Impact Assessment for Projects on Federal Lands and Outside Canada: The 'Federal Projects' Process

• Author: Jamie Kneen
• Pages: 388-411

388

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Impact Assessment for Projects on Federal

Lands and Outside Canada: The “Federal

Projects” Process

Jamie Kneen

A. INTRODUCTION

One vexing issue for next-generation impact assessment (IA) processes

is ensuring the proper assessment of projects and undertakings that

the government either undertakes itself or funds in other jurisdictions.

Along with projects receiving federal funding, projects on federal lands

and Canadian overseas development assistance are clearly within federal

jurisdiction for implementing the IA process. Projects on federal lands

could include activities such as work in ports, in national parks, and on

Indian reserves. Projects outside Canada could include infrastructure

or initiatives in the areas of agriculture or aquaculture, for example, dir-

ectly funded or implemented by the Canadian government elsewhere in

the world.1 Ensuring that such projects undergo IA is part of the federal

government’s role as guardian and custodian of the public good, but it

1 In s 2 of the Impact Assessment Act, SC 2019, c 28, s 1, “federal lands” is dened as

(a) lands that belong to Her Majesty in right of Canada, or that Her Majesty in

right of Canada has the power to dispose of, and all waters on and airspace

above those lands, other than lands under the administration and control of

the Commissioner of Yukon, the Northwest Territories or Nunavut;

(b) the following lands and areas:

(i) the internal waters of Canada, in any area of the sea not within a province,

(ii) the territorial sea of Canada, in any area of the sea not within a province,

(iii) the exclusive economic zone of Canada, and

(iv) the continental shelf of Canada; and

Impact Assessment for Projects on Federal Lands and Outside Canada | 389

also provides the opportunity for public participation and improved

decision making, as well as the potential to set a positive example for

other jurisdictions, both nationally and internationally. The Impact

Assessment Act (IAA)2 makes specic provisions for the assessment of pro-

jects on federal lands and projects outside Canada; however, as detailed

in this chapter, these provisions are awed and are further weakened by

the absence of any linkage between them and the rest of the Act.

Specically, this chapter explores the process set out in the Act for

the assessment of projects on federal lands and projects outside Canada;

how this process diers from the rest of the Act and from previous gen-

erations of federal environmental assessment legislation; the practical

and policy reasons for this; the benets and drawbacks of this approach;

and, nally, what can be done to address identied shortcomings.

B. A DIFFERENT ASSESSMENT PROCESS

Essentially, the IAA sets out a completely dierent and separate pro-

cess for the assessment of projects on federal lands and projects outside

Canada. I call it the “federal projects” process to dierentiate it from the

Act’s standard process for designated projects.3 In recognition of the clear

federal authority in these areas, all projects on federal lands and federally

funded projects outside Canada are captured, and in sections 81 to 91,

the Act prescribes a specic IA process for them. The federal projects

process and the standard assessment process established in the Act have

surprisingly little in common, although they are administered by the

same agency and incorporated into the same public registry. The federal

projects process applies to many more projects than the standard assess-

ment process, but with greatly reduced timelines and process require-

ments in areas such as opportunities for public participation. It even

has dierent factors to consider in decision making, as outlined below.4

) reserves, surrendered lands and any other lands that are set apart for the use

and benet of a band and that are subject to the Indian Act, and all waters on

and airspace above those reserves or lands. (territoire domanial)

2 Ibid.

3 The less-than-illuminating heading in the Act is “Duties of Certain Authorities in

Relation to Projects.”

4 To be clear, even if designated projects — those falling within the denitions of the

Physical Activities Regulations (SOR/2019-285) — are covered by the federal projects pro-

cess, they would still be subject to the standard impact assessment regime under the IAA.