IAA Project List Comment Period Closing On September 27

On July 30, the Impact Assessment Agency of Canada (the Agency) launched public consultations to seek feedback on three regulatory initiatives under the Impact Assessment Act (the IAA), which have the potential to significantly change the way proponents navigate the impact assessment process:

1. The Project List: A review of the Physical Activities Regulations that identifies the projects that may require an impact assessment, with the comment period closing on September 27, 2024;
2. The Indigenous Co-Administration Framework: A policy and regulatory framework for Indigenous co-administration agreements, with the comment period closing on October 28, 2024; and
3. The Ministerial Exclusion Order: Proposed amendments to the Designated Classes of Projects Order for non-designated projects on federal lands and outside Canada, with the comment period closing on October 10, 2024.

As part of the consultation, the Agency has published discussion papers on both the Project List review and the Indigenous Co-Administration Framework, along with a summary of the proposed amendments to the Ministerial Exclusion Order. These public comment periods follow the coming into force of amendments to the IAA on June 20, 2024 and the publication of a new Cabinet Directive on Regulatory and Permitting Efficiency for Clean Growth Projects (the Cabinet Directive), which was published on July 5, 2024. Taken collectively, this is the Agency's most significant series of consultations on regulatory initiatives since the IAA came into force on August 28, 2019.

What you need to know

• The Project List is undergoing its first review since the IAA came into force. The Agency has published a discussion paper offering 15 potential options to amend the regulation, which span the ten sectors included in the Project List. After the comment period closes on September 27, 2024, the Agency plans to prepare a report for the Minister of Environment and Climate Change with their conclusions and recommendations, and ultimately seek a decision on changes to the Project List regulation.
• The Agency and an Indigenous Circle of Experts have co-developed a discussion paper on an Indigenous Co-Administration Framework to support the implementation of the IAA. The discussion paper contemplates the development of a new regulation under the IAA that would allow the Minister to enter into Indigenous co-administration agreements, expanding the roles and powers of Indigenous entities at different stages of the impact assessment process. While this approach is advanced as one option, the discussion paper contemplates flexibility for other approaches. This comment period ends on October 28, 2024, and the feedback received will inform next steps.
• Amendments to the Ministerial Exclusion Order are being proposed that would add certain new classes of projects to the list of projects on federal lands or outside Canada that are exempt from the impact assessment process. These classes of projects are defined as those that cause insignificant adverse environmental effects and would therefore not be subject to the requirements for an environmental effects determination under the IAA. This comment period closes on October 10, 2024.

The review of the Project List

The Project List is a regulation that serves as the principal mechanism for determining which major projects will be subject to the federal impact assessment process. Its purpose is to identify projects with the greatest potential for adverse environmental effects in federal jurisdictions. The Project List was published in 2019 and is subject to a five-year review process pursuant to the IAA, which has prompted this review.

The 2019 Project List contains 61 entries that cover 10 different sectors: mines and mills, nuclear facilities, oil and gas, transmission lines and pipelines, renewable energy, transportation, hazardous waste, water projects, national parks and protected areas, and defence projects. Of these, approximately two-thirds are project types carried out on federal lands or are federal works and undertakings. The other project types are primarily provincially regulated and have the potential for adverse effects on areas of federal jurisdiction, such as fish and fish habitats, migratory birds, and impacts on Indigenous peoples.

In its discussion paper, the Agency lists the following four objectives of the Project List review:

1. provide certainty as to which projects will be subject to the IAA;
2. ensure the Project List is appropriate in scope and focusses federal assessment on those projects with the greatest potential for adverse effects within federal jurisdiction;
3. focus resources where federal impact assessment will add value over other regulatory processes and as such reduces duplication; and
4. support the Government of Canada's clean growth agenda.

The discussion paper provides certain "options for consultation" on how the Project List could be revised and seeks feedback on those options, organized by sector. In total, the discussion paper offers 15 potential amendment options, along with additional alternative amendments, suggesting that significant adjustments to the Project List are being contemplated. For example:

• for the mines and metals sector, the Agency is considering lowering thresholds for coal projects to capture large expansions of existing coal mines;
• for the nuclear sector, the Agency is considering exempting all single Small-Modular Reactor (SMR) proposals using previously licensed technologies when proposed on Class 1A licensed sites, and exploring increased thresholds or other bases for exempting multiple SMRs using previously licensed technologies when proposed on Class 1A licensed sites;
• for the oil and gas sector, the Agency is considering removing in situ oil sands facilities and fossil fuel-fired power generating facilities from the Project List; and
• for renewable energy projects, the Agency is considering adding wave energy projects for consistency with other offshore renewables on the list, and aligning the definitions for offshore wind with the recently passed Atlantic Accord Acts.

After the comment period closes on September 27, 2024, the Agency will prepare a report for the Minister of Environment and Climate Change with their conclusions and recommendations, and ultimately seek a decision on changes to the Project List regulation. The proposed amendments will then be published in the Canada Gazette, Part I for public comment, prior to their final publication in the Canada Gazette, Part II.

The development of an Indigenous Co-Administration Framework

The Supreme Court of Canada's opinion on the constitutionality of the IAA, recent IAA amendments and the Cabinet Directive all refer to the importance of partnerships with Indigenous Peoples in a manner consistent with the United Nations Declaration on the Rights of Indigenous Peoples to promote the efficient and effective implementation of the IAA and to advance major projects across Canada.

As discussed in a recent bulletin, the IAA currently requires the Agency to consider, when determining whether or not a project should be subject to a federal assessment, if "a means other than an impact assessment exists that would permit a jurisdiction to address the adverse effects within federal jurisdiction" (the IAA defines "jurisdiction" to include certain Indigenous governing bodies). Additionally, the amendments create opportunities for assessments undertaken by other jurisdictions to substitute all or part of a federal assessment, further creating the potential for cooperation agreements with Indigenous groups and Indigenous-led assessments.

Even before the IAA was amended, Indigenous peoples were already engaged in many aspects of the impact assessment process. Importantly, section 114 of the IAA enables the Minister, once regulations are in place, to enter into agreements with Indigenous governing bodies and other entities (such as co-management bodies established under land claims agreements).

The Agency has worked with its Indigenous Advisory Committee and Indigenous Circle of Experts to develop a discussion paper on creating a policy and regulatory framework for "Indigenous Co-Administration Agreements". The Agency is seeking feedback to:

• gauge feasibility and interest in this mechanism;
• understand viewpoints and perspectives regarding the options and considerations presented;
• identify any considerations that may not have been included; and
• receive any other information to shape the drafting of the regulatory proposal and policy framework or complementary guidance to maximize Indigenous leadership in impact assessment.

The discussion paper contemplates a new regulation under the IAA that would allow for the Minister to enter into co-administration agreements with certain Indigenous groups. This is referred to as a "a new tool in the toolbox" that could facilitate shared decision-making, recognizing that the power to make the final determination would in most cases continue to rest with the Minister or Governor in Council. The discussion paper refers to a "spectrum of opportunities" between Indigenous-led, joint-led and Agency-led roles and decision-making powers at all stages of the impact assessment process.

This comment period ends on October 28, 2024 and the feedback received will inform next steps, which could include the development of further policy documents, regulations or co-administration agreements—all aimed at maximizing Indigenous partnership in impact assessments.

Proposed amendments to the Ministerial Exclusion Order

The Ministerial Exclusion Order sets out classes of non-designated projects on federal lands and outside Canada that, if carried out, will cause only insignificant adverse environmental effects and would not be subject to the requirements for an environmental effects determination under the IAA¹. It lists about 50 classes of projects that have been deemed to be low-risk, straightforward, and routine, such as buildings with a small footprint, certain utility infrastructure and small above-ground petroleum storage tanks.

The proposed amendments would add new classes of projects to the Ministerial Exclusion Order, including prefabricated structures, navigational aids, scientific data collection instruments and some underground petroleum tanks. Each of these classes of projects are anticipated to only cause insignificant adverse environmental effects, and therefore would automatically be exempt from the IAA process.

This comment period follows a survey of federal, port and airport authorities, and closes on October 10, 2024

Footnote

1. Designated Classes of Projects Order, SOR/2019-323./small>

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.