakeholders and others that information should be sufficiently detailed to inform assessment planning, including the scoping of issues for the tailored impact statement guidelines, and to reduce the risk of unanticipated issues being raised at a later stage. Environmental groups and others cautioned that impact assessment is iterative and that the Agency should not foreclose the possibility of new information requirements.

There was support across stakeholder groups for an approach that allowed the Project Description to evolve, recognizing that information is subject to change in order to reflect both changes in project design and more comprehensive levels of detail in the detailed Project Description as compared to the initial Project Description.

These regulations balance these differing views and objectives by specifying that the information provided is based on the project as proposed at that point in time, and by requiring less detail on each of the information components in the initial Project Description as compared to the detailed Project Description. Proponents may voluntarily submit any additional information they believe is relevant at the time of each of the Project Descriptions.

The regulations also address concerns that alternatives should be considered and scoped early in the planning phase, rather than later in the process during the impact assessment phase.

Format requirements and accessibility of information

Most stakeholders and Indigenous groups supported the requirement that proponents provide information in a machine-readable format and provide plain language summaries of information. Some Indigenous groups also recommended that the proponent be required to make information available in an accessible way to Indigenous communities (e.g. translation to Indigenous languages, requirement for face-to-face meetings). While requirements specific to Indigenous communities are not set out in the regulations, the Agency would undertake, or may require the proponent to undertake, tailored approaches to community engagement, respecting cultural and practical needs of the community, where relevant and feasible in the context of each project.

Agency deliverables

There was strong support across stakeholder groups for prescribing in the regulations the documents that the Agency will be required to deliver at the end of early planning. We heard that requirements and expectations need to be clear from the outset — including an understanding of the information that is required to complete the assessment, what studies are needed, who needs to be consulted, and what permits might eventually be needed. This will be supported by the requirement for the Agency to produce tailored impact statement guidelines and plans for Indigenous engagement and partnership, public participation, cooperation with other jurisdictions during the assessment, and permitting.

Indigenous peoples, provinces, proponents and other stakeholders also expressed the desire to participate in developing the documents with the Agency. Environmental groups, Indigenous peoples and others also provided input on what should be included in the content of the guidelines and plans. The scope of the regulations, based on the regulatory authorities provided in the IAA, does not include procedural requirements for how the documents are developed, or specifications related to the content of the documents. The Agency is developing policy and templates to guide the preparation of these documents, which will be developed collaboratively and tailored for each project.

For integrated assessments with lifecycle regulators, the Agency will work with lifecycle regulators to ensure that the tailored impact statement guidelines incorporate the relevant information requirements for that lifecycle regulator. For example, for projects regulated by the Canadian Energy Regulator, the guidelines will incorporate applicable components of what previously constituted the National Energy Board Filing Manual.

Participant funding program

There is broad support for the requirement that participant funding be provided for all designated projects. Many Indigenous peoples stressed that participant funding should be available for all phases of the process, including the planning phase, and that it should be inclusive, sufficient and timely. Some industry stakeholders suggested that guidance is needed to define who should be able to qualify for participant funding.

The Agency will provide participant funding to Indigenous peoples and the public in order to support them in preparing for and participating in consultation activities and engagement opportunities throughout the impact assessment process.

Time limit to respond to a request for a regional or strategic assessment

Few comments were received on the proposed 90-day time limit for the Minister to respond to a request that a regional or strategic assessment be carried out under the IAA. Some industry stakeholders indicated that the proposed time limit was reasonable, but suspected that the Minister may be able to respond to most requests in less time. Some Indigenous groups proposed a longer time limit, in order to ensure adequate time to consult on whether to undertake an assessment.

A time limit of 90 days is an effective balance between ensuring that requests receive a timely response from the Minister and enabling at least preliminary discussions with implicated jurisdictions regarding their interest and potential to undertake a proposed assessment. In most cases, it is expected that responses would be provided in less than 90 days.

The time limit will not prevent continued discussions with jurisdictions to determine the potential for a regional or strategic assessment at a future time. For example, it is anticipated that if the Minister’s response were to decline a request for a regional assessment at that time, it could indicate that discussions with jurisdictions were continuing to determine the potential to undertake a regional assessment at a future time.

Exemption from prepublication

The Information and Management of Time Limits Regulations are required to implement the new impact assessment process. The final regulation is being published in the Canada Gazette, Part II, in alignment with the coming into force for the IAA. A Discussion Paper on Information Requirements and Time Management Regulatory Proposal was published for public consultation from May 1 to May 31, 2019, and served as a stand in for prepublication in the Canada Gazette, Part I.

Modern treaty obligations and Indigenous engagement and consultation

This assessment of modern treaty implications builds on the assessment completed for the Impact Assessment legislation conducted in 2018. It concluded that there would be positive implications for modern treaties from the new impact assessment process resulting from tools to enable harmonization with treaty processes, better consultation processes, increased ability to identify and resolve issues, and a more consistent approach to impact assessments and opportunities for Indigenous involvement.

There are currently 30 modern treaties and self-government agreements across the country, of which several have provisions related to environmental or impact or development assessment. Of note, the application of federal environmental assessment legislation is very limited for over half of the treaties, especially in the territories. These treaties were reviewed to determine if the Information and Management of Time Limits Regulations implicated any treaty obligations, as a result of differences or overlap with treaties that have their own processes.

The Agency also individually notified each modern treaty and self-governing group of the consultation on the Discussion Paper on Information Requirements and Time Management Regulatory Proposal and offered to meet with them, if interested. Submissions were received from seven (7) groups: the Nunatsiavut Government, the Nisga’a Lisims Government, the Makivik Corporation, the James Bay Cree Advisory Council on the Environment, the Inuvialuit Game Council, the Naskapi Nation of Kawawachikamach, and the First Nations of Maa-Nulth Treaty Society.

Input provided by these modern treaty and self-governing groups included the following:

• Emphasis on the need for the federal assessment process to enable collaboration with treaty-based assessment processes.
• Support for the planning phase, and for the information required in the initial and detailed project description.
• Some suggested that more information should be included in the initial and detailed project description, including information specific to potential impacts on treaty lands and rights.
• Concern about the proponent-driven approach to timeline suspensions, and emphasis on the need for flexibility in timelines, including the ability to suspend timelines, in order to harmonize with treaty processes and ensure consultation duties are fulfilled.

This assessment identified many modern treaty implications or obligations related to the proposed regulation, however, the legislative and regulatory framework provides the necessary authority and flexibility to respect those obligations.

The IAA also includes general clauses to ensure that any existing treaty rights are not affected by the introduction of the new legislation and supporting regulations and policy:

• Nothing in the Act is to be construed as abrogating or derogating from the protection provided for the rights of the Indigenous peoples of Canada by the recognition and affirmation of those rights in section 35 of the Constitution Act, 1982.

The regulations will support the overall positive implications of the IAA for modern treaties. The information required in the initial and detailed Project Description will support early engagement with modern treaty holders, including: identification of potentially impacted Indigenous peoples, a summary of any regional study conducted by or on behalf of an Indigenous governing body, proximity of the project to Indigenous lands, and potential impacts of the project on Indigenous peoples. The detailed Project Description also requires a summary of key issues raised by Indigenous peoples during engagement, including potential impacts on Indigenous rights. The regulations will also improve opportunities for harmonization with Indigenous jurisdictions and consultation with Indigenous peoples by requiring the Agency to produce plans for Indigenous engagement and partnership, and cooperation with other jurisdictions during the assessment. The Indigenous Engagement and Partnership Plan will be developed collaboratively with Indigenous groups and address plans for potential engagement activities and the timing of engagement.

With respect to concerns regarding time suspension, while the regulations limit the ability of the Agency to suspend timelines to the three, proponent-driven criteria, the IAA also provides authorities for the Minister and Governor in Council to extend timelines, which can be used to enable cooperation with another jurisdiction or to deal with project-specific circumstances. In addition, under section 109 of the IAA, the Governor in Council may make regulations varying or excluding any requirement set out in this Act or the regulations as it applies to physical activities to be carried out

• (i) on reserves, surrendered lands or other lands that are vested in Her Majesty and subject to the Indian Act; and
• (ii) on lands covered by land claim agreements referred to in section 35 of the Constitution Act, 1982.

Instrument choice

The IAA requires proponents to provide an initial and detailed Project Description to the Agency during the planning phase, including the information prescribed by the regulations. The IAA also requires the Agency to produce any documents prescribed by regulation by the end of the planning phase. These regulations are needed to operationalize these legislative requirements. Prescribing the information requirements in regulation provides greater certainty to proponents and others and also promotes consistency in the process.

The IAA provides authorities to the Agency to suspend legislated time limits, only in accordance with criteria set out in regulation. In the absence of these regulations, it would not be possible to exercise these authorities. The use of the regulations to prescribe these criteria provides for greater certainty and accountability in the management of legislated timelines under the IAA.

The IAA also states that the regulations will prescribe the projects for which the Agency’s obligation to establish a participant funding program will apply. These regulations operationalize this requirement and provide certainty that the Agency’s participant funding programs will be available for all designated projects.

The IAA states that the time limit for the Minister to respond to a request that a strategic or regional assessment be undertaken will be prescribed by regulations. In the absence of regulations, the Minister’s obligation to reply would not be subject to a time limit, contrary to the intention of the legislation.

For the elements of these regulations described above, other options for instrument choice were not considered as they would be inconsistent with the legislative scheme.

With respect to requirements related to the format of documents provided by proponents, other instruments, such as policy guidance, were considered. However, regulations were the preferred instrument so that compliance with the format requirements would be enforceable and more likely to be adopted consistently by proponents. This ensures the Agency is able to meet its mandate under the IAA to share information on the online public Registry.

Regulatory analysis

Benefits and costs

Summary

These regulations are expected to be beneficial overall to proponents, Indigenous communities, stakeholders and the Canadian public.

The cost-benefit analysis assesses the difference between the baseline and incremental scenarios. The baseline scenario reflects the previous Prescribed Information for the Description of a Designated Project Regulations under the CEAA 2012, along with those elements of the Information and Management of Time Limits Regulations that reflect existing practices under the CEAA 2012. The incremental scenario describes new elements of the Information and Management of Time Limits Regulations that were not prescribed before nor reflective of existing practice.

The main benefits of the regulations are the new Agency deliverables to proponents and the new initial Project Description submitted by proponents. The deliverables will assist proponents in their assessment planning while the initial Project Description will facilitate the Agency’s engagement and consultation with Indigenous communities and the Canadian public. These documents will enhance the transparency, predictability and timeliness of the impact assessment process for all parties. The measures with respect to time management, including specific criteria for time limit suspensions, will increase the predictability of the process.

The main costs are the initial Project Description and the deliverables for proponents and the Government. They will require time and resources to produce and review such documents. Indigenous communities, the Canadian public and stakeholders will require time and/or resources to contribute information and participate in the development of the Agency deliverables, and to review and provide input on the information of the initial Project Description.

Analysis

The baseline scenario includes

• The majority of requirements for detailed Project Description (as this is similar to the Project Description prescribed in the Prescribed Information for the Description of a Designated Project Regulations under the CEAA 2012);
• The tailored impact statement guidelines (comparable to the Environmental Impact Statement Guidelines under the CEAA 2012);
• Format requirements and accessibility of publicly available information;
• The ability to suspend legislated timelines for the proponent to provide information; and
• The Participant Funding Program.

The incremental scenario includes the following:

• Time management
  • Two proponent-driven criteria to suspend time limits (at the proponent’s request and for the proponent to provide information related to a design change);
  • Legislated timelines could be suspended if the proponent has not made a payment under the Cost Recovery Regulations within 90 days of when the payment is due; and
  • Time limit for the Minister to respond to a request that a regional or strategic assessment be conducted;
• Initial Project Description and four new information requirements for the detailed Project Description
  • A summary of any strategic assessment carried out under IAA that is relevant to the project;
  • A summary of the health, social and economic setting in the region where the project is located;
  • A description of any alternatives to the project and alternative means of carrying out the project that the proponent is considering;
  • Reporting on the results of engagement during the planning phase; and
• New agency deliverables
  • Cooperation Plan;
  • Indigenous Engagement and Partnership Plan;
  • Public Participation Plan; and
  • Permitting Plan.

The affected parties include

• Proponents of designated projects;
• Impact Assessment Agency of Canada;
• Federal departments and agencies involved in the impact assessment process;
• Provincial and Indigenous jurisdictions that have powers, duties or functions in relation to an assessment of the environmental effects of a designated project;
• Indigenous governments and communities; and
• Canadian public.

It is not possible to predict with certainty the number of projects that will be subject to the IAA. New resource or other development projects are driven by economic conditions and other considerations that inform proponent decisions. The total number of designated projects that are subject to federal impact assessment is not expected to significantly change under the IAA as compared to under the CEAA 2012. The Agency’s analysis, based on available information, suggests there will likely be a small decrease in the number of projects that will be required to undergo a federal impact assessment on an annual basis (up to five fewer projects per year).

Small business lens

The small business lens does not apply, as the incremental impact is below one million dollars. It is expected medium to large-sized proponents will most likely be affected by the new regulations.

Impact assessments under the IAA are conducted of projects that include proposed physical activities that are “designated,” either through regulations or by the Minister. Designated projects identified are large in scale and small businesses are unlikely to undertake the type of project that includes any of the designated physical activities.

“One-for-One” Rule

The “One-for-One” Rule applies to these regulations, as there are administrative costs to proponents. These administrative costs result from the review, compilation, and preparation of the initial Project Description and four information requirements for the detailed Project Description for submission to the Agency.

The estimated administrative cost for the regulation is $157,089 (annualized per year). This represents the incremental costs of the Information and Management of Time Limits Regulations, as compared to the Prescribed Information for the Description of a Designated Project Regulations under the CEAA 2012 and existing practice, as described above.

The Prescribed Information for the Description of a Designated Project Regulations under the CEAA 2012 are repealed.

Regulatory cooperation and alignment

These regulations are not part of a proposal related to a work plan or commitment under a formal regulatory cooperation forum.

Impact assessment is one part of a larger regulatory landscape for addressing adverse effects, working alongside other regulatory processes at all levels of government, with complementary roles. Projects may be governed by provincial or territorial regulatory regimes that address environmental impacts along the life of the project or may undergo an environmental assessment at the provincial or territorial level. Projects are also subject to federal regulations or general prohibitions under, for example, Fisheries Act, Migratory Bird Convention Act, 1994, Species at Risk Act or Canadian Environmental Protection Act, 1999. Federal lifecycle regulators play a key role assessing and authorizing nuclear, offshore oil and gas and energy projects. Within this landscape, impact assessment provides a comprehensive and rigorous framework through which to review the projects with the greatest potential impacts.

The IAA also provides for close cooperation with provinces and Indigenous governing bodies to support the objective of “one project, one assessment,” through the delegation of any part of an impact assessment, the joint establishment of a review panel or the substitution of another process for the impact assessment. The IAA will also create opportunities to align the timing of federal, provincial and Indigenous assessment processes so that actions are coordinated, delays avoided in the process, and decisions are consistent between different jurisdictions on a project.

The IAA also allows for projects that require an impact assessment in both Canada and the United States to establish cooperation agreements to assess projects jointly. If a project is designated in Canada, but does not require a federal assessment in the United States and has potential for transboundary impacts, the Impact Assessment Agency has established procedures for notification of, and consultation with, the United States on potential transboundary effects.

These regulations support the implementation of the coordination and cooperation functions under the IAA by requiring the Agency to develop guidelines and plans, by the end of the planning phase, to provide direction for the assessment. The plan for cooperation with other jurisdictions during the impact assessment may include harmonized timelines, when possible, with other jurisdictions, joint consultation activities and other actions aimed at reducing duplication of effort for proponents, Indigenous groups, and the public. The plan for Indigenous engagement and partnership will set out how Indigenous groups would be engaged and work together in the assessment process and, where relevant, align timelines and prevent duplication. The permitting plan will clarify upfront what permits, licences or authorizations may be required from other regulators or jurisdictions. The tailored impact statement guidelines, which set out the information required for the assessment, will also be developed with input from other jurisdictions, federal departments and agencies, Indigenous groups and the public.

Provincial environmental assessment processes were reviewed and taken into consideration as part of the process to develop the regulations. The Agency also coordinated regulatory development with other federal departments that have a power, duty or function in relation to the impact assessment of designated projects to ensure a coordinated approach to implementation of the regulations.

Strategic environmental assessment

A strategic environmental assessment was conducted on the overall IAA. The results of this analysis indicated that the overall proposal will have a positive effect on the environment that is a result of strong federal impact assessment and regulatory processes. The objective of the Information and Management of Time Limits Regulations is to enable key aspects of the impact assessment system to function, and to enhance clarity, transparency and predictability in the process.

Gender-based analysis plus

A gender-based analysis plus (GBA+) analysis that was conducted on the IAA as a whole found that the IAA is expected to have important positive effects on women, Indigenous peoples, and other vulnerable groups resulting from strengthened federal impact assessment processes. It is anticipated that the broadened approach to impact assessment that considers economic, health, gender and social effects will ensure that projects are considered in a holistic manner that recognizes the multiple pillars of sustainability and promotes sustainable development. Most importantly, the broadened approach to impact assessment also includes a GBA+ assessment for each project. The early engagement during the planning phase will provide a forum for stakeholders, Indigenous groups, and the general public to identify environmental, social, health, gender and economic concerns from the outset of a project. Multiple measures will enable increased participation of the public and Indigenous groups.

These regulations support these positive effects of the IAA. Proponents are required to provide sufficient information in their initial and detailed Project Description to support engagement and planning during the planning phase. This includes, for example, a description of the health, social and economic setting for the project, and information about the project and its potential effects. These regulations also require the Agency to produce plans that will support public participation and Indigenous engagement and partnership in the assessment, and to produce tailored impact statement guidelines, setting out the information required for the assessment, which will include information to support consideration of economic, health, gender and social effects.

Implementation, compliance and enforcement, and service standards

Implementation

These regulations come into effect on the date the IAA comes into force. Transitional provisions included in the IAA will govern how projects that had already started under the CEAA 2012 will be addressed under the IAA.

Compliance and enforcement

The IAA prohibits a proponent of a designated project from carrying out any activity associated with a designated project unless it meets the conditions established in section 7 of the Act.

The Agency is responsible for promoting, monitoring and facilitating compliance with the IAA and any decision statement issued by the Minister. Where projects are also regulated by lifecycle regulators (Canadian Energy Regulator, Canadian Nuclear Safety Commission and offshore boards), there are mechanisms in the Act to provide for compliance and enforcement by these bodies for matters within their mandates.

The Agency raises awareness of the IAA requirements by offering education and training opportunities, doing outreach, and providing information. Compliance promotion is part of the Agency’s day-to-day business. This includes sharing information about the IAA during meetings with proponents, federal departments and agencies, provinces, territories, Indigenous governments and Indigenous people, industry, environmental groups and other interested parties.

Engagement was conducted on the new Information and Management of Time Limits Regulations, which included groups that may be subject to the new regulations. The Agency also has an engagement strategy in place to promote the coming into force of the IAA.

The Agency will publish guidance materials to assist proponents in preparing their initial and detailed Project Description, in compliance with the regulations, similar to the Guide to Preparing a Description of a Designated Project under the CEAA 2012.

Given the circumstances and subject to the enforcement officer’s discretion, the following instruments are available to respond to alleged violations of the IAA:

• notice of non-compliance;
• orders;
• injunctions; and
• prosecutions.

If prosecution of an alleged offence of the IAA leads to an accused person pleading guilty or being found guilty at the conclusion of their trial, fines are the only penalty provided for in the IAA.

Service standards

The Agency will implement a service standard of 10 days to review the initial Project Description provided by a proponent, to verify that it includes all the information required by the regulations. Following this review, the Agency will post the Project Description on the online public Registry, to commence the timeline for the planning phase under the IAA.

Contact

Stephanie Lane
Director
Legislative and Regulatory Affairs Division
Canadian Environmental Assessment Agency
Email: ceaa.regulations-reglements.acee@canada.ca