Canada: Nouveaux délais fédéraux pour l'approbation des projets énergétiques

Le gouvernement fédéral a proposé de nouvelles règles controversées visant à régir l'approbation de projets, y compris bon nombre de grands projets énergétiques. Ces nouvelles règles pourraient mettre en jeu le rythme et l'orientation des projets de développement du secteur de l'énergie au Canada.

Une traduction de ce billet sera disponible prochainement.

The federal government has proposed controversial new rules to govern approvals for projects, including many Major Energy Projects. The pace and direction of future development of Canada's energy sector could lie in the balance.

  • Bill C-69 proposes a new 5-stage Impact Assessment process that could easily take more than 5 years to complete.
  • The federal proposals are designed to encourage the regulatory phases of the Impact Assessment process to be completed within approximately 2 ½ years – or roughly 30 months.
  • Other portions of the process, which are in the hands of project proponents, are expected to be completed within a further 3 years – or roughly 36 months.
  • Whether these timelines will actually work or not will likely depend on the commitment of the federal government to respect and apply the legislated timelines rather than to suspend or extend them.

New Federal Timelines

Federal review processes for Major Energy Projects1 have, over the last decade or two, become lengthier, more controversial and less predictable. In response, the federal government adopted a series of measures aimed at controlling the length of those processes. These measures have included informal guidelines, directives and service standards and more recently formal legislated timelines to govern project reviews2.

The use of legislated timelines to constrain the length of federal review processes is continued in Bill C-69, which introduces the federal government's proposed Impact Assessment process. The legislated timelines, and their rationale, are laid out in the 2018 Timeline Consultation Paper3:

To ensure predictability for Indigenous groups, provinces, stakeholders and the public, legislated timelines would be established for each phase of federal assessments. . . clarity on how [those] timelines will be managed will ensure greater predictability4.

In response to comments received on the Timeline Consultation Paper, the federal government released a more detailed Technical Guide<5 to explain in greater detail the various phases of its proposed Impact Assessment process and, crucially, the expected timelines. According to the Technical Guide, the federal Impact Assessment process is expected to consist of five phases. The process would be managed by the new Impact Assessment Agency except for more complex and controversial projects which would be referred to a Review Panel. The phases of the Impact Assessment process, and the applicable legislated timelines, are as follows:


(in days)




Review Panel


Early Planning



Impact Statement



Impact Assessment
















Phase 1: Early Planning

Early Planning is the first step of the Impact Assessment process and is triggered by a proponent filing an Initial Project Description. The Early Planning phase involves initial consultation with affected stakeholders, including affected Indigenous peoples. It also attempts to identify and plan the study of key impacts; and it determines whether a full and formal Impact Assessment will be required. The key deliverable at the end of the Early Planning phase is a set of Tailored Impact Statement Guidelines to guide the preparation by the proponent of a formal Impact Statement for a proposed project. The Technical Guide describes (at page 9) the applicable timeline for the Early Planning phase as follows:

The Impact Assessment Act proposes a new timeline of up to 180 days for the planning phase. It would begin when a proponent submits an initial description of the designated project to the Agency and ends when the Agency issues the notice of commencement and provides the proponent with Tailored Impact Statement Guidelines.

Various submissions in response to the Timeline Consultation Paper from the proponent community have raised concerns that this is an entirely new phase in federal project reviews. Moreover, there is a great deal that must be accomplished in this planned 180 day timeline. Absent strict and compartmentalized timelines for each part of the Early Planning phase there is concern in the proponent community about whether the 180 day timeline for this phase can or will be consistently met.

Phase 2: Impact Statement

Phase 2 in the process is the preparation of an Impact Statement by the proponent. This is the responsibility of the proponent and there is no specific or expected timeline set out – presumably because as there is little or no federal regulatory component or responsibility in this phase. According to the Technical Guide (at page 4) proponents should "take the time they need" to prepare an Impact Statement but must submit one no later than 3 years after the Tailored Impact Statement Guidelines have been issued. This phase concludes once the proponent's Impact Statement has been filed and the Agency has been able to determine that the proponent has delivered all relevant information and studies required by the Tailored Impact Statement Guidelines (Technical Guide, page12).

The actual timing required to prepare an Impact Statement is not discussed at length in the Technical Guide. Submissions from the proponent community suggest this timing could vary widely – and could plausibly take up the better part of 3 years6. The time it takes for proponents to prepare an Impact Statement would depend, among other things, on the requirements for field studies, the amount of engineering and design information required and whether there are forms or filing manuals adopted to permit some of the most time consuming information to be prepared prior to the delivery of the Tailored Impact Statement Guidelines.

In any case though, whether this turns out to be a relatively expedited or a relatively lengthy process, it is not really an "add-on" to any timeline for a project review. The collection of the data required for an Impact Statement in one form or another is necessary in any assessment process and the proponent would need to take the time to assemble this information in any event regardless of the specific process design for project reviews.

Phase 3: Impact Assessment

Phase 3 is the Impact Assessment itself. In most cases the Impact Assessment would be carried out under the control and direction of the Agency but complex and controversial projects are expected to be referred to a Review Panel. The Impact Assessment phase includes detailed consultation with Indigenous peoples affected by the proposed project and all public participation activities. This Impact Assessment phase must be completed within 300 days of the Agency posting a notice it is satisfied with the Impact Statement filed by the proponent (Technical Guide, page 18). For the more complex and controversial Impact Assessments to be conducted by a Review Panel, the maximum time to complete the Impact Assessment is 600 days following the appointment of members to the Review Panel (Technical Guide, page 20).

The Impact Assessment phase would conclude with the preparation of an Impact Assessment Report for delivery to the Minister.

Of particular interest to members of the proponent community is the nature of the public participation component during this Impact Assessment phase. Public comment periods, of the kind typically followed by the British Columbia Environmental Assessment Office or by the Federal Energy Regulatory Commission in the United States, are generally seen in the proponent community as more reasonable and expeditious than some of the more formal processes that have previously been followed, for example, by the National Energy Board. The exact nature of the public participation process will likely have to await the release of more detailed regulations and actual experience with a number of early project reviews.

Phase 4: Decision-Making

Phase 4 is where a Decision whether or not to approve a project would be made either by the Minister or, for the more complex and controversial Impact Assessments, by the federal Cabinet. The Technical Guide notes (at p. 25) that any Decision by the Minister must be made within 30 days after the Impact Assessment Report has been posted. Any Cabinet Decision must be made within 90 days after posting the Report.

Phase 5: Follow-Up

Finally, phase 5 is identified as Follow-Up, Monitoring and Compliance and Enforcement. Many of the responsibilities of this phase will customarily be performed after completion of construction and over the life-cycle of the project. However, one critical post-Decision responsibility in the Follow-Up phase is monitoring to ensure any necessary pre-conditions to a Decision have been complied with prior to any authorization to a proponent to commence actual construction. No specific timeline has been established for the completion of any portion of this Follow-Up phase. With the proliferation of conditions, both in terms of number and significance, and the monitoring of other pre-construction steps, a year or more can elapse between formal approval and commencement of construction7.


The federal government has said the timelines for the three fully regulated phases of the Impact Assessment system – the Early Planning, Impact Assessment and Decision-Making phases – will be between 510 to 870 days. That equates to roughly 18 to 30 months for the pure regulatory portion of the process.

Add to that, however, the time (up to 3 years or 36 months) required to prepare an Impact Statement meeting the requirements of any Tailored Impact Statement Guidelines, and the timeline from first filing to receipt of an approval could be in the range of 5 years or more (60 to 66 months). Any additional post-approval but pre-construction steps, broadly included in the Follow-Up phase but not subject to timeline limits, would be in addition to this.

This view of the potential time that a federal project review process could take is shared by various members of the proponent community, notably including the Canadian Nuclear Association8:

The government's own timelines estimate 5 years of federal time for a Joint Review Panel assessment. Our members believe it will be significantly longer.

Still it wouldn't be quite fair to say that the proposed Impact Assessment review process will necessarily represent a significant increase in the timeline for project approvals. The pure regulatory time, projected to be about 30 months subject to extensions, would be roughly competitive with other comparable jurisdictions and is not all that different from the timelines contemplated in CEAA 2012. And the period – about 36 months but possibly less – for preparing an Impact Statement is not properly described or considered as additional approval time. That kind of data collection and analysis has to be done now for Major Energy Projects – but currently tends to be done on a pre-filing basis, often prior to any announcement of a decision to proceed to obtain regulatory approvals.

A review of submissions from the proponent community in response to the Timeline Consultation Paper shows a few areas of particular concern about applicable timelines, including:

  • the process and timing for the Early Planning phase;
  • the process and timing required to prepare Impact Statements;
  • the nature and timing of any public participation process to be followed during the Impact Assessment phase and whether it can and will be conducted in a reasonably, timely and efficient manner; and
  • the degree to which the expected timelines will be actually respected and enforced by the federal government without invoking any discretionary extensions or suspensions.

While Bill C-69 has had Third Reading in the House and is currently before the Senate, the consultation process is by no means over. As we proceed through the balance of the consultation process we can likely expect the proponent community to focus on:

  • negotiating mechanisms to ensure processes adopted by the federal government are designed and enforced, as much as possible, to meet the legislated timelines;
  • settling, with as much detail as possible, the circumstances under which legislated timelines can be extended or suspended.

We have also noted a variety of comments in submissions from the proponent community warning of the potential competitive impacts of adopting the proposed Impact Assessment system – unless it is carefully implemented to ensure the proposed legislated timelines are actually met. To that end, there is considerable support to ensure that, after the Impact Assessment system comes into being, there is a sustained effort by federal authorities to track the actual timing performance of the new system and to benchmark the results against the project review processes in comparable and competing jurisdictions.


1 For our purposes, Major Energy Projects are those projected to entail costs of at least $1 billion. See Reed, Kurtis, et al. "Timing of Canadian Project Approvals: A Survey of Major Projects." Alberta Law Review, vol. 54, no. 2, 2016, pp. 311–350 at p. 321.

2 See Drance, Jonathan, et al. "Federal Energy Project Reviews: Timelines in Practice." Energy Regulation Quarterly, vol. 6, no. 3 2018, Sept. 2018. In particular, see discussion (pages 25-26) of various federal initiatives to impose timelines on project reviews including the Cabinet Directive on Improving Performance of the Regulatory System for Major Resource Projects (2007); various service standards reviewed in the Audit of the Major Projects Management Office (2010); the Establishing Timelines for Comprehensive Studies Regulation (2010) and the Canadian Environmental Assessment Act (2012)

3 "Consultation Paper on Information Requirements and Time Management Regulations." Government of Canada, 19 Apr. 2018

4 Timeline Consultation Paper; at page 6

5 "The Proposed Impact Assessment System: A Technical Guide." Government of Canada, 14 Aug. 2018

6 "CAPP Detailed Comments on Consultation Paper on Information Requirements and Time Management Regulations." Canadian Association of Petroleum Producers, Jun. 2018, p. 4

7 "Pipelines, Prices, and Promises: The story of western Canadian market access" IHS Markit, Apr. 2017. See in particular the discussion (page 9) under the heading "The process does not end with a permit".

8 "Submission on Bill C-69 to the House of Commons Standing Committee on Environment and Sustainable Development." Canadian Nuclear Association, 6 Apr. 2018, p.2

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.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Sign Up
Gain free access to lawyers expertise from more than 250 countries.
Email Address
Company Name
Confirm Password
Mondaq Newsalert
Select Topics
Select Regions
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