Canada: Reshaping Canada's Project Assessment Regime—Bill 69's Ambitious Blueprint

This article is Part II of a series that discusses the federal government's proposed changes to Canada's environmental regulatory regime governing project development and operation in Canada.

In this article, we review the changes to Canada's project assessment regime proposed under Bill 69, 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 69 is the culmination of more than a year of review by expert panels, public consultation, Indigenous community input, and Parliamentary committee study. The federal government seeks to establish a project assessment process that will bring public acceptance and much-needed certainty to the review of major projects. The stakes are high because the project review process is at the intersection of many federal policy objectives that will shape our natural resource economy and define how Canada is viewed by developers who may wish to participate.

Although many core features of the current regime (CEAA 2012) are retained, the proposed amendments are ambitious in scope, and will substantially change and expand important elements of Canada's impact assessment regime. Notable features include:

  • A change in concept—impact assessment versus environmental assessment—that reflects a broader perspective on sustainable development.
  • Restructuring the agencies (CEAA and NEB)—creating the Impact Assessment Agency of Canada and the Canadian Energy Regulator [see our separate summary of the CER proposal].
  • Ultimate decisions on designated projects remain at the political level. Decisions will be based on a public interest test.
  • More emphasis on considering the interests and traditional knowledge of Indigenous peoples and allowing opportunity for input.
  • Retaining but expanding the designated project and activity approach, rather than returning to a pre-CEAA 2012 approval "trigger" to decide what will be assessed.
  • More emphasis on the planning phase to assess public interest and set the scope of the assessment.
  • Retaining inter-jurisdictional cooperation—joint reviews and the potential to approve a provincial process as a substitute.
  • Broader public participation, with funding and no test of standing to participate.
  • Longer list of factors that will be assessed, including; alternatives to the designated project and alternative means to carry out the project, a gender-based analysis of impacts, greater emphasis on cumulative effects and regional assessments, and impacts on climate change commitments.
  • A continued emphasis on time limits for each phase of the assessment to reach decision.
  • Emphasis on transparency, notices and detailed reasons for decisions.

The discussion that follows highlights areas of interest to those involved in project development or impact assessment.

1. Repeal of CEAA 2012, Enactment of the IAA, and CEAA's Continuation as the Impact Assessment Agency of Canada as the Lead Regulatory Agency

The Canadian Environmental Assessment Act, 2012 (CEAA 2012) will be repealed and replaced by the Impact Assessment Act (IAA). The Canadian Environmental Assessment Agency of Canada (CEAA) will be continued as the Impact Assessment Agency of Canada (Agency). Unlike the CEAA, the Agency will also assume an expanded role as the authority responsible for impact assessments.

2. Broadened Scope of Effects

The move from environmental impact assessment to broader impact assessment is reflected throughout the IAA. This new approach is demonstrated in the expanded scope of "effects" which include "changes to the environment or to health, social or economic conditions and the consequences of these changes". Positive and negative effects must be considered.

This broader scope has existed in provincial regimes for some time—for example, British Columbia's "five pillars" of assessment (environmental, economic, social, heritage and health effects) which is based on a sustainable development approach.

In addition, the IAA requires consideration of "adverse direct or incidental effects": effects directly linked or necessarily incidental to a federal authority's exercise of a power or duty that would permit the physical activity or designated project, or that are linked to a federal financial assistance to enable an activity.

3. Definition of the Public Interest

The IAA redefines public interest. When deciding whether a project is in the public interest, the Minister and Governor in Council must consider the factors set out at section 63, including the following:

  • the extent to which the designated project contributes to sustainability;
  • the extent to which the effects, direct and indirect, within federal jurisdiction are adverse;
  • the implementation of the mitigation measures that the Minister or the Governor in Council considers appropriate;
  • the impact the designated project may have on any Indigenous group and the rights of the Indigenous peoples of Canada recognized and affirmed by section 35 of the Constitution Act, 1982; and
  • the extent to which the effects of the designated project hinder or contribute to the Government of Canada's ability to meet its environmental obligations and its commitments on climate change.

4. Emphasis on Indigenous and Public Participation

The IAA contains several new requirements for the Minister relating to Indigenous peoples, including expanding the science based approach upon which decisions are based to include Indigenous traditional knowledge. Potential impacts on the rights of Indigenous peoples is one of several factors that the Minister or the Governor in Council must consider when determining if an activity is in the public interest.

The Agency must offer to consult with any Indigenous group that may be affected by the carrying out of the designated project at the planning stage of an assessment. The Agency must also consider any potential adverse impact on the rights of Indigenous peoples when determining if an impact assessment is necessary, and must take these effects into account.

The definition of "effects" as it relates to Indigenous peoples remains unchanged from CEAA 2012, and includes effects on Indigenous peoples' health, social or economic conditions, and any change to the environment that results in changes to their heritage, current land use for traditional purposes, or historical sites.

Separately, the IAA contains provisions to protect the confidentiality of traditional knowledge of Indigenous peoples provided as part of a review. The Agency must also establish an advisory committee to advise on the interests of Indigenous peoples related to assessments under the IAA.

Notably, the IAA does not establish a test for standing for public participation. Public comments must be considered in an impact assessment, but they are not a factor that must be considered when determining whether a project is in the public interest. This inclusive approach in combination with the expanded list of factors to consider will expand the scope and complexity of assessments.

The Minister must also consider public input when determining whether to convene a joint review panel.

5. Amended Pathways and Timelines for Proponents

a. Role of the Agency

Under the IAA, the Agency will be responsible for leading all impact assessments for designated projects, and will cooperate where necessary with other bodies (e.g., through joint review panels) at various stages outlined below. Non-designated projects will continue to be regulated through the "lifecycle regulators" such as the National Energy Board, but remain subject to other federal environmental regulation—for example, the requirements of the Fisheries Act.

b. Minister's Discretion to Designate

Like CEAA 2012, the Minister retains the ability to designate an activity for assessment if the activity would cause an adverse effect within federal jurisdiction, adverse direct or incidental effects, or where public concern warrants it.

Under the IAA, the Minister must consider any adverse impact on the rights of Indigenous peoples into concern before making the order.

c. Planning Phase

The creation of a planning phase places greater emphasis on pre-application consultation and setting the scope for the regulatory process. This up-front work will assist the Agency in assessing the level and nature of public interest to decide whether an impact assessment is required.

During this phase, the Agency will offer consultation to any jurisdiction with powers related to the activity and any Indigenous group that may be affected by the carrying out of the designated project, and will establish opportunity for public comment. Federal authorities with relevant expertise or information must also assist the Agency if requested.

At the end of the planning stage, the Agency will give the proponent a summary of relevant issues gathered through the planning phase. The Agency may also request additional information before deciding how to proceed.

Upon receiving all necessary information, the Agency will decide whether an impact assessment is required, and must consider:

  • the possibility of adverse effects within federal jurisdictions or adverse direct or incidental effects;
  • any adverse impacts on the rights of Indigenous peoples;
  • any comments received from the public;
  • any relevant regional or strategic assessments;
  • any study prepared by a jurisdiction; and
  • any other factor that the Agency considers relevant.

d. Commencement

Once the Agency determines that an impact assessment is required, it has 180 days from the date the proponent provided its initial description to issue a notice of commencement. A notice of commencement must set out what information or studies are required for the Agency to complete its assessment.

Once a notice of commencement is issued, the proponent has three years to file required reports. If it does not, the assessment is terminated.

e. Assessment

Section 22 lists the factors that must be considered as part of an impact assessment. A few of the more notable—and mandatory—factors include:

  • the effects of the project, including the effects of malfunctions or accidents and cumulative effects from the designated project in connection with other physical activities that have been or will be carried out;
  • the impact the designated project may have on any Indigenous group and their aboriginal rights;
  • alternative means of carrying out the project that are technically and economically feasible, including through best available control technology;
  • alternatives to the project;
  • traditional knowledge of Indigenous people "provided with respect to the designated project";
  • the extent to which the effects of the designated project affects Canada's environmental obligations and commitments to climate change;
  • considerations related to Indigenous cultures raised by the project;
  • community knowledge provided with respect to the project;
  • comments from the public regarding the project;
  • comments from a jurisdiction received at the planning stage;
  • any assessment, study, or plan that is conducted by or on behalf of an Indigenous governing body or a jurisdiction; and
  • the intersection of sex and gender with other identity factors.

f. Review by the Agency

The first—and default—path for assessment is for the Agency to undertake the review. As part of a review, the Agency may require the collection of information or undertaking of any study it deems necessary, and must include public participation.

Following its review, the Agency must submit a draft report setting out the likely effects of the designated project within 300 days of the notice of commencement, including a period of public comment on the draft report.

The IAA allows the Minister extend the time limit in a variety of circumstances, including to seek further information from the applicant.

g. Review by a Review Panel

The Minister may refer the impact assessment to a review panel within 45 days from the notice of commencement, after considering the:

  • extent to which the effects within federal jurisdiction may be adverse;
  • public concerns regarding those effects; and
  • opportunities to cooperate with any jurisdiction with power to assess the environmental effects.

A review panel must complete its report within 600 days of its appointment. The Minister may terminate the assessment if the Minister thinks the panel will not submit its report within the time limit, or if it fails to do so.

h. Joint Reviews and Substituted Reviews

The Minister must establish a joint review panel for designated activities under the Canadian Energy Regulator Act or the Nuclear Safety and Control Act.

For projects that do not come under the jurisdiction of the CER or the CNSC, the Minister may also establish a joint review panel with another jurisdiction by agreement. The Minister must establish or approve the review panel's terms of reference, including a time limit, and appoint a chairperson and at least one member of the panel.

If requested by a province, the Minister may approve a provincial assessment process as a substitute for the federal process, if the Minister is satisfied the provincial assessment will include the same elements, including the assessment considerations. Similarly, the Minister may also approve an assessment by an Indigenous governing body as a substitute in the right circumstances.

i. Decision

After receiving a draft report from the Agency, the Minister will determine if the adverse effects within federal jurisdiction are in the public interest, and then must refer the question of whether the project is in the public interest to the Governor in Council.

Where the review is conducted by a joint review panel, the Minister must refer the decision of whether the matter is in the public interest to the Governor in Council.

The IAA prescribes the factors that both the Minister and the Governor in Council must consider when determining whether the activity is in the public interest. These include:

  • the extent to which the designated project contributes to sustainability;
  • the extent to which the adverse effects within federal jurisdiction are adverse;
  • the implementation of the mitigation measures that the Minister or the Governor in Council considers appropriate;
  • the impact that the designated project may have on any Indigenous group and their rights; and
  • the extent to which the effects of the designated project affects Canada ability to meet its environmental obligations and its commitments on climate change.

The Minister must issue a decision statement and any related conditions to the proponent within 30 days of the Agency report being posted on the Agency website or within 90 days of the joint review panel's report being posted.

6. Ongoing Consultation on Definition of Designated Projects

The full range of designated activities is still unknown. Public consultation on the contents of the Designating Physical Activities Regulation is currently underway.

The public is also being asked to provide feedback on what information a project proponent ought to provide at the planning stage of an impact assessment. Once finalized, the Information and Time Management Regulations will outline the requirement for the information as required at the planning phase as well as the criteria to guide suspension of timelines.

Anyone interested in submitting comments on either of these regulations may do so by April 15, 2018, by following the instructions at the Government of Canada's website.

7. Implications for Federal Project Assessment

While many important details are being worked out, it is clear the new assessment regime will have several practical implications.

  • Retaining the ultimate decision at the political level—Minister or Governor in Council—is important to allow for the weighing of public interest, policy direction, and risk trade offs. These are political not legal or scientific decisions, for which the government will be accountable.
  • The broader scope of the assessment list of factors to consider will complicate the federal assessment, which will add cost and effort on project developers.
  • Increasing the opportunity for public participation, with funding, will increase the level of public participation which has the potential to overwhelm the process. It will fall to the Agency or the review panel to manage that public input effectively.
  • The strong emphasis on the planning phase will shift more work to the front-end of the review process which must be factored into a project planning timeline. If the planning phase is implemented well, however, it should set the conditions for a more efficient assessment.
  • The expanded list of factors to consider will increase the information required from the applicant and increase the analysis required by the assessing agency. A broader consideration of the positive and negative effects could be helpful to refocus assessments on sustainable development—i.e., weighing the social and economic impacts, rather than simply the environmental impacts.
  • The regulations related to the list of designated activities and the information required for assessments are important foundational elements of the review. Both will add certainty about the assessment process. Careful drafting of these regulations is important to achieving the desired policy goals.
  • Regional and strategic assessments could help respond to the interest in cumulative effects, far better than considering cumulative assessments on a project-by-project basis. Those assessments will take a strong commitment of time and resources to complete.
  • Similarly, it will be challenging for project developers to respond to the interest in assessing alternative projects in addition to alternative means to carry out a project. The cost and effort of assembling information to assess a designated project is substantial already, without the added burden of researching undefined alternatives.
  • While the IAA allows the Minister to approve a provincial assessment process as a substitute, the Minister must be satisfied that the provincial assessment meets the same requirements as the federal assessment. Given the expanded scope of the new federal assessment, the substitution process will face challenges. The substitution arrangements will require meticulous planning to withstand inevitable legal challenges.

The ambitious blueprint laid out by Bill 69 will require substantial federal resources—people, time and expertise—to achieve its goals of increasing public confidence in the process and creating more certainty for project developers. In a world where capital for resource development projects is mobile, Canada must have an efficient and effective project review process to compete to attract capital to develop our natural resources and civil infrastructure.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Venetia Whiting
In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions