26 Impact Assessment Acts

Impact Assessment in Canada

When considering environmental assessment or perhaps the wider scope of impact assessment in Canada it is important to remember Canada is a federation with a constitution.  The constitution sets out authorities for different levels of government and in doing so was not clear on environmental issues, so there is overlap.

Federal legislation affects federal projects (in national parks, buildings etc.), interprovincial projects, and federally regulated aspects of the environment for selected large impact projects.  Additionally, each province has its own set of environmental assessment regulations and rules for projects that are set within the province.  The territories also have environmental assessment regulations.  As a territory does not have constitutional authorities, the regulations are passed at the federal level, for local administration.

For major projects, there can be overlapping jurisdictions.  The federal government does have a process where they can enter into an agreement with a province and designate that the provincial process is equivalent.  At the current time (sic 2022) only British Columbia has a working agreement on equivalency with the federal government.  The goal of these agreements is to have one assessment process per project.

So there are as many as 14 different assessment processes in Canada.  Each has their unique aspects, but there are some common underlying principles.  One of these underlying principles is the “Duty to Consult” that applies to any government review of a project.

Federal

Canadian Environmental Assessment Act, 2012, SC 2012, c 19, s 52

The Canadian Environmental Assessment Act, SC 2012, c19, s52 (CEAA, 2012) had a major revision in 2012.  It’s scope was to assess selected projects within the scope of federal responsibilities.  It was replaced in 2019 by the Impact Assessment Act SC 2019, c 28, s 1.  CEAA (2012) is still relevant in 2022 as many projects undergoing review were grandfathered under the CEAA rules.

Impact Assessment Act SC 2019, c 28, s 1

The federal Impact Assessment Act (IAA) was published in 2019 as a result of a commitment by the newly elected government to make the rules more transparent, fairer and include stronger commitments to consultation with Indigenous peoples.

In the IAA there is strong commitment to action on climate change. Among the mentions of climate change are the following:

• From the preamble, “Whereas the Government of Canada recognizes that impact assessment contributes to Canada’s ability to meet its environmental obligations and its commitments in respect of climate change;”
• From Section 22, Factors; “(i) 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 in respect of climate change;”
• From  Section 66, Factors – Public Interest: “(e) 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 in respect of climate change.”
• From Section 95, Ministers Power; “(2) The Minister may deem any assessment that provides guidance on how Canada’s commitments in respect of climate change should be considered in impact assessments and that is prepared by a federal authority and commenced before the day on which this Act comes into force to be an assessment conducted under this section.”

Under the IAA there are five current regulations:

British Columbia

British Columbia has recently (2019) changed its assessment act to the Environmental Assessment Act SBC 2018 Chapter 51. The older Environmental Assessment Act, SBC 2002, Chapter 43 is still relevant as many projects were grandfathered under it.

Greenhouse gases is mentioned in the act and assessments must consider British Columbia’s Climate Change Accountability Act, SBC 2007, Chapter 4 (Environmental Assessment Act SBC 2018, Chapter 51,s 25 (2) h).  British Columbia’s climate change provisions are the most compatible with the federal climate change provisions.  

The Environmental Assessment Act is administered under the British Columbia Environmental Assessment Office abbreviated as EAO.  As with other environmental assessment regulatory offices, the EAO maintains a public database, issues instructions and guidelines and evaluates assessments sent to it (BCEAO, n.d.)

Alberta

The need for Environmental Assessments in Alberta is defined from the Environmental Assessment Regulations 112/93.  This regulation is written under the authority of the Alberta Environmental Protection and Enhancement Act (AEPEA).  Also written under the authority of the AEPEA is the Environmental Assessment (Mandatory and exempted Activities) Regulation 112/1993.  This later defines which activities are mandatory, which activities are excluded.  Activities that are not on either list are discretionary and require a screening review to determine if a full environmental assessment is required.

In Alberta there are two distinct streams of assessments, oil and gas and coal facilities are regulated and approved by the Alberta Energy Regulator.  Other projects that need assessment under the regulations are reviewed under the Alberta Environment and Parks umbrella.  Both streams must meet the intent of the regulations.

The regulations do not expressly mention climate change or greenhouse gases.

All environmental assessments must be conducted in accordance with the Duty to Consult as articulated by Alberta’s Consultation Office. (ACO).  The ACO finalizes the decisions on Duty to Consult for both Environmental Assessments reviewed by AEP and also by the AER.

Saskatchewan

Saskatchewan manages environmental assessments using its Environmental Assessment Act SS 1979-80, c E-10.1.   The Environment Assessment Act (EAA) provides the Saskatchewan government the authorities to conduct Impact Assessments.  The EAA establishes Minister’s authorities, procedures and requirements of what projects might require an assessment.  There are no subservient regulations (Canlii, 2022).

The government of Saskatchewan maintains a public database of projects within the province (Saskatchewan, n.d.).  There is no mention of climate change or greenhouse gases in its EAA.

Manitoba

Manitoba does not have a dedicated environmental assessment act, instead they include environmental assessment in their The Environment Act, CCSM c E125.  Although similar to Alberta, the Manitoba act has significant discussion of the assessment process.

Manitoba’s act also has an explicit discussion on climate change and a requirement that it must be considered in the assessment (The Environment Act, CCSM c E125. Section 12.0.2).

The Manitoba government has a bureau (Environmental Approvals Branch) that administers the process (Manitoba, n.d.).  They also maintain a public registry of projects. The Classes of Development Regulation Man Reg 164/88 establishes those projects that requires an assessment.

In addition to regulations of an administrative nature, Manitoba also has a regulation called the Joint Environmental Assessment Regulation, Man Reg 126/91, which allows for joint environmental assessments.  Manitoba does not have a current (2022) agreement with the federal government on equivalencies for the Impact Assessment Act.

Ontario

Ontario has a dedicated environmental assessment act; Environmental Assessment Act, R.S.O. 1990, c. E.18  Ontario has had environmental assessment requirements since 1975, but like everywhere else in Canada, the details have changed with time.  Current changes (sic 2020) include using a list based approach to determine when a detailed environmental assessment is required.

The act does not specifically mention climate change or greenhouse gases. Climate might be considered due to other criteria listed in the act.  Additionally there are various guides to help proponents with a complete analysis.  On of these is the Ministry of Transportation Air Quality & Greenhouse Gas Guide.

Ontario also has an environmental registry.  It’s scope is much larger than similar registries as  Ontario does not limit searches to environmental assessments.  This larger scope may have the potential effect of looking for a particular project more challenging,

Quebec

In Quebec, environmental assessments are completed under the authority of the Environment Quality Act, CQLR c Q-2.   In the preamble the act states one of its aims it “promotes the reduction of greenhouse gases as well as adaptation to climate change and makes it possible to take into consideration the evolution of knowledge and technologies as well as the issues related to climate change” (Environment Quality Act, CQLR c Q-2, Preliminary Provision)

Quebec also has a registry that was established on March 23, 2018.  The search engines is listed in French.

Under the Environmental Quality Act there are 102 regulations (CANLII, 2022).  Perhaps one important regulation for environmental assessment is Regulation respecting the environmental impact assessment and review of certain projects, CQLR cQ-2, r23.1  This regulation sets the process for environmental assessment in Quebec and includes specific provisions for including climate change.

New Brunswick

The Environmental Impact Assessment Regulation 87-83 is written under the authority of the New Brunswick Clean Environment Act, RSNB 1973, c C-6.  The regulations establishes the authorities of the minister to set the assessment process and remedies for non-performance. The regulation was originally written in 1987.

No mention is made of climate change or greenhouse gases.  New Brunswick has a website dedicated to environmental assessments.  As with other jurisdictions they maintain a public database of projects.  They also have various guides, including “A Guide to Environmental Impact Assessment in New Brunswick“.    The guideline does mention climate change, but refers to a federal guideline and website that is no longer active.  (Department of Environment and Local Government, 2018).

Nova Scotia

Nova Scotia also includes environmental assessment in their environment act (Environmental Act, SNS 1994-95, c 1,  Part IV).  In addition to the act there is also a regulation, Environmental Assessment Regulation N.S. Reg. 221/2018, which defines how the province will review new projects.

The regulation has the following clause that could be used to ensure climate is taken into account (Environmental Assessment Regulation N.S. Reg. 221/2018, S12(i)):

         12 (i)  such other information as the Minister may require.

The Environmental Assessment Board Regulations, NS Reg 27/95 establishes the environmental review board.  The Nova Scotia government also has a web page where more information can be found on their process.  It also includes a public registry of projects under assessment (Nova Scotia, n.d.)

Prince Edward Island

Prince Edward Island authorizes and requires environmental assessments through its Environmental Protection Act, RSPEI 1988, c E-9, section 9.  It is a relatively short legislative authorization.  The designated minister has the authority to add conditions to any approval issued after an environmental assessment (Environmental Protection Act, RSPEI 1988, c E-9, section 28).

The government department of Environment, Energy and Climate Action administers the environmental assessment process.  PEI has no dedicated regulations, but do have an extensive guideline (PEI, 2010).  The department maintains a public database of projects under review (PEI, n.d.).

The guideline makes no mention of climate or greenhouse gases.

Newfoundland and Labrador

Newfoundland authorizes the requirement for environmental assessments under its Environmental Protection Act, SNL 2002, c E-14.2,  It further defines environmental assessments with regulation Environmental Assessment Regulations, 2003, NLR 54/03.

The government department that is authorized by the regulation and act maintains a database of projects that dates from March 2000 (Environment and Climate Change, n.d.).  The regulations do not discuss climate change, nor does the referenced guide  “Environmental  Assessment … A guide to the Process“.

Interestingly the Department of Municipal Affairs and Environment conducted a public engagement into updating the environmental assessment process.  One of the suggestions was to incorporate climate change and targets for reduction.  The results of the engagement were published in 2020. (Department of Municipal Affairs and Environment, 2020)

Territories

As noted regularly, Canada’s three territories do not have authorities defined in the Canadian constitution.  Territorial authorities are derived from authorities devolved from the federal government.

The federal Impact Assessment Act does not apply to the territories themselves, as each territory has a dedicated assessment act passed for the them by the federal government.  There is a dedicated assessment act for each territory. With all territorial assessment acts, any Indigenous settlement agreements must also be respected.

Nunavut

Nunavut environmental impacts are authorized under the Nunavut Planning and Project Assessment Act S.C. 2013, c. 14, s. 2.  This is an act of the Parliament of Canada with reference to the Nunavut land claims settlement.  The act creates the Nunavut Impact Review Board and the Nunavut Planning Commission to work on or with impact assessments.

The Nunavut Impact Review Board also keeps a public database for projects under its review (NIRB, n.d.).

An impact assessment created for the purposes of this act must include climate change in its scope.  The review board must include climate change as part of its considerations.

The Review Board can recommend a federal review of a project if it feels one is needed.  Criteria for the federal assessment also includes consideration of climate change.

Northwest Territories

Environmental assessment is divided into two basic areas:  The Inuvialuit Settlement Agreement area and the rest of the Territory which is covered by several review boards.

Inuvialuit Settlement Region

The Inuvialuit Settlement Region is a unique regulatory part of Canada.  The settlement region is the result of the final settlement agreement by the Inuvialuit and the Canadian Government.  It covers both land and ocean.  It also covers parts of both the Yukon and Northwest Territories.  Although most of the area is in the Northwest Territories.  This is unique as in addition to the Indigenous government structure it also covers two territorial governments and the federal government.

The Inuvialuit Settlement Region (ISR) has a screening committee to review projects.  The Environmental. Impact Screening Committee (EISC) conducts an initial screen to determine if the project is exempt, approved by the screening or needs to be referred for a full assessment.

If a project is referred, the Environmental Impact Review Board (EIRB) conducts the detailed  review.  The detailed review uses the federal rules and in the case of the oil and gas development would also engage the federal Canadian Energy Regulator (CER).  The CER is on contract with the ISR.  It Is the only land based area in the North that follows this process.

Both the EISC and the EIRB are joint committees or co-management with members nominated from various governments and the Inuvialuit Settlement Region.

Southern Northwest Territories

The Mackenzie Valley Resource Management Act  (S.C. 1998, c. 25) creates several boards that cover the remaining part of the territory.  The water boards provide the review process for new development.

The review boards include the following:

• Gwich’in Land and Water Board
• Sahtu Land and Water Board
• Wek’eezhii Land and Water Board
• Mackenzie Valley Land and Water Board

These boards review and authorize permits for industrial land and water use.  All boards and screening committees refer to the land settlement agreements.

Yukon

Assessments in the Yukon are regulated under the Yukon Environmental and Socio-economic Assessment Act S.C. 2003, c. 7 (YESAA).  The YESSA is administered by the Yukon Environmental and Socio-economic Assessment Board (YESAB), which provides guidance on process, the recommendations on the assessment to the decision makers and a public database on projects that are being assessed (YESAB, n.d.). The board is resident in the Yukon, but the enabling act is a federal act.

The act’s regulations provides a list of projects that are mandatory for an assessment, those that are excepted and those that need further guidance on whether a project needs an assessment (YESAB, n.d.).

The current YESAA does not explicitly include climate change or greenhouse gases in the wording.

An interesting project the YESAB is currently working on is the “Evaluation of the Effects of Industrial Activities on the Personal Safety of Indigenous and Non-Indigenous Women and Girls and LGBTQ2S+ Persons in Yukon” (YESAB, 2021).  This project sounds similar to the requirement of gender plus assessment under the federal Impact Assessment Act.

Section Conclusion

Whew, there is a lot of regulation on environmental assessment!  They each have slightly different takes on environmental assessment.  Some jurisdictions have dedicated acts, some just a regulation authorized by a variety of environmental acts.  Most jurisdictions have historical roots of at least 20 years, some much older.  Some have been substantially updated, others have had only minor changes. In common, they all require transparency, in that there are public databases to look up the details of various projects.

Some assessment processes have been updated and consider climate change in their regulations.  Canada, Quebec and British Columbia are the most visibly aligned on the topic.  But the majority of jurisdictions do not mention climate change in their legislation.  Most jurisdictions have guides to their processes, and some of the guides do tackle climate change.

In reviewing jurisdictions across Canada there are such diversity of approaches.    While all aspire to protecting the environment and natural resources, the differences are confusing.  With environmental science rapidly evolving, and societal priorities changing, it would seem overall we could do better.

Learning Questions

1. Using the public databases, find a project from a jurisdiction and consider:
   • Where is it in the process?  Is it approved?
   • If approved, can you find the proponents  report as well as the approvers report?
   • What was the time span between the the first entry for the project and final approval if received?

References

We have diverted from the strictly alphabetical reference list as there is similarity in names of documents and can be quite confusing to find the reference.  So instead we have grouped them by jurisdiction in a somewhat random order, except that we put Canada at the federal level on the top of the list.

Canada

Canadian Environmental Assessment Act, 2012, SC 2012, c 19, s 52 – repealed

Impact Assessment Act SC 2019, c 28, s 1

Impact Assessment Agency (n.d.) Home page. Retrieved from https://www.canada.ca/en/impact-assessment-agency.html

British Columbia

Environmental Assessment Act, SBC 2002, CHAPTER 43.

Environmental Assessment Act SBC 2018 CHAPTER 51

BCEAO, (n.d.) Home page. Retrieved from  https://www2.gov.bc.ca/gov/content/environment/natural-resource-stewardship/environmental-assessments

Climate Change Accountability Act [SBC 2007] CHAPTER 42

Alberta

Environmental Protection and Enhancement Act, RSA 2000, c E-12

Environmental Assessment Regulations 112/1993

Environmental Assessment (Mandatory and exempted Activities) Regulation 112/1993

Saskatchewan

Environmental Assessment Act SS 1979-80, c E-10.1

Saskatchewan. (n.d.). Environmental Assessment. Retrieved from https://www.saskatchewan.ca/business/environmental-protection-and-sustainability/environmental-assessment

Manitoba

Manitoba (n.d.) Environmental assessment and licensing home page. Retrieved from https://www.gov.mb.ca/sd/permits_licenses_approvals/eal/index.html

The Environment Act, CCSM c E125h

The Classes of Development Regulation Man Reg 164/88

Joint Environmental Assessment Regulation, Man Reg 126/91

Ontario

Environmental Assessment Act, R.S.O. 1990, c. E.18

Ontario. (2022). Ontario’s Environmental Registry. Retrieved from https://ero.ontario.ca/

Ontario. (2020). Environmental guide for assessing and mitigating the air quality impacts and greenhouse gas emissions of provincial transportation projects. Retrieved from https://prod-environmental-registry.s3.amazonaws.com/2020-07/AQGHG%20Guide%20(May%202020).pdf

Quebec

Environment Quality Act, CQLR c Q-2

Quebec (2022). Environmental Assessment Registry. Retrieved from https://www.ree.environnement.gouv.qc.ca/index.asp

Nova Scotia

Environmental Assessment Regulation N.S. Reg. 221/2018

Nova Scotia Environment and Climate Change. (n.d.) Home page. Retrieved from https://novascotia.ca/nse/ea/

Environment Act, SNS 1994-95, c 1

Environmental Assessment Regulation N.S. Reg. 221/2018

New Brunswick

New Brunswick. (n.d.). Environmental Impact Assessment. retrieved from https://www2.gnb.ca/content/gnb/en/departments/elg/environment/content/environmental_impactassessment.html

Department of Environment and Local Government. (2018). A guide to environmental impact assessment in New Brunswick. Retrieved from https://www2.gnb.ca/content/dam/gnb/Departments/env/pdf/EIA-EIE/GuideEnvironmentalImpactAssessment.pdf

Newfoundland

Environmental Protection Act, SNL 2002, c E-14.2

Environmental Assessment Regulations, 2003, NLR 54/03

Department of Municipal Affairs and Environment. (2020) Guide to the Process. Retrieved from https://www.gov.nl.ca/ecc/files/GUIDE-TO-THE-PROCESS_2021-1.pdf

Department of Municipal Affairs and Environment. (2020) Projects List. Retrieved from  https://www.gov.nl.ca/ecc/env-assessment/projects-list/

Department of Municipal Affairs and Environment. (2020). Environmental assessment legislation review – what we heard. Retrieved from https://www.gov.nl.ca/ecc/files/NL-EA-Review_What-We-Heard-Summary-27Apr20.pdf

Prince Edward Island

Environmental Protection Act, RSPEI 1988, c E-9

PEI (2019). Environmental Impact Assessment (EIA) Review. Retrieved from https://www.princeedwardisland.ca/en/information/environment-water-and-climate-change/environmental-impact-assessment-eia-review

PEI (2010). Environmental Impact Assessment Guidelines.  Retrieved from https://www.princeedwardisland.ca/sites/default/files/publications/environmental_impact_assessment_guidelines.pdf

Northwest Territories

Environmental Impact Assessment Board (2023). Home page. Retrieved from https://eirb.ca/

Environmental Impact Screening Committee. (2023). Home page.  Retrieved from http://www.screeningcommittee.ca/

Mackenzie Valley Resource Management Act (S.C. 1998, c. 25)

Nunavut

Nunavut Planning and Project Assessment Act S.C. 2013, c. 14, s. 2

Nunavut Impact Review Board (NIRB). (n.d.). Home page. Retrieved from https://www.nirb.ca/

Nunavut Impact Review Board (NIRB). (n.d.). Search the public registry. Retrieved from https://www.nirb.ca/application?strP=r

Nunavut. (n.d.). Home page. retrieved from https://www.nunavut.ca/

Yukon

Assessable Activities, Exceptions and Executive Committee Projects Regulations SOR/2005-379

Yukon Environmental and Socio-economic Assessment Act S.C. 2003, c. 7

Yukon Environmental and Socio-economic Assessment Board (YESAB). (n.d.) Assessment process. Retrieved from https://www.yesab.ca/the-assessment-process

Yukon Environmental and Socio-economic Assessment Board (YESAB). (n.d.). Home page. Retrieved from https://www.yesab.ca/news/evaluation-of-the-effects-of-industrial-activities-on-the-personal-safety-of-indigenous-and-non-indigenous-women-and-girls-and-lgbtq2s-persons-in-yukon