Project Impact Assessments: Triggering and Coverage

• Author: Steph en Hazell
• Pages: 140-164

140

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ProjectImpact Assessments:

Triggering and Coverage

Stephen Hazell

A. INTRODUCTION

Any law is eective only to the extent to which it is applied. Thus, any

law that is directed primarily to assessing the impacts of proposed

development projects is eective only to the extent to which that law is

applied to projects that warrant assessment. The rules for determining

which categories of projects are to be assessed under the law (triggering)

and the breadth of application of the law to the wide variety of develop-

ment projects being considered by proponents (coverage) are arguably

as important as the rules for the assessment process itself.

Two questions guide this chapter. First, how eectively are the

purposes of the Impact Assessment Act (IAA)1 likely to be met given the

triggering process and coverage of projects under the IAA and its regu-

lations? Second, do the triggering and coverage provisions facilitate its

use in practice in addressing the acknowledged crises of climate change

and biodiversity loss?

This chapter addresses the process of triggering of projects for

impact assessment under the IAA, considering how impact assessments

are triggered and how the triggering process under the IAA diers from

previous laws. Next, the chapter reviews the regulatory authority and

key policies the government says it applied to designate projects for

1 SC 2019, c 28, s 1.

ProjectImpact Assessments: Triggering and Coverage | 141

inclusion on the Physical Activities Regulations (Project List),2 as well as

the lack of transparency in applying these policies to the development

of the Project List. Finally, the chapter reviews the categories of pro-

jects with related thresholds that are included on the Project List and

assesses whether or not as written it advances the purposes of the IAA

and eorts to address climate change and biodiversity loss.

The chapter focuses on triggering and coverage relating to the

impact assessments of projects as well as to determinations by federal

authorities of the signicance of the adverse environmental eects of

projects to be carried out on federal lands or outside Canada.3 Trig-

gering and coverage issues relating to strategic and regional assessment

processes are addressed in chapters 11 and 17.

B. TRIGGERING IMPACT ASSESSMENTS OF PROJECTS

Triggering refers to the process for determining which categories of

projects are subject to an impact assessment. Federal assessment laws

have used one of two broad approaches to triggering. The rst approach,

“all in unless excluded,” provides that all projects that have an aspect

falling under federal jurisdiction are subject to impact assessment

unless excluded by statute or regulation.

The Canadian Environmental Assessment Act (CEAA 1995)4 used the “all

in unless excluded” approach for triggering undertakings in relation to

physical works. Undertakings in relation to physical works were excluded

if they were to be carried out in response to emergencies, for reasons

of national security,5 or if they had insignicant environmental eects.6

Physical activities not in relation to physical works (e.g., low-level ying

2 SOR/2019-285.

3 IAA, above note 1, ss 82–91.

4 SC 1992, c 37. The entry into force of the Act was delayed until 1995 to allow for key

regulations to be developed and passed.

5 Ibid, s 59. See Meinhard Doelle, The Federal Environmental Process: A Critique and Guide

(Toronto: LexisNexis Canada, 2008) at 83–84 and 86–87 for a more detailed discussion

of triggering under CEAA 1995.

6 CEAA 1995, above note 4, s 59(c)(ii); Exclusion List Regulations, SOR2/2007-108 (repealed)

(regulations prescribing those projects and classes of projects for which an environ-

mental assessment is not required).